TOV Injury and Safety Blog

Court overturns malpractice award involving death of one twin and brain injury to a second

The Wilcoxson-Bey family filed suit against Providence Hospital, arguing that they lost one twin, and the other suffered severe brain damage, because of their treaters' failure to adequately monitor the twins' intrauterine development.  The twin fetuses shared a single amniotic sac, raising a high risk of complications--usually involving entanglement of the umbilical cords.  A judge heard the case without a jury at the request of both parties and ultimately found in favor of the family.  The Court of Appeals reversed his decision, holding that he had based it on evidence of causation that was too speculative.

EDITOR'S NOTE:  THIS DECISION HAS BEEN REVERSED ON APPEAL.  REFER TO JUNE, 2009 ENTRY DESCRIBING THE HIGH COURT'S OPINION

The lame-duck Supreme Court wrestles with a second-injury serious impairment

Justice Taylor will be gone from the Michigan Supreme Court in less than a month, and with him goes the majority he relied upon to raise the threshold for demonstrating a "serious impairment of bodily function" in the Kreiner case.   In essence, Taylor grafted a "life-altering" test on top of the legislative language defining a serious injury. On his way out the door, however, Taylor took one more swing at injury victims, in an attempt to bar motor vehicle accident claims.  In Benefiel v. Auto Owners, Taylor and his short-lived majority overturned a Court of Appeals' panel's decision that injury victim Benefiel suffered a serious impairment in the [second] motor vehicle accident where he was injured. 

Court rejects claim that radiologists were apparent or ostensible agents of hospital

In Purcell v. Sturgis Hospital, a panel of the Court of Appeals overturned a default judgment against the hospital and dismissed the injury victim's malpractice claim.  It held that Purcell could not argue that the radiologists appeared to be agents of the Hospital, making the hospital responsible for their negligence in treating him.  The opinion of the Court did not identify when the alleged malpractice occurred, but relied upon a number of "consent" forms executed by Purcell or his mother over the following weeks to hold that he could not reasonably have believed that the radiologists were agents of the hospital.  Purcell had offered Radiology reports which implied that the radiology physicians were a department of the hospital, however, the appellate judges dismissed this evidence as immaterial to the issue of apparent agency.  Since Purcell could not point to an explicit conversation that identified the radiologists as agents of the hospital, he was not allowed to argue to the jury that he believed them to be a part of the hospital.

Clerical pharmaceutical error is not medical malpractice

In a per curium opinion in Crozier v. Henry Ford Hospital, the Court of Appeals held on December 11 that the mistaken substitution of 5 mg of a drug for the prescribed .5 mg is ordinary negligence and not subject to the medical malpractice reforms.  Crozier had received a liver transplant in 2005, and was mistakenly administered ten times the proper dosage by a hospital-system pharmacist.  The Defendant argued that the claim was a malpractice claim and could not be pursued under ordinary negligence rules.  The trial court agreed and dismissed it.  The Court of Appeals relied upon the Bryant and Kuznar cases in concluding that since this case involved no exercise of "medical judgment", and was merely a clerical error, it cannot be a malpractice claim.  The Court held that this type of case must be distinguished from cases where the wrong generic medication is administered, or an error has resulted from allegedly poor professional judgment.

The latest in insurance "loophole" arguments

A superficial search of this weblog will provide numerous examples of insurers attempting to avoid obligations they have collected premiums to cover--through nonsensical or perverse construction of the insurance policy contract.  The industry hit a new low in Texas this fall, however, when Great American Insurance Company filed an argument claiming that it was not responsible to provide "excess" coverage for several deaths that resulted from an office building fire.  The insurer is claiming that although its policy including fire liability coverage, it owes no coverage for the seven deaths that occurred in a 2007 fire because the victims all died of smoke inhalation.  The insurer is arguing that it owes no coverage for smoke inhalation deaths because it included an exclusion in the policy for damages caused by "pollution".   

Epilepsy drugs including Topamax, Lamictal, Lyrica Neurontin and 7 others must carry label warning of suicide risk.

