Not long ago, we recounted a controversy within the Food and Drug Administration regarding its division charged with approving medical devices. That controversy was further stoked yesterday when nine scientists within the division authored a letter to President Obama criticizing FDA management of the approval process and charging that unsafe devices are routinely approved without adequate testing.
Continue reading "More criticism of FDA's medical device approval process" »
A woman named Sherri Martin sued Northern Michigan Hospital and a group of doctors alleging that she suffered serious complications as a result of poor care by doctors and nurses after surgery. For some reason not explained in the reported opinion, the claim against the doctors was voluntarily dismissed by Martin's attorneys: from the context, it appears that Martin's attorneys became convinced that her poor care resulted only from inadequate communication from the post-op nurses to the surgeons.
Continue reading "Slick tactics secure dismissal of malpractice claim against Northern Michigan Hospital" »
The family of Donny Harrison sued Harper Hospital and Dr. Paul Swerdlow, alleging that Swerdlow provided inaequate care to their child. Swerdlow's insurer attempted to dismiss the case alleging technical defects in the Notice of Intent filed by the family and in the qualifications of the family's physician expert witness.
Continue reading "Malpractice insurer's claims of technical defects are rejected." »
Allegedly, Katrina Gorges died as a result of injuries suffered when she fell while leaving a friend's home. She suffered a fractured hip and complications after falling on the sidewalk while leaving at 1 a.m. Her family alleged that she fell because of the combination of a lack of lighting, an uneven sidewalk, and slipperiness caused by weather conditions.
Continue reading "Hazard is "open and obvious" despite code-violation lack of lighting" »
This week, the State of Florida denied State Farm's request to increase its homeowner insurance rates by more than 47 percent. In response, the company has announced its intention to drop the 1.2 million policy holders who insure their Florida homes with State Farm; it plans to continue to write all of its other profitable lines of insurance in the state. State Farm claims that its Florida subsidiary lost money during the tough 2004-5 hurricane season, and is taking too long to repay loans it was forced to incur with the parent company.
Continue reading "State Farm threatens to abandon Florida homeowners" »
The City of San Francisco filed suit this week, alleging that the State of California has illegally allowed "gender rating" by health insurers to create an enormous disparity in the cost of individual insurance for men and women. The suit claims that under the system approved by the state's regulator of insurance, women pay as much as 39 percent more for coverage. The defendants apparently don't deny this disparity. The Los Angeles Times attributes this explanation to bone-headed Blue Shield spokesman Tom Epstein: "Our egghead actuaries crunched the numbers based on all the data we have about healthcare" and found that women awere more accident prone than men and more likely to break bones or get sick."
Continue reading "Women pay 39 percent more for individual health policies" »
Federal officials disclosed on January 28 that the Peanut Corporation of America, which is responsible for the salmonella outbreak that has killed 8 and made more than 500 people ill, had "knowingly shipped contaminated peanut butter 12 times in the past two years". The Company had conducted internal testing and found salmonella in its product throughout 2007 and 2008, but continued to sell it to Kellogg and McKee Foods (Little Debbie) and hundreds of others.
Continue reading "Georgia processor knowingly sold salmonella-tainted peanut paste" »
On January 27, Congress approved passage of a civil rights bill that will overturn the much-criticized 2008 decision of the U.S. Supreme Court in Ledbetter v. Goodyear. That decision eliminated many discrimination claims before the victim was aware even became aware that an illegal action had been perpetrated. Near the end of 2008, Congress passed another act, repudiating decisions by the Supreme Court which had greatly limited the breadth of the Americans with Disabilities Act.
Continue reading "Ledbetter bill passed by Congress" »
The New York Times reported this week that brain damage commonly associated with boxers has been found in the brain of a sixth deceased former NFL football player under age 50. Doctors at Boston University School of Medicine identified chronic traumatic encephalopathy (CTE) in the brain of Tom McHale who died at age 45 and played pro ball for nine seasons. This condition can be identified only on autopsy and has been found in each of the former pro ballplayers who have died under the age of 50 and been tested.
Continue reading "Additional evidence of cumulative brain injury from the NFL" »
For some time, there has been a brutal disagreement over whether mercury in older vaccinations caused or contributed to the development of autism in children. Parents of afflicted children and some health care providers swear by the connection, based primarily on the timing of the development of the child's symptoms, while many "mainstream" health professionals compare these claims to "holocaust deniers" (that is, they suggest that there is no sound, scientific basis for the attribution of causation). Some critics have gone so far as to accuse parents who don't innoculate their children of being parasites: relying upon other families to protect their children from communicable disease. Needless to say, unfortunately the debate has become something less than civilized. A new study from Italy appears to support the view of scientists who argue that there is no scientific causation connection.
Continue reading "Italian study regarding vaccines, autism and mercury poisoning" »
A unanimous panel of the Michigan Court of Appeals recently reinstated the death claim filed by the family of Burr Needham. He died in the Mercy Memorial Nursing Center, where he was recovering from a fractured hip. The cause of death was determined to be "acute morphine intoxication", and the family suggested, not surprisingly that he had been over-medicated.
