Trial Attorney Blog

We have previously written about the federal government’s new policy restricting Medicare payments to hospitals for the extra care required to treat patients harmed by certain preventable infections and medical errors. Now the federal government is expanding the program in an attempt to to provide hospitals with a financial incentive to improve patient care.

Under the expanded policy, Medicare will not make payments to hospitals for care needed after patients suffer from certain surgical site infections (specifically for total knee replacement, laparascopic gastric bypass and gastroeneterostomoy, and ligation and stripping of varicose veins); deep vein thrombosis/pulmonary embolism (formation/movement of a blood clot); and extreme blood sugar derangement.

Medicare considered adding a number of other hospital acquired conditions to the nonpayment list: staphylococcus aureus septicemia (bloodstream infection); Clostridium difficile associated disease (a bacterium that causes severe diarrhea and more serious intestinal conditions such as colitis); Legionnaires’ disease (a type of pneumonia caused by a specific bacterium); Iatrogenic pneumothorax (collapse of the lung) delirium; and ventilator-associated pneumonia. However, none of these hospital acquired conditions were included in the final nonpayment rules just issued by the agency to be implemented on October 1, 2009.

On July 1 of this year the state of California provided a great example for the state of Georgia in prohibiting by law drivers in California from holding a phone and talking while driving. Under the new law, a driver is prohibited from talking on a hand held cell phone while driving. Blue tooth handless cell use is permitted. There is also an exception for emergencies under this new law, however, obviously, the law is intended to promote safety awareness by drivers who are oftentimes distracted while talking on their cell phones.

This law should be emulated by every state in the country, not to mention the state of Georgia. Our firm has seen many accidents where the drivers were on their cell phones at the time of the incident. Indeed, we currently have a case where it appears that our client will lose his foot and possibly his leg due to the inattentiveness of a driver who was on her cell phone at the time.

California has been known in the past to lead the way on innovative laws that are designed to promote public safety. Interestingly, the first state to ban handheld cell phones was the state of New York. Both Connecticut and New Jersey also have similar laws on the books. From 2001 to 2006, police in New York have issued almost 1 million citations to motorists for talking on their phones while driving. Obviously, the law is being ignored by many in the driving public. Nonetheless, laws like this will increase public awareness of the dangers and hopefully will decrease driver inattentiveness.

According to an Article in The Chicago Tribune, the Food and Drug Administration conclusively has linked 3 patient deaths to a foreign substance found in specific lots of Heparin, a drug manufactured by Baxter International. According to the news report, the FDA completed its review of 93 reports of deaths related to Heparin that were received from January through the end of March, a period when there was a huge spike in the potentially deadly allergic reactions from patients who had been injected with this medication. Three (3) of the deaths could be traced to lot numbers of Baxter products that had tested positive for an animal like substance known as oversulfated chondroitin sulfate.
According to Janet Woodcock, Director of the FDA’s Center of Drug Evaluation and Research, “We have what looks like a cause and effect in some patients. We know that they got contaminated Heparin and they died subsequently. This is one of the final links in the chain.”
Baxter recalled this product in February in the wake of the number of allergic reactions reported. Earlier this year, the FDA had announced that there were reports of more than 90 deaths and 1,000 adverse events associated with patients in the U.S. who had used this product. While some of the reported deaths now do not appear to have been related to contaminated Heparin, in many cases, the clinical information available was simply insufficient to specify the cause of death with “clinical certainty.” The government investigation continues.

Allstate Insurance Company is known by plaintiff’s attorneys for engaging in bad faith tactics. Last week, the Missouri Court of Appeals upheld a jury verdict that hit Allstate with more than $16 million in damages for bad faith tactics.

On March 24, 2000, Wayne Davis Jr., while drunk, drove his truck across the center line of a roadway and hit a compact car head-on. The force of the collision pushed the car back more than 100 feet. The driver and the passenger survived but suffered life-threatening injuries, and incurred combined hospital bills totaling $320,000.

The injured parties offered to settle with Davis for his insurance policy limits of $50,000. But, his carrier, Allstate, did not respond until six months later. That was after a statutory 60-day limit for accepting had expired.