Bloomberg.com reported on December 17 of 2008 that the US Food and Drug Administration finally responded to a 20-0 vote of outside experts on an Advisory recommendation from July and will require a suicide warning risk on 11 different anti-seizure medications.  After reviewing 199 studies of 11 epilepsy medications, scientists concluded that patients taking them should be monitored for worsening depression or suicidal ideations.  The patients suffered 4.3 suicide events per 1,000 patients, compared with 2.4 suicide events for patients receiving a placebo.  That translates into one suicide-related "event" (not necessarily an attempt) for every 350 patients treated.  Manufacturers, and particularly Pfizer, Inc., fought the recommendation.  The warning won't be a "black box" warning of strictest caution.  Approximately two million Americans suffer from epilepsy.   Currently, several of these drugs are also being used to treat psychiatric disorders.  We believe that the latter treatment is "off label", or not approved by the FDA, however, we did not investigate that issue.

Federal Trade Commission accused Ovation Pharma of price-gouging on Ondocin and NeoProfen

The two drugs are used to treat premature infants born with a common heart defect called ductus arteriosus.  According to Reuters, Ovation bought the rights to Indocin in 2005 and to NeoProfen in 2006.  After consolidating and eliminating the potential competition between the two medications, Ovation immediately raised the price by about 1300 percent, from $36 dollars to $1300 dollars per vial.  About 3,000 children born in the U.S. each year require treatment with the drug.

Long haul trucker is engaged in the business even when searching for lodging between contracts

In Auto-Owners v. Redland Insurance Company, the Sixth Circuit was faced with a dispute between two carriers with regard to which carrier had priority in responding to a liability claim.  An employee of their insured, David Gale, was operating a semi-tractor trailer in southwest Michigan when he fell asleep and killed another motorist.  Gale had completed a delivery in Grand Rapids, was awaiting his next assignment, and had telephoned his employer to indicate he was looking for a location east of Chicago to bed down for the night.  Under the terms of its coverage, Redland owed liability coverage to the victim only if Gale was not "in the business" of trucking when he fell asleep and crossed the centerline. 

 AutoOwners took the position that when Gale was between assignments and searching for a place to sleep, he was not "in the business" of trucking.  AutoOwners' argument finds some support in decisions like the Michigan holding  several months ago involving a traveling businessman who became paralyzed in a car accident on his way to a restaurant for dinner.  The victim in that case was staying in a motel while out of town on business when he was hurt.  The judicial activists who protect insurers in Michigan held that he was not engaged in his employment (and not eligible for workers compensation) when he got hurt.

Frankly, we think the Sixth Circuit got it right in Gale's case, and both men were "engaged in their business" at the time of the motor vehicle collisions.  It is enlightening to note, however, that the effect in each case was to diminish the insurance coverage or obligation owed to the injured party.

Appellate Court rejects injured worker's claim he was "temporarily unemployed"

In Stanny v. Progressive Michigan Insurance, a panel of the Court of Appeals rejected the injured plaintiff's claim for wage loss benefits under MCL 3107a.  The latter provision allows a person injured in a car wreck to collect three years of lost wages if he or she was laid off or temporarily out of the job market at the time of the car accident.  In Stanny's case, the Court was compelled to exclude him from this benefit because he had left his employment by choice in 1997 and "the totality of circumstances" surrounding his claim "provided no evidence that he would have returned to employment but for the accident".  In a footnote, the judges explained that they need not address what level of evidence would be necessary to demonstrate a probability of returning to work, since the Plaintiff produced no evidence of any probability.

Court of Appeals overturns jury verdict based on trip over floor grate

Sandra Ellis sued the homeowner after she tripped while entering his garage at 10 pm and fell suffering serious injuries.  The jury returned a verdict holding the homeowner responsible for 51 percent of her injuries, apparently believing Ellis's claim that because the garage was dark, she did not see the floor grate just inside the garage door.  The Court of Appeals overturned her verdict and dismissed her claim, holding that her testimony was not adequate to prove that the grate was not "open and obvious" as claimed by the homeowner's insurer and the homeowner's witnesses.

911 Operator who belittles caller is not responsible for "negligent infliction of mental anguish"

Lorraine Hayes was shot several times by a former boyfriend.  She called 911 on her cell phone, but was berated by the 911 operator who repeatedly insisted that she must be a mental patient.  Eventually Hayes recruited her son in Minnesota to send police and an ambulance to her aid.  When Hayes sued the operator for negligent or intentional infliction of emotional distress and anguish, her claims were dismissed unless she is able to prove that the 911 operator acted with intent to injure her.

