Georgia Injury Lawyer Blog

Infants throughout Georgia and the rest of the country face a clear danger from drop side cribs. Drop side baby cribs have been responsible for the deaths of at least 32 infants and toddlers since 2000, and are suspected in 14 additional fatalities during this time period. These popular cribs have a side that moves up and down to allow parents to lift children from the cribs more easily than cribs with fixed sides.

The Consumer Product Safety Commission, which regulates cribs, has warned about the problem. Its chairman has now pledged to ban the manufacture and sale of cribs by the end of the year. This will have to be done by a new regulation which would make fixed-side cribs mandatory. However, due to federal law, the new regulation may not become effective until late in 2011.

While the child care industry has started phasing out these cribs and some retailers such as Babies R Us and Wal-Mart have taken them off sale floors, they are still being sold for sale on the Internet. The Associated Press found drop-sides for purchase on websites for Sears, Kmart and Amazon. Craigslist also had scores of used drop-side cribs for sale.

Sen. Kirsten Gillibrand, of New York announced last week that she plans to introduce legislation this week to outlaw the manufacture, sale and resale of all drop side cribs and ban them from daycare centers and hotels.

More than 7 million of these cribs have been recalled in the past five years, often because screws, safety pegs or plastic tracking for the rail can come loose or break. The industry insists that babies are safe in drop-sides that haven't been recalled.

But when the hardware malfunctions, the drop-side rail can detach partially from the crib. That creates a dangerous "V"-like gap between the mattress and side rail where a baby can get caught and suffocate or strangle.

In a personal injury lawsuit, it is always difficult for the trial lawyer representing the injured victim to talk about money in the context of pain and suffering. How does one fairly compensate an individual who is suffering as a result of the acts of a third party? Someone who is sitting still at a stop sign and who is rear-ended by a commercial truck, for example, and who sustains a broken neck or back is going to be faced with a lifetime of pain and suffering. How does one fairly compensate such an individual with money? This is a difficult determination which juries must wrestle with and which trial lawyers must address in their presentations on behalf of their innocent clients.

One of the things I think about as a trial lawyer is the ridiculous salaries that are paid to sport figures. There is a recent Georgia Tech graduate, whose name will not be repeated here, who is in the NBA that I read in a news article recently who is making over $50 million per year for a NBA team that did not even make the playoffs. This staggering amount of money, obviously, is way too much money for a basketball player, who has no skills other than being able to shoot a basketball. And yet, if I stand up in front of a jury on behalf of someone with a broken neck or back and I were to ask for $50 million, I would be subject to ridicule and scorn even though my client with a broken neck or back might have to live for as long as 40 to 50 years with incredible pain and suffering. While I agree that 40 to50 million dollars is greatly excessive for such a claim, the disconnect comes when one looks at the value of a single year of basketball for a losing team verses 40-50 years of life in suffering for an innocent victim who did nothing wrong.

The good news is that juries are typically comprised of people from the community with a great deal of common sense. Most juries compromise on issues such as this and reach the best decision they can as to what award of compensation would be fair to provide some financial relief for the innocent victim who is subjected to a lifetime of pain and suffering. Obviously, none of us ever want to be in the position of having to ask a jury to give us fair compensation. This is because none of us want to be subjected to a lifetime of pain and suffering. And yet, in modern society, there are those among us who will be injured, through no fault of our own, and who will have to appear before juries asking that they be treated fairly. The great thing about the American judicial system that is as a rule American juries are fair.

As our firm handles police chases for innocent victims tragically caught up in these dangerous pursuits through no fault of their own, and as we have witnessed many different tragedies in this context, we obviously pay close attention to other similar cases throughout the country. Just this past week we read three different articles about three different pursuits in three different states in which innocent bystanders were killed during these dangerous pursuits. In none of the pursuits that we read about were any of the fleeing suspects being pursued for a felony. One suspect fled from a routine traffic stop, another female suspect was fleeing for reasons unknown to the police in which her baby was killed and a third was fleeing for traffic violations. In all of these cases, the death penalty was imposed upon an innocent third party who had committed no violation of the law and was hit by the fleeing suspect. Had the suspect been safely apprehended, it is likely they would have been given a fine and let go by the court system based on the minor offenses committed. This is an all too familiar pattern.