According to the National Highway Traffic and Safety Administration, last summer, more than 380,000 defective tires were recalled from the market. What is more troubling than this number is the fact that experts agree that less than 20% of the public was aware of the recalls involved. Accordingly, 80% of the defective tires are still being used and are probably on the roads today. In short, recall notices are rarely received and thus the entire public remains at risk as a result of the continued use of recalled tires. To make sure that your tires are safe, you can log onto the NHTSA website and click on Safercar.gov to check on the recall list.
In the event of an incident involving a defective tire which separates, explodes or otherwise causes a car collision, one should investigate the possibility of whether the tire was recalled and/or whether the manufacturer of the tire properly recalled the tire and/or warned the motoring public of the dangers associated with its use. Dangerous tires threaten all members of the motoring public and thus increasing diligence is needed to protect against these defective products.

On April 30 of this year on a busy interstate here in Atlanta, a Ms. Katherine Armstrong was killed when involved in a collision with an armored truck on a busy interstate highway in Atlanta. The driver of the truck was later charged with vehicular homicide. Ms. Armstrong was cleared of any wrongdoing. Based on what we have learned about this tragic incident, however, the emotional, psychological, physical and monetary damage caused by this wrongful death incident does not stop with the death itself but continues.

Ms. Armstrong was airlifted to the Grady Memorial Hospital following this incident. When she got there, a hospital employee by the name of Tacuma Jawara stole her wedding and engagement rings. This despicable crime was uncovered and the employee was charged with felony theft by taking. Thus, not only did the Armstrong family lose the life of a loved one, they had to undergo the indignity of a hospital employee stealing from a victim of this tragedy. Apparently Grady never conducted a thorough investigation of this gentlemen, for whatever reason, even though as we understand it, he has now been charged with yet another offense arising from a similar theft incident.

The victim’s husband is now left to raise by himself young children ages 1, 4 and 5. Not only did he lose his wife to an apparent vehicular homicide, he was further victimized by a criminal who essentially desecrated his wife’s body and committed acts that are totally and completely despicable. While this is bad enough, the fact remains that the emotional and psychological wreckage from this wrongful death incident unfortunately is only just beginning.

In a major victory for consumers, the U.S. Court of Appeals for the District of Columbia ruled last week that information that automobile and tire manufacturers submit to the government about crashes resulting in death, injury and property damage is subject to release to the public under the Freedom of Information Act (FOIA).

The case was brought by the public interest consumer group Public Citizen. In its ruling the Court rejected the argument of the Rubber Manufacturers Association that it is exempt from FOIA’s disclosure mandates.

Since the 2003 enactment of the Transportation Recall Enhancement, Accountability and Documentation Act, manufacturers have been required to submit the information, referred to as “early warning data,” to the government. The U.S. Department of Transportation has been keeping the information secret while the Rubber Manufacturers Association appealed a trial court’s holding that the Act applied to the information.

On May 14, 2008, the manufacturer of Trasylol officially pulled all remaining supplies of the blood clotting drug from the market. This drug, manufactured by Bayer (AG) is typically used by surgeons to control bleeding during heart surgery. Unfortunately, in a major study published in the New England Journal of Medicine, it was reported that the use of this drug significantly raised the risk of death for patients who used this product as opposed to other similar products on the market. A study conducted by a Canadian group found that patients that had been given Trasylol had a fifty percent (50%) higher death rate than patients who were given alternative drugs.

Bayer (AG) originally suspended the sales of this drug in November of 2007 under pressure from the Food and Drug Administration. Patients who were undergoing heart bypass, valve replacement or other cardiac procedures were more likely to die than others who had received competing blood clotting drugs available on the market. Most the deaths that have been reported have been due to either kidney failure, heart failure, heart attacks or strokes following the surgery. In short, it has been well established that this drug is associated with severe complications attendant to heart surgery including renal failure. What is most troubling about this product is that for years it appears that the manufacturer was aware that it was dangerous but nonetheless concealed these known dangers from the public.