Pools and spas require new drain covers on Saturday to protect children

Last year, Congress passed a broad new law requiring that public pools and spas be modified to prevent children from being trapped under water.  The rules go into effect on December 20, 2008, and Newsday.com reports that many pools remain out of compliance.  The Consumer Product Safety Commission announced this week that it will focus its enforcement efforts initially on public baby and wading pools and in-ground spas with flat drain grates and only one drain.  It considers these pools to be the most dangerous.  A spokeswoman noted that the federal government did not allocate any money to the CPSC to enforce the new rules.

Mattel pays $12 million to end States' claims arising out of lead in toys

Bloomberg.com reported yesterday that Mattel had reached agreement with 39 states to settle claims that it shipped toys contaminated with lead paint.  Hopefully the settlement wiped out some of the excessive profit generated by manufacturing the toys in China where there was little or no regulation of products or worker protection. 

Jail screener is not "providing medical care or treatment"

Under Michigan law, jail and prison employees owe minimal levels of care to prisoners, normally.  The employees of government are responsible for injuries they cause only if they are found to have acted with "gross negligence"; this standard is relaxed to the customary threshold of ordinary negligence or "due care" if the actor is providing medical care or treatment in a state institution.  Under federal law, the standard of culpability for an employee supervising inmates and prisoners is "deliberate indifference" to the inmate's medical needs. 

Study demonstrates colonscopy is far less effective than previously believed

A Canadian study published in this month's Annals of Internal Medicine has profoundly altered our understanding of the effectiveness of colonoscopy as a screening device.  While doctors previously considered the colonscopy to be 90 percent effective in identifying tumors, results of this study suggest it is effective in preventing 60 to 70 percent of cancers.

U.S. Supreme Court allows Maine smokers to sue "light" cigarette manufacturers for fraud

In a 5-4 decision, yesterday the U.S. Supreme Court rejected cigarette manufacturers' attempt to preempt state law fraud claims arising out of the sale of "light" cigarettes. 

Recoverable expenses and services where catastrophically injured no fault victim lives at home

In Hoover v. Michigan Mutual, the Court of Appeals recently addressed the complicated issue of caring for a catastrophically injured accident victim.  Under Michigan's no fault act, the insurance company obligated to provide Personal Injury Protection [PIP] benefits to the victim (usually the insured's own company) is required to pay all of the expenses reasonable and necessary for the victim's "care, recovery or rehabilitation".  Michael Hoover was struck by a drunk driver, as a child, and has been cared for at home by his parents for more than 20 years.  The defendant in this case was the insurer of the drunk and responsible for Michael's PIP benefits because there was no auto insurance in his household.  Michigan Mutual had discontinued paying certain of Michael's parents' expenses and the lower court had awarded family these expenses, plus fees and costs.

Menopause hormones confirmed as contributor to breast cancer

For years, alert doctors and scientists have recommended that women avoid taking hormones at menopause because they increase the risk of breast cancer.  That risk was confirmed yet again last week when the Women's Health Initiative revealed at the San Antonio Breast Cancer Symposium new data from a recent study.  The study started almost a decade ago, and was revised in 2002, when doctors concluded they could not ethically maintain women on estrogen  and progestin pills, given the steeply increased risk of breast cancer and heart problems.  Researchers continue to follow the study subjects for additional data.

Worker safety takes a back seat at construction site

In Wallace v. R.J. Pitcher, Inc., the Court of Appeals held that a catastrophically injured man could not sue the General Contractor responsible for safety on the job site because his attorneys could not prove that the unsafe work area affected a "significant" number of workers.  Wallace worked for a subcontractor installing sheet metal at the Somerset Mall when he fell through a second story floor in a common work area.  While the contractor's foreman claimed Wallace had been warned of the unsafe second story floor, Wallace claimed otherwise. The Court of Appeals dodged the question of warning by holding that since only Plaintiff and two plumbers were exposed to the dangerous floor, the general contractor had no duty to address the unsafe condition.  The Engler Supreme Court had previously limited a general contractor's duty to keep common work areas safe to those areas which are accessed by a significant number of workmen.

Wrongful death "cap" on non-economics does not limit household service expenses

More than a decade ago, the Michigan Legislature adopted limits  (or so-called "caps") on the amount of damages an injury victim could recover for non-economic damages in some cases.  Medical malpractice insurance companies have aggressively used these "caps" to limit the recovery of malpractice victims:  among other successes, they have persuaded the Supreme Court to apply the "cap" to wrongful death malpractice claims.  The Defendants in Thorn v. Mercy Memorial Hospital attempted to go one step further:  they persuaded the local court to rule that the household services previously provided by the malpractice victim could not be collected by her family.  They also argued that household services were collectible, the household service expenses should be considered a "non-economic" damage and reduce or eliminate the other damages recoverable for pain and suffering or loss of society and companionship under the cap.