We have blogged repeatedly about the dangers of high speed pursuits. It makes little or no sense to impose the death penalty on an innocent third party in order to immediately apprehend a non-violent suspect. Thirty-five to forty percent (35-40%) of all police chases end up in crashes. Many of these chases, because of the high speeds involved, involve serious injuries and/or deaths. It is estimated that there may be as many as 1,000 deaths per year in high speed pursuits nationwide. Given these well known statistics, the better approach, which is being followed more and more by enlightened police jurisdictions, is to have a restrictive policy which allows the police to chase only for forcible or violent felonies. Those departments that still allow their officers to chase for non-violent offenses such as minor traffic violations, obviously, are all too willing to risk serious injury or death in order to immediately apprehend a non-violent suspect. We reiterate this makes little or no sense and we have witnessed first hand the tragedy involved in these cases.

We here at Finch McCranie will continue to litigate these cases. We think it is an important public service. If the police adopt restrictive pursuits, research has shown that the number of pursuits will not increase nor will crime increase as this has been documented over and over again. Who can argue against such policies? They save lives, the do not increase crime nor do they increase the number of pursuits in general. It is simply a good policy that should be followed. Until the majority of departments follow these restrictive policies, we intend to litigate against those who refuse to do so and who unnecessarily expose members of the public... the innocent members of the public... to the needless risks of serious injury or death. Let the minor offenders go. It is not worth killing someone to catch them.

Our military service members stand ready to put their lives on the line to protect the freedoms upon which our country is based. Yet, they are not provided the basic remedies available to other citizens who are victims of medical malpractice.
Under a 60-year-old Supreme Court ruling known as the Feres doctrine, service members are banned from suing the federal government for even the most egregious medical errors.

Pending before Congress is a bill that would remove that inequity. Rep. Maurice Hinchey, D-N.Y., is the lead sponsor of the bill, the Carmelo Rodriguez Military Medical Accountability Act, which would amend federal law to “allow members of the Armed Forces to sue the United States for damages for certain injuries caused by improper medical care, and for other purposes.”

Rodriguez was a Marine Corps platoon leader and Iraq war veteran who died at age 29 from a melanoma that military doctors at first correctly diagnosed but failed to refer for treatment and then later misdiagnosed as a birthmark.

“The 7-year old son and family he left behind currently have no legal recourse for this tragic case of malpractice,” Hinchey said in a statement. “Those who were at fault have not been held accountable.”

The bill recently gained the support of the 370,000-member Military Officers Association of America. The Association’s president, retired Vice Adm. Norb Ryan, wrote a letter of support to Rep. Hichey in which he noted, that legal recourse for medical negligence is available to all other citizens, including military dependents, military retirees and survivors and their dependents, and even federal prisoners and wartime detainees. He stated that MOAA agrees that it is inconsistent to treat service members differently.

The bill has also been endorsed by the American Association for Justice, the American Bar Association, Veterans Equal Rights Protection Advocacy, the Alliance for Justice, and Protecting Our Guardians.

The bill recently was approved by the full House Judiciary Committee and awaits a House floor vote.

Medical errors kill and maim thousands of citizens every year. Now, under the new health care reform legislation, something is finally being done to protect innocent potential victims of medical errors.

The new healthcare legislation, which was so vehemently opposed by many as being the destruction of healthcare, puts hospitals on notice that they must improve the safety and quality of care for patients or risk large fines.

The health care reform statute contains dozens of provisions designed to protect patients. These include including fining hospitals in an effort to reduce medical errors, hospital-borne infections and costly preventable readmissions. It is estimated that these three problems alone cost billions of dollars annually.

When considered individually the costs and extent of these problems is staggering.
Preventable readmissions cost the health care system about $25 billion every year, according to accounting firm PricewaterhouseCoopers.

