Trial Attorney Blog

Electric adjustable beds have been singled out for causing serious injuries and death. Yesterday, the Food and Drug Administration issued a warning to Invacare Corp. for failing to report and address malfunctions with its electric beds, including electronics that allegedly caught on fire causing injury and death.

The FDA posted a warning letter to the Ohio-based company Tuesday morning. Invacare makes a variety of medical equipment, including wheelchairs, oxygen tanks and electric beds.

In its Dec. 15 warning letter, the FDA said the company has repeatedly failed to document and investigate recurring complaints with its adjustable beds.

Anytime a serious injury case is settled for a particular amount of money, the insurance company for the at fault third party involved will insist on a Release of all claims, not only against their insured responsible for the damages but also for the insurance company issuing the check on their behalf. This is standard as part of any serious injury or personal injury case whereby monies are paid as consideration for a settlement. In all such cases, counsel should be conferred with because the provisions of a Release can be extremely important when it comes to third party claims, medical liens, subrogation and other similar matters.
In a typical Release, the party receiving the settlement funds has to agree to release the paying party and the insured from all other claims regardless of what happens after the date of the settlement. Again, this is a standard provision of any settlement. Once the case is settled, the claim is over no matter what happens thereafter. In exchange for the money, the party receiving the money must completely release the third party and their insurance carrier and if necessary file a dismissal of any lawsuit that has been filed. Usually Releases provide for indemnification agreements whereby the party receiving the money must indemnify or hold harmless, the parties paying the money from any liens filed by third parties such as hospitals, medical providers or other third parties who may have some interest in the matter. Again, all such provisions are standard in personal injury cases but in some cases, they become more important than in others particularly where there are alleged claims of subrogation which must be considered. We will address subrogation concerns in a separate blog. Suffice it to say, however, that Release agreements must be carefully reviewed with counsel to make sure that the client’s interests are adequately protected.

Dangerous hazards are still finding their way into toys despite recently improved safety standards, according to a report recently issued by the American Association for Justice.
According to the report, for years, corporations have knowingly shipped toys with hidden dangers like small parts, loose magnets, asbestos, and other toxic chemicals until outrage from parents and civil lawsuits forced regulators or manufacturers to act.
“As toys have become more sophisticated, so too have the risks associated with them,” said AAJ President Gibson Vance. “Protecting our children requires vigilance from everyone. Regulators, parents, manufacturers, and the civil justice system all play a part in keeping dangerous toys off store shelves.”
For example, earlier this year unsafe levels of cadmium were found in children’s jewelry, a toxic metal known to cause cancer and ranked as seventh on a federal list of the 275 most hazardous substances.
An investigation found the origin of the metal was likely China, where the use of the toxin had been prompted, ironically, by the recent prohibition of using lead. The U.S. imports more than 30,000 tons of toys every year from foreign markets, accounting now for 95 percent of toys sold in the U.S.
While regulators lack the resources and staff to police the market, parents, consumer groups and the civil justice system have stepped into the void.
In 2007, a popular CSI Fingerprint Examination Kit contained a powder found to contain up to five percent asbestos, potentially sending lethal asbestos into the air and into children’s lungs.
Once the hazard was known, manufacturer CBS Consumer Products refused to remove it from store shelves as Christmas approached. Rather than wait for the Consumer Product Safety Commission to negotiate a recall, the Asbestos Disease Awareness Organization filed a civil action to stop sales of the kit.
The entire report is printed in the extended entry portion of the blog.