Obnoxious medical malpractice defense rejected; decision to discontinue life support is not "the cause of death"

The Baldwins brought a medical malpractice claim against their doctors and Hurley Hospital after their son, Ethan suffered hypoxic brain injury during delivery. Ultimately, the Baldwin's son died when the parents elected to discontinue his respiratory support; the Defendants' experts conceded that Ethan "basically would be a vegetable" and his own doctors told the parents that if Ethan survived he would be profoundly impaired. 

The doctors' insurance company then persuaded a local judge to dismiss the Baldwin's wrongful death claim because their decision to discontinue life support was a "superseding, intervening cause" of Ethan's death, rendering the treaters no longer responsible.  The Court of Appeals unanimously reinstated the case, rejecting outright the insurance company's claim and the trial court's decision.

Allstate required to pay fees for overdue PIP benefits, despite being second in priority

In Pernell v. Allstate, the Court of Appeals required Allstate to pay the injured family's attorney's fees and costs, even though QBE Insurance was lower in priority to pay PIP benefits and ultimately was required to pay them.  The Court noted a longstanding statutory and common law policy obligating a no fault insurer to pay benefits when due, and to dispute priority issues with the remaining insurance carriers.  

State Farm's unpaid attendant care debt is upheld

Raymond Andres was badly injured in a car wreck and required 24-hour attendant care.  State Farm owed Raymond Andres's ex-wife $126,000.00 in attendant care by the time she sued as his guardian to collect for late payments.  State Farm denied the obligation, claiming that it had proved in a separate action that its adjuster and Andres's original attorney had collaborated to commit fraud in achieving an agreement to pay Andres' guardian $18,000 per month for his care.

Farm Bureau loses bid to exclude coverage alleging "intentional act"

Farm Bureau has been very aggressive in denying coverage and in exploiting the highly political Michigan Supreme Court for advantageous rulings.  This week it lost an aggressive attempt to deny coverage.  Richard Frederick was forced to sue Farm Bureau, his insurer, after he accidently caused flooding to occur on his neighbor's property.  Farm Bureau denied coverage alleging that his efforts to change the grade of his property by adding fill voided his coverage because his actions were alleged to be illegal and intentional acts excluded from coverage.  Farm Bureau also alleged that the flooding of the neighbor's property was not an insured "accident".

Premises' owner not responsible for head injury caused by door that jumped its track

In Hartfield v. Stop 'N Lock Properties, the injured man's claim against the property owner where he was hurt was dismissed by the trial court and the Court of Appeals.  Hartfield's attorneys claimed that the owner should have known that the injury-causing door was dangerous, and would have known of its dangerous condition if it had properly inspected its property on a timely basis.   Hartsfield's attorneys argued that the evidence at least created a question of fact for the jury to resolve regarding this issue.

Dismissal of "serious impairment" claim upheld on appeal

The Saginaw case brought by Julie Garcia against the driver who injured her, Dale Doyle, was dismissed in the trial court.  The Court of Appeals upheld the dismissal, finding that Ms. Garcia did not satisfy the Taylor Supreme Court's Kreiner standard of "serious impairment".  Ms. Garcia suffered a fracture of her seventh cervical vertebra.

Claimants' rights are extinguished by execution of allegedly-unintended Release

In Jack v. Hastings, the Court of Appeals upheld the Grand Traverse County Ciruit judge's dismissal of a follow-up contract claim brought by the owners of a condominium against their insurer.  The condo owners had suffered a substantial water damage claim and received a $34,000.00 payout by its own insurer.  The owners then pursued a negligence claim to recover more fully for their damages and achieved a settlement of an additional $180,000.00 from the at-fault party.  The owner then attempted to pursue a contract action against its own insurer, to recover the remainder of his damages. 

Malpractice defenses based on technicalities are dismissed by Court of Appeals

Two cases where medical malpractice insurers sought dismissal based on tecnicalities were recently addressed by panels of the Court of Appeals.  The Court rejected both "loophole" defenses. 