In a February 2008 report by the Television news program Sixty Minutes, it was reported that Bayer had been aware for decades of the safety concerns associated with this drug. Sixty Minutes reported that Bayer had conducted its own internal study to evaluate the risk of patient deaths from Trasylol and had found that there was an elevated risk of death and acute kidney failure associated with its use. Nonetheless, when the FDA conducted a safety review of this drug in 2006, according to the Sixty Minute report, Bayer did not reveal the study to the FDA and successfully lobbied the FDA to keep Trasylol on the market. Allegedly, over a year passed before the FDA again reviewed the adverse effects of this drug and ordered it to be recalled it from the market.

Every serious injury claim our firm handles has its own set of complications, but one of the most complicating facts we are often confronted with is the case where someone is seriously injured in an automobile or tractor-trailer collision and they have no health insurance. Indeed, regardless of the type of claim, whether it be a slip and fall, a products liability claim, medical malpractice or any other tort case, the lack of available health insurance oftentimes severely compromises our ability to obtain justice for our clients. This also severely compromises the ability of the injured individual to obtain the necessary care to improve their health. While we often read in the paper about the crisis of our healthcare delivery system when it comes to poor and the indigent, we see this crises every day in our practice when innocent victim/clients who are suffering are unable to afford needed healthcare.
In a typical case where someone is injured by the negligent acts of a third party, even if the third party has very good insurance coverage, we do not have a “pay as you go” rule which entitles the injured individual to have their bills paid as they are incurred. Instead, we have a system whereby once the claim is fully matured and all of the bills and expenses are known, the injured individual is entitled to reimbursement for such expenses assuming liability for the damages is established. In Georgia as in most jurisdictions, if someone is injured through the negligent acts of a third party, they are entirely on their own when it comes to medical treatment following the injury. In the hypothetical case where a tractor-trailer truck rearends an innocent motorist and severely injuries the occupants of the car, there is no duty of tractor-trailer company or its insurance company to provide the resources necessary for medical treatment needed on an ongoing basis. Instead, the injured individual is literally left to their own resources in terms of getting the treatment necessary to treat their injuries. If there is no available health insurance coverage, this makes it exceedingly difficult for the injured individual to get the treatment necessary to improve their health much less establish the legitimacy and the extent of their personal injury claim.
Injured individuals who have no health insurance have an extremely difficult time obtaining medical care. While emergency rooms cannot turn away an injured individual in an true emergency context, once the person is stabilized, the hospital has no duty to provide ongoing care to them. Thus, the injured individual who is in need of medical care, particularly diagnostic tests such as MRIs, CT Scans and the like have an almost impossible time securing such tests and obtaining the treatment necessary in follow up. Instead, they are left to their own devices in finding healthcare clinics, community health centers and/or doctors who will agree to treat them free of charge. If the injured individual is not qualified for Medicaid, Medicare or any other government sponsored program and has no private health insurance, what they will find is that most doctors do not want to treat them. Doctors do not work for free. They have overhead obligations obviously and therefore work for a profit. If they treat too many patients with no charge, they will go out of business. The same is true of any kind of service company, including lawyers. Thus, the injured individual is in a “Catch 22.” They have been injured through no fault of their own and they need medical care. They have no Medicare, Medicaid or health insurance and even though they need treatment, they can’t find it. Thus, they suffer needlessly and when it comes time to try to help them resolve their legal claims arising out of the accident, which was no fault of their own, there is little or no evidence to support the extent of the injuries because there is a complete absence of MRIs, CT Scans and other diagnostic tests available to confirm the nature and extent of the injuries.
This vicious cycle is often encountered in cases we handle for the poor and indigent. The victimization continues because the injured individual who has done absolutely nothing wrong is without the resources to obtain necessary medical care. Thus, it becomes imperative that the individual find a compassionate doctor or healthcare provider who will treat them on an ongoing basis subject to a lien for their services in the event there is a settlement or recovery in their personal injury claim. This complicates the case because the treatment is oftentimes not as good as it would be if there was full available health insurance coverage.

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In addition to the bicycle laws already covered in past blogs, there are a few others with which all bike riders should be familiar.

One makes it unlawful for any person to sell a new bicycle or pedal unless the pedals on the bike or the pedal is equipped with a reflector of a type approved by the Department of Public Safety. The reflector must be situated so as to be visible from the front and rear of the bike during darkness from a distance of 200 feet.

Another statute makes it unlawful for any bike rider to carry any package, bundle or other article which prevents the rider from keeping at least one hand on the handlebar.