In an effort to alleviate this problem, beginning in 2012, the Department of Health and Human Services will publish each hospital's readmission track record. A “readmission” is defined as a patient returning within 30 days of discharge. High readmission rates tend to indicate hospitals are ignoring patient issues or engaging in premature discharges.

In an effort to stem this issue, beginning in 2012, Medicare will stop paying hospitals for preventable readmissions tied to certain health conditions such as heart failure or pneumonia. In 2014, the policy will be expanded even farther.

The second penalty for hospitals addresses hospital-acquired conditions stemming from medical errors or infections.

The government currently gives hospitals an incentive payment for reporting their performance in areas such as patient satisfaction and care tied to treatment of conditions such as heart failure, pneumonia and hospital-borne infections.

Under the new statute, beginning in 2012, hospitals will be reimbursed according to their score. Higher scoring hospitals will receive higher payment and vice versa.
In 2015, the government will start reporting each hospital's record for medical errors and infections relating to Medicare patients.

About 15 million injuries result every year in the United States due to inferior medical treatment. These include more than than 30,000 people who die annually from catheter-related blood stream infections.

In 2015, Medicare will reduce its payments by 1% to hospitals with the highest rate of medical errors and infections. The government will also no longer pay hospitals for treatment when a Medicaid patient is harmed during a hospital stay.

It is anticipated that these financial incentives and penalties will greatly reduce injuries to patients and save millions of dollars at the same time.

From a consumer, patient and taxpayer perspective, these new common sense provisions are a big win.

Motorcycle fatalities surpassed over 5,000 in 2008. While preliminary estimates forecast a decline in 2009, there has been a steady increase in motorcycle deaths in recent years compared to a decrease in fatalities for passenger vehicles.

A recent study by the Insurance Institute for Highway Safety (IIHS) discovered that motorcycles equipped with antilock brakes (ABS) are 37 percent less likely to be involved in a fatal crash than models without ABS. As a result of these findings, the IIHS is calling on the National Highway Traffic Safety Administration (NHTSA) to mandate this ABS technology on all newly manufactured motorcycles.

An additional study by the affiliated Highway Loss Data Institute (HLDI) found that ABS-equipped motorcycles generated fewer damage claims (22 percent) and lower injury claims (30 percent).

Both studies involved crashes occurring between 2003 and 2008.

Most motorcycles have separate brake controls, one for the front wheel, and one for the rear. If the brakes are hit too hard or with the wrong front/rear distribution, a wheel can lock and cause the loss of control. Alternatively, if the brakes are squeezed too gently, the bike may not stop in time to avoid a crash.

ABS can reduce brake pressure if a lockup is impending or increase pressure again when the bike is under control. It allows the rider to apply the brakes with full force, without holding back due to concerns of locking up a wheel.

In 2009, NHTSA said it would look at the issue but needed more data, No, armed with the IIHS and HLDI studies, the Institute is again calling on the government to mandate ABS on motorcycles.

An outbreak of 19 E-coli related illnesses in Michigan, Ohio and New York may be linked to shredded romaine lettuce sold to grocery stores for use in salad bars and delis, according to the Food and Drug Administration (FDA). Yesterday, the FDA announced a recall of the potentially dangerous produce.

Escherichia coli (abbreviated as E. coli) are a large and diverse group of bacteria. Although most strains of E. coli are harmless, others can be extremely harmful. Strains of E. coli can cause diarrhea, urinary tract infections, respiratory illness, pneumonia, and other illnesses.

The lettuce has been recalled by Freshway Foods, a closely held company based in Sidney, Ohio, according to the FDA press release. Twelve of the 19 people with confirmed cases of E. coli have been hospitalized, including three with potentially life-threatening complications.

The recalled lettuce was sold to wholesalers and food- service outlets in 23 states and Washington, D.C., the FDA said. The lettuce also was sold for use in salad bars and delis in supermarkets owned by Kroger, Ingles, Marsh Supermarkets Inc., and Giant Eagle Inc. The states involved are: Alabama, Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia, and Wisconsin.