Traffic accidents are primary killer of teenagers in developed world

A recent report by the World Health Organization addressed childhood fatalities in developed and undeveloped countries.  It noted that world-wide, accidents kill 830,000 children each year--the equivalent of all of the children in metropolitan Chicago.  The major causes are drowning, burns, traffic accidents, falls and poisoning.  In the developed world, motor vehicle collisions are the primary threat to kids.

Emergency physicians warn that E.R.s are near collapse

In an earlier entry on this site, we discussed studies that warned about the increased stress on hospital emergency rooms.  The ridiculous wait involved in seeking emergency care has reached epidemic proportions in some hospitals, with sometimes fatal results.  We also pointed out that the impact of these problems affects both uninsured and insured patients, as the average length of time for a suspected heart attack or stroke victim to be evaluated, for example, increases by precious minutes accross the country.

More reporting on asthma

Asthma and respiratory issues have received a fair amount of attention this month.  In 1980, according to the Centers for Disease Control and Prevention, four percent of children were diagnosed with asthma:  today, we have fifty percent more cases, with six percent of children diagnosed.  Predisposing factors include genetics, allergens, and a dirtier environment.  The article didn't mention it, but we may also be noticing asthma more as we "tighten up" interior environments to be more energy efficient.  We also may be better at diagnosing asthma than we were thirty years ago.  In any event, the potentially life-threatening illness is more common than it was.

Manufacturer and CPSC ignored warnings of crib safety

The Chicago Tribune reported today that both Delta Enterprises, the crib manufacturer, and the Consumer Product Safety Commission ignored evidence of danger for months prior to the recall of 1.6 million cribs.  A 6-month old from Long Island died in 2004 when he was trapped between the side railing and mattress of his crib after the railing left its track.  The Tribune investigation found that Delta and the CPSC ignored a decade-long "trail of warning signs" before the CPSC, in 2008, finally uncovered the pattern of death and injuries in its data base designed to better identify crib hazards.

Wal-Mart pays 54 million dollars to settle working hours lawsuit

On December 8, WalMart settled a Minnesota class-action suit by paying workers a total of 54 million dollars.  The suit alleged that WalMart cut workers' break time and commited other violations of Minnesota's wage and hour laws.  It included 100,000 current and former hourly employees who worked for WalMart in Minnesota between 1998 and 2008.  This summer a judge held that the company had violated Minnesota law by willfully allowing managers to require employees to work "off the clock". 

Los Angeles judge rules that simply offering new, safer toys does not immunize retailers

An effort by Wal-Mart, Mattel and others to immunize themselves from liability for selling dangerous toys by simply offering new, safer toys, was rejected by the California judge in a product iability suit.  The ruling was made in a class action suit seeking medical monitoring and other remedies from the corporations responsible for selling toys with toxic levels of lead.  Michigan residents have no recourse against retailers for selling defective toys, since "tort reform" has already immunized sellers from most product liability claims. As a result, Michigan retailers have no incentive to identify safe products or manufacturers or to require the manufacturers to insure the safety of their products.  The latter requirement is particularly important in cases where defective products are made abroad or in sovereign nations, such as China, where the government owns the factory and won't allow service of process.

Researchers report an epidemic of bedsores among hospitalized patients

In the past 14 years, the number of hospital admissions in the U.S. has increased by only 15 percent, however, the number of patients suffering a bedsore has increased by 79 percent, according to the federal Agency for Healthcare Research and Quality.  Their numbers are based on a survey of records that identified 503,000 patients admitted to U.S. hospitals in 2006 who had suffered bedsores.  Bedsores (also called decubitus ulcers or pressure sores) are caused by constant pressure on the skin.  The complications of bedsores can be serious and even fatal.  The best method of avoiding them is to shift bedridden patients every two hours and to maintain excellent skin hygiene.  Clearly, one cause of this so-called "epidemic" is the fact that the hospitalized patient population in 2006 is older, frailer and sicker than it was in 1993.  Cost-cutting changes have also been made in nurse staffing that probably result in less R.N. supervision of individual patients.  In any event, a researcher for the federal agency commented that "besores are preventable, but it's not easy". 

CT scans and MRIs may not be reliable indicators of the source of pain

On December 9, the New York Times published an article addressing the increasing controversy over abnormal findings on CT scans and MRIs.  The Times talked to the authors of two separate studies that found radiological abnormalities in just about as many healthy, pain-free individuals as were present in patients seeking treatment for pain.  The studies involved patients with knee pain and back pain.