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There are limited waivers of sovereign immunity when it comes victims of the negligence of a county employee. Unless a county’s sovereign immunity has been waived by statute, there is no legal claim that can be filed. An example of a waiver of a county’s sovereign immunity is the waiver of sovereign immunity by law where a county employee is operating a county vehicle. There is a specific Georgia statute which provides for the waiver of sovereign immunity with respect to such claims. See O.C.G.A. § 33-24-51. If a county employee acting within the scope of his or her employment runs a stop sign, for example, and injuries an innocent third party, in such a context there is a waiver of sovereign immunity. However, as is true of other claims involving potential sovereign immunity defenses, an ante-litem notice must be filed against the county within twelve (12) months of the date of the tortious act otherwise it is barred by operation of law. Absent a statutory waiver of sovereign immunity, no claim can be asserted against a county because without a statutory waiver, sovereign immunity is a complete bar to any such claim.
It is possible to file claims against county employees in limited circumstances for the negligent breach of ministerial duties. A ministerial duty does not involve the exercise of discretionary judgment but merely involves following a simple task usually dictated by policy, procedure or statute. Nonetheless, Georgia case law makes clear that whether an act involves a breach of ministerial or discretionary duty will turn on the character of the specific act, not the general nature of the official’s position. All such inquiries are factually specific. Once again, counsel should be contacted as soon as possible in order to assist in making this determination. Suffice it to say, discretionary acts of county employees will be shielded by sovereign immunity and no valid claim will be recognized by the Courts against either a county or county agent or official.
As is true of any other claim involving a potential waiver of sovereign immunity, because the waiver of sovereign immunity against governmental agents and employees is always limited, if anyone has a potential tort claim against a county agent or official, one should confer with counsel as soon as possible in order to determine whether one has a viable claim that comes within an exception to the doctrine of sovereign immunity.

The Federal Torts Claim Act is found at 28 U.S.C. § 1346. It provides for a limited waiver of sovereign immunity with respect to tortious acts committed by federal agents and employees. Under its provisions, only the United States of America may be named as a defendant, not the agency or employee who committed the tort. An administrative ante-litem notice must be filed within two (2) years after the claim accrues. There is a waiting period before suit can be filed against the United States which is either when the written denial occurs or six (6) months, whichever is earlier.
In order to present a claim one must typically submit to the agency involved a Standard Form 95 Claim form which sets forth the basis of the claim and the amount of the damages being claimed. As is true of the State Torts Claim Act relative to claims against State of Georgia agents and officers, the Federal Torts Claim Act provides for a limited waiver of the United States’ sovereign immunity. The provisions of the Act set forth when the government can and cannot be sued. Provisions of the Act as indicated also have various ante-litem notice provisions which must be followed otherwise the claim can be barred for failure to properly perfect the claim.

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Today, the United States approved the biggest overhaul to the nation’s food safety laws since the 1930s. By a bipartisan vote of 73-to-25 the new law would gives new authorities to the Food and Drug Administration, places new responsibilities on farmers and food companies to prevent contamination, and for the first time, sets safety standards for imported foods.

The Senate vote was one of the few pieces of legislation to receive bipartisan approval in years. The House of Representatives approved a more stringent version of the bill more than a year ago.

The legislation comes after a number of national outbreaks of food poisoning involving products such as eggs, peanuts and spinach in which thousands of people were sickened and more than a dozen died.

There is a State Tort Claims Act found at O.C.G.A. § 50-21-20, et. seq. The Act resulted from an amendment to the Georgia Constitution and became law in April of 1992. It was intended to provide a remedy for torts committed by State officers and employees and establishes a procedure to waive sovereign immunity under certain circumstances to allow suits against the State for tortious acts of state agents, employees and/or officers. Individual State officers and/or employees may not be named as a party to a lawsuit. Under the State Tort Claims Act, the exclusive remedy for a tort committed by a State employee is an action against the state agency involved and not against the employee personally.
It must be noted that if someone has a claim against a state agency or employee they must file an ante-litem notice with the State. The law is very specific in this regard. Notice must be given in writing by certified mail, return receipt requested or a personal delivery letter to the Risk Management Division of the Department of Administrative Services. Additionally, a copy shall be delivered personally to or mailed by First Class Mail to the State government entity involved in the tort. The Notice also must include certain information in order to be valid. It must state the extent of the claimant’s knowledge and belief as to the basis for liability, the time and place of the transaction or the occurrence out of which the loss arose, the nature of the loss suffered and the amount of loss claimed. Once an ante-litem notice is properly filed with all this information, a claimant cannot file suit against the State of Georgia until either the Department of Administrative Services has denied the claim or more than ninety (90) days has elapsed after presentation of the claim, whichever occurs first.
There are twelve (12) areas of State activity specifically excluded from the State’s waiver of its sovereign immunity which include as follows: Losses resulting from any exercise or performance of a discretionary function; acts or omissions in the execution of statutes, regulations or rules; assessment of tax or detention by law enforcement officers; legislative judicial or prosecutorial actions; civil disturbance or riots; assault, battery, false imprisonment, false arrest, malicious prosecution, abusive process, liable, slander or interference with contractual rights; inspection powers or functions; licensing powers or functions; highway and other public work designs when prepared in substantial compliance with generally accepted engineering standards.
As is clear from this list of items excluded from the waiver of the State’s sovereign immunity, all cases are factually specific and must be discussed with counsel. It is also clear that the ante-litem notice provisions must be strictly observed otherwise the claim could be forfeited for failure to properly notify the State in advance of filing a claim. In addition, the waiver of sovereign immunity if it is found to exist in a particular case is limited to $1 million per person with the State’s aggregate liability per occurrence not to exceed $3 million regardless of the number of those injured or killed. An example of this is the case against the Georgia DOT involving a bus of baseball players. Even though there were over 30 claims, the total waiver was capped at $1 million for any one player and $3 million for all the claims.