The illnesses in the three states were linked to lettuce produced by one processing plant and a New York public health laboratory confirmed E. coli in an unopened bag of lettuce from the same facility, the FDA said in its release

Health insurance companies have been under fire for cancelling policies after the insured becomes sick. Under this policy, called rescission, the companies would scour the application of the insured for any intentional or unintentional error and then use this as the basis to cancel coverage.

The health care reform legislation passed last month by Congress limits rescission to cases of fraud. But that provision won't take effect until Sept. 23. However, several health insurers, bowing to pressure from lawmakers, said last Wednesday they plan an early start to halting the policy.

UnitedHealth Group Inc., Humana Inc. and Blue Shield of California all said they will drop, or rescind, coverage only in cases where a patient has committed fraud or intentional misrepresentation.

UnitedHealth said it will limit its use of rescission immediately. Blue Shield plans to start in May, and Humana said it already restricts rescission to fraud cases. WellPoint Inc., said it will start following the guideline May 1.

A letter dated April 27 and signed by several House of Representatives committee chairs asked health insurance leaders to start limiting rescission immediately. The lawmakers also asked companies to start independent, third-party reviews of rescission cases.

WellPoint, Humana, UnitedHealth and other insurers also announced recently that they planned to get an early start on another reform provision that allows dependents to remain eligible for coverage under a parent's insurance until age 26. The reform also calls for that provision to start in September.

We have recently written about the defective heart defibrillators sold by the Guidant Corporation and the dangers they present. Last week a federal judge in Minnesota rejected a plea agreement between the federal government and the Guidant Corporation, saying that the deal did not hold the company sufficiently accountable.

The plea agreement worked out between federal prosecutors and Guidant requires Guidant to plead guilty to two misdemeanors and pay a $296 million fine.

But, the judge held that the agreement was not in the best interest of justice and failed to adequately serve the public’s interest. He found that it did not adequately address the seriousness of the offenses.

The judge found that prosecutors should have sought probation for Guidant and its parent, Boston Scientific. Probation would have allowed the court to maintain control over Guidant to ensure that agreed upon remedial steps were implemented.
The judge also suggested other provisions that might be suitable in a new plea deal, including charitable activities by Guidant to improve heart device safety and improve medical care among minority patients.

After a hearing last month, several doctors and patients wrote to the judge urging him to reject the deal and arguing that former Guidant executives should be criminally charged in the case.

The case results from disclosures in 2005 that Guidant did not alert doctors and patients that some of its defibrillators had a defect that might cause them to fail. At least six patients died.

Recently, prosecutors charged in court papers that Guidant had knowingly sold potentially flawed defibrillators. But that issue was not addressed in the plea agreement. Instead, the company agreed to plead guilty to two misdemeanor charges that related to the completeness and accuracy of its filings with the FDA.

Dangerous cribs that can injure or kill infants have been recalled. The Consumer Product Safety Commission announced last week that approximately 217,000 Graco cribs have been recalled, due to a malfunction that can entrap, suffocate or strangle infants and toddlers.

The recall includes "drop side" wooden cribs made by LaJobi.

Faulty hardware can cause the drop side to detach from the crib, creating a gap in which infants and toddlers can become wedged or entrapped, posing a risk of suffocation and strangulation.

The CPSC and LaJobi received 99 complaints about the faulty drop side. Children were trapped in two cases and later freed by their caregivers. There were six reports of children falling out of the crib due to the malfunction.

While LaJobi, as the manufacturer, is primarily handling the recall, it marks the third major recall tied to the Graco name this year. Atlanta-based Graco Children's Products recalled 1.5 million strollers in January and 1.2 million high chairs in March.

The cribs were sold, starting in February 2007 at retailers throughout the country for $140 to $200. The crib recall includes Ashleigh Drop Side, Hapton Drop Side, Jason Convertible Drop Side, Kendal Drop Side, Lauren Drop Side, Sarah Drop Side, Shannon Drop Side, and Tifton Drop Side.

Consumers should immediately stop using the cribs and contact LaJobi's recall hotline at (888) 842-2215 to receive a free hardware retrofit kit, the company said.