Joyriding teenager in family auto can collect PIP benefits despite "unlawful taking"

The Court of Appeals reluctantly followed Supreme Court precedent in distinguishing car theft and a child's unlawful use of the family auto.  Under section 3113 of the no fault act, a person "unlawfully taking" an auto cannot collect PIP benefits (i.e., medical and limited lost wages and domestic services).  The Supreme Court previously drew a distinction that allowed joyriding family members to collect PIP expenses, even though they did not have consent to take a family vehicle. 

Court upholds award of unpaid commissions and double-damage penalty

The Court of Appeals recently upheld an arbitration and Circuit Court holding that punished an employer for wrongfully withholding earned commissions from a fired employee.  The case is Versatube Stamping Corporation v. Louis G. Conti.  Pursuant to the Sales Representative Commission Act, MCL 600.2961, the Court awarded Conti both his unpaid commissions and double-damages.  Versatube had argued that Conti did not meet the statutory definition of a "sales representative" despite the fact that by contract, he was to be paid a commission for "new work".  The Court also refused to reverse the award based on Versatube's complaint that Conti had  discussed child-raising during a brief "ex parte" conversation with the arbitrator during a bathroom break.

Court rejects pediatric neurologist's testimony that abnormal uterine forces caused cerebral palsy

In the recent Mock v. Hackley Hospital case, the Court of Appeals held that the Plaintiff's expert, a pediatric neurologist, could not offer testimony linking their child's cerebral palsy to the delay in delivering the child after two hours of Pitocin failed to induce dilation.  The plaintiff's specialist doctor testified that abnormal uterine pressures caused a reduction in blood supply and oxygenation, and the defendants admitted that compressive forces on the fetal brain can cause brain damage. 

Court affirms verdict for woman who fell through unguarded access hole in attic

In Evans v. McBride, the Court of Appeals upheld a jury's decision that the homeowners' insurer should compensate a women who fell through an access hole that was covered only by drywall. The insurer posed numerous objections to the verdict, including claims that the homeowner owed no duty to warn of the danger, that the woman who fell should have observed it in time to avoid the hole, that the plaintiffs should not have been able to instruct the jury that the hole was a violation of a municipal ordinance, and raised other technical complaints with how the trial was conducted. The Court of Appeals dismissed these objections and upheld the verdict, noting in particular that the Defendant was aware for months that the plaintiff intended to establish the violation of a safety ordinance, and that the ordinance was relevant to showing that the access hole was an unsafe condition.

More criticism of weak oversight of U.S. hospitals

A recent article used the State of New York to demonstrate the problems associated with weak oversight of U.S. hospitals.  The article noted that a 1999 report by the Institute of Medicine found that hospital errors caused as many as 98,000 preventable deaths each year.  Despite this record, there is no federal oversight agency, and the Joint Commission on Accreditation of Hospitals--created by the hospitals themselves to compile standards and investigate problems--is underfunded with virtually no power to sanction.  It employes only 1,000 people to accredit and investigate 17,000 in-patient institutions.  Prior investigations suggest that it has never actually closed the doors of a hospital that attempted to stay open.

Internal documents suggest AstraZeneca knew Seroquel can cause diabetes in 2000

Bloomberg.com reported this week that internal company documents suggest that AstraZeneca knew as early as 2000 that Seroquel posed an unacceptable risk of diabetes for patients taking the anti-psychotic.  Seroquel earned the company $4.03 billion dollars last year, perhaps explaining why AstraZeneca has fought removing it from the market and contested the 15,000+ consumer claims alleging unacceptable side-effects.  Eli Lilly has reportedly paid $1.2 billion dollars to settle 31,000 claims related to its similar anti-psychotic, Zyprexa.  Johnson & Johnson produces a third, similar drug known as Risperdal, and also faces a multitude of consumer actions.  According to the internal memoranda, 2.4 percent of patients who began treatment with normal blood sugar levels registered as technically diabetic after one year of treatment with Seroquel. 

Toy makers agreed with California Attorney General to reduce lead levels

On December 4, Mattel and other leading toymakers settled a California lawsuit, brought under Proposition 65, which was approved by voters in 1986, to limit lead levels in toys.  A Los Angeles City Attorney noted that there is "no safe level of lead" in explaining the resolution of the case in the wake of a recall of numerous toys, lunch boxes, jewelry and novelty items.  The manufacturers agreed to pay $1.8 million dollars in fines and fees, with about half dedicated to a fund to test toys for lead toxicity.