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Our Atlanta based attorneys frequently pursue cases against nursing homes involving horrible neglect and abuse of elderly and disabled persons.

In most of these cases our attorneys must sort through a maze of companies and entities designed to hide the true ownership of these offending entities and thereby avoid responsibility.

It is encouraging to see that several national lawmakers in the health policy world now want want nursing homes to be more open about who’s running them.

The U.S. Public Interest Research Group, a private consumer advocacy group, recently released its 25th annual study of toy safety. It reported that only a small fraction of children’s toys tested for toxic substances and choking risks have been found to violate federal safety regulations.
The group’s public health advocate commented that while the study did not find perfection in toy safety, it did indicate progress.
PIRG credited a 2008 law that set stronger limits and standards for children’s products for helping to make many of the products on store shelves safer for youngsters. The law was passed in the wake of a wave of recalls of lead tainted toys.
PIRG had 260 toys and other children’s products from major retailers and dollar stores tested for toxic substances such as lead and antimony as well as for the risk of choking presented by small parts. Only four of the items tested violated federal safety regulations for children’s toys.
In its annual “Trouble in Toyland” report on hazardous playthings, the organization focused on three hazards: lead or other metal-tainted toys, soft plastic toys that contain chemicals called phthalates, and toys with small parts that can choke young children.
Higher than permissible levels of lead or antimony were found in four toys. These are a stuffed animal, a baby book, plastic toy handcuffs and a toy gun. The toys were sold at stores including Toys “R” Us and Family Dollar.
Lead can cause irreversible brain damage, and antimony has been linked to fertility problems in animals.
While none of the products tested violated federal limits for small parts, PIRG said several toys were still hazardous for children under 3 because the size was not that much bigger than allowed by law.
The toys identified in the group’s report as potential dangers were:
—A stuffed animal monkey made by Play Pets that contained lead just slightly above the limit.
—The red handle of a baby book sold at Toys “R” Us that contained antimony that was about twice the limit.
—The surface coating of toy plastic handcuffs sold at Toys “R” Us that had excess antimony, many times higher than allowed.
—The surface coating of a wild ranger toy gun sold at Family Dollar with slightly higher levels of antimony than allowed.
The executive summary of the report is reproduced below.

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A disturbing Inspector General report from the shows that medical errors are harming and killing our senior citizens at alarming rates.
An estimated 15,000 Medicare patients die each month, and many more are injured, because of usually preventable medical mistakes in hospitals and other facilities.
The report focused on “adverse events,” defined as “harm to a patient as a result of medical care, such as infection associated with use of a catheter,” and “never events,” which are specific “serious events, such as surgery on the wrong patient, that the National Quality Forum (NQF) deemed ‘should never occur in a health care setting.’”
The Inspector General of the Department of Health and Human Services found:
—An estimated 13.5 percent of hospitalized Medicare beneficiaries experienced adverse events during their hospital stays.
—An additional 13.5 percent of Medicare beneficiaries experienced events during their hospital stays that resulted in temporary harm.
—Physician reviewers determined that 44 percent of adverse and temporary harm events were clearly or likely preventable.
—Hospital care associated with adverse and temporary harm events cost Medicare an estimated $324 million in October 2008.
Significantly, the 2009 loss to taxpayers was “$4.4 billion spent on care associated with events”–which did not even include the cost of followup care.
The cost in lives, health, and taxpayer dollars of preventable medical errors is far too high. Respect for life of our senior citizens requires accountability when harm occurs, and preventive steps to ensure patient safety.
A portion of the Inpsector General’s report is reprinted below:

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