CVS and Rite-Aid embroiled in litigation over selling expired products

CVS Caremark was sued this month by the State of New York for selling expired products, on the same day the State announced the settlement of similar claims against Rite Aid, according to Bloomberg.com.  Among the expired products sold by CVS in an earlier investigation were over-the-counter drugs sold after their expiration date.  The current investigate documented sales of more than 600 expired products, including baby formula, at 122 Rite Aid stores and 148 CVS stores.  In June, the California Attorney General made similar accusations against CVS, and the Fairfield Department of Health in Pennsylvania documented similar problems.  The current NY case is People v. CVS, 08-402931.   If you shop at these discount retailers, be sure to check the product expiration dates:  the store employees and managers are not.

Overworking medical residents continues and is a cause of medical errors.

In 2003, the Accreditation Council for Graduate Medical Education enacted new "rules" to govern the number of hours medical residents could be required to work.  The new rules were a response to studies which confirmed that fatigue was a major factor in medical errors and in serious resident health problems such as depression and motor vehicle collisions.  The Insititute of Medicine issued new recommendations this month, suggesting that residents should not be allowed to work more than 16 hours without a mandatory five-hour sleep break, they should get one full day off per week, and at least two back-to-back days off each month. The Institute of Medicine is a branch of the National Academy of Science.

Department of Justice study of state civil trials

In October of 2008, the Department of Justice released a study of 27,000 civil cases from 50 states.  It came to the following conclusions:

    1.  Plaintiffs won in 56 percent of all cases.

    2.  Plaintiffs were more likely to win before a judge (68 percent) than a jury (54 percent).

    3.  The median award for plaintiffs was $28,000.00.  Four percent of plaintiffs recovered more than a million dollars; 14 percent recovered more than $250,000.00.

    4.  Sixty-one percent of the trials involved "negligence" or tort claims.  Most commonly they arose from motor vehicle collisions.

    5.  Punitive damages were awarded in five percent of plaintiff cases, with the median award of punitive damages being $64,000.00.

    6.  There was a substantial drop in the number of civil trials, and in the average award, from 1992 to 2005.  In the nation's most populous 75 counties, the number of trials decreased by 72 percent and the median final award decreased by one-third.

    7.  The median size of product liability awards and medical malpractice awards did increase over this time period:  plaintiffs were less likely to get to trial, and less likely to win, but the cases that won were stronger and apparently justified a larger award.

"Independent" roofer's right to collect workers compensation

An insurer recently lost another round in the ubiquitous battle over whether an employee can be defined as an independent contractor and denied the right to collect workers compensation.  Many employers, some as large as FedEx, attempt to treat their employees as independent contractors in an effort to minimize employee benefits and expenses. 

Farm Bureau denies another claim on a technicality

Farm Bureau has been one of the more aggressive insurers in relying on the pro-insurance Michigan Supreme Court to avoid paying claims.  It was successful again in Sherman-Nadiv v. Farm Bureau, where the insured wasn't allowed to challenge a jury verdict because it had not filed the proper motion in the lower court.  The case involved a rental property that the plaintiffs had insured with Farm Bureau.  The policy contained language in the fine print that excluded coverage if the home was "unoccupied" for 30 days, unless it was "being constructed".

Another insurance claim arising out of an accidental shooting

Michigan insurers have become far more aggressive in attempting to deny coverage for accidental shootings.  In recent years, we have been forced to litigate the fact of coverage in the case of hunting accidents and carless use of a BB gun by kids.  In Pioneer State v. Alore, et al., the appellate court adressed this issue once again.  The appellate panel had to consider both whether an "accident" had occurred and whether coverage was excluded by an "intentional or criminal act".

Interpreting the two-inch sidewalk rule

Diane Gadigan suffered serious injury when she fell on a City of Taylor sidewalk.   The sidewalk where she fell was joint of two "teeter-totter" slabs where neither side demonstrated a full 2" high defect or discontinuity.  The City argued it could not be held responsible for her injury because the statute addressing sidewalk defects as an exception to governmental immunity immunized the City from defects of less than two inches.  The Appellate Court had to explain to the City how to interpret statutory language.