Continue reading "Court of Appeals reinstates malpractice death case" »
The U.S. Supreme Court last year held that individual victims cannot sue if they are injured by defective medical devices, if the product was approved for safety by the FDA. This week, the Government Accountability Office reported that the FDA has failed, in some cases for decades, according to the New York Times, to rigorously review the safety of medical devices.
Continue reading "Authorities criticize FDA regulation of medical devices" »
The New York Times reported that the Blakely, Georgia plant that the CDC believes caused the outbreak of Salmonella in the U.S. had a history of cleanliness problems. It was cited repeatedly in 2006 and 2007 for "dirty surfaces", "grease residue" and "dirt buildup" throughout the plant and 2008 inspection reports found the plant "repeatedly in violation of cleanliness standards".
Continue reading "Plant that caused Salmonella had a poor sanitation history" »
A disappointing decision by the Court of Appeals this week dismissed the retaliatory firing claim of Martha Gullett against her employer, Autoform, Inc. Ms. Gullett injured her hand while working as a press operator in 2002. She returned to work after several months and in an attempt to accommodate her injury, she was assigned a job as a "checker" performing repetitive tasks. Over the following three years, she was forced to take additional time off with pain in the injured hand and ultimately her physician restricted her from working as a "checker" due to her "repetitive" use of the injured hand. Her employer then discharged her upon the exhaustion of her rights under the Family Medical Leave Act.
Continue reading "Woman's retaliation claim dismissed" »
Leoni Township in Jackson County fired one of its employees, Ben Brzezinski, after he expressed concerns about working in an unreinforced excavation and refused to enter a six foot deep trench. Brzezinski brought an administrative action, claiming an illegal retaliatory firing, and he was supported by MiOSHA. His supervisors claimed the firing was for subordination, and denied a retaliatory motive or that Brzezinski had expressed safety concerns. The court noted, however, that the supervisors' testimony was inconsistent.
Continue reading "Court reinstates employee who was fired after expressing safety concern" »
The media has done a good job of documenting the health risks associated with purchasing products from the third-world, where they are usually not manufactured to American standards. That risk has been particularly great in the case of drug manufacturing, since the FDA regularly inspects and investigates domestic manufacturers, but no one insures similar compliance in many foreign countries. The result has been a dramatic cost savings associated with manufacturing drugs in India or China [at least to manufacturers, if not to consumers or the government], and in the past few years a tsunami of unsafe or contaminated product recalls, including, for example Heparin.
Continue reading "The risks entailed in moving our entire drug manufacturing business abroad" »
Melamine is an industrial chemical which has been identified in several products, both domestic and foreign. It was used intentionally to falsely inflate the level of protein in watered-down Chinese dairy products, causing a number of deaths and poisoning nearly three hundred thousand children, many of whom developed severe kidney trouble. The Chinese government has sentenced at least two people to death in the tragedy and provided families with an average compensation of about $500.00. The FDA began investigating domestically-produced products and has identified a trace of Melamine or its by-product cyanuric acid, in a number of them, including NestleGood Start Supreme Infant Formula with Iron and Mead Johnson's Enfamil LIPIL with Iron.
Continue reading "Consumer groups criticize FDA melamine guidelines" »
The New York Times recently published a column addressing the gap between science, medicine and the law. It identified employees such as Ed Abney, who can identify a valid statistical, scientific basis for their medical problem, but who cannot meet tort "reform" standards that require proof of causation for a particular individual. This issue was less of a problem before product liability "reform" efforts lead to a series of decisions in some jurisdictions (including Michigan) holding that injury victims must establish a higher threshold of proof.
Continue reading "Workers with documented chemical exposure may still be denied benefits for disability" »
This month, the Court of Appeals had two occasions to address the so-called "attorney judgment rule" in legal malpractice claims. The latter rule arises when an attorney is sued for negligence and claims as a defense that he or she is not responsible for a bad outcome as the decisions he or she made were in accordance with sound professional judgment. It is a common defense in all professional malpractice cases that the allegedly erroneous action was actually an exercise of judgment in accordance with the standard of care of other reasonable professionals in the same field. For example, if a trial attorney makes a considered tactical decision not to call a particular expert because the witness will do more harm than good, and that judgment is not an identifiable error at the time, he or she cannot be sued for that decision if the case is ultimately lost.
Continue reading "The attorney judgment rule in legal malpractice claims: Docs sue lawyer, or "Dog bites man"" »
The recall of Salmonella products has continued to expand over the past several weeks, as the CDC has traced the national Salmonella outbreak upstream to a particular plant in Blakely, Georgia, owned by a particular manufacturer, Peanut Corporation of America, and then downstream to various products containing peanut paste which was produced at the subject plant. Originally it was thought that the Salmonella contamination was limited to institutional packages of peanut butter, but now more than 100 products that include peanut paste have been identified and recalled.
Continue reading "Salmonella recall of peanut products" »
Hastings Mutual had insured a warehouse owned by the Plaintiff, Overall Trading, Inc., but declined to pay for water damage suffered during the months of January and February of 2005. Hastings claimed the damage was caused by surface water run-off, a non-covered event, while the company presented proof from two engineers alleging that the damage was caused by a roof leak. Overall Trading filed suit against the company, and Hastings claimed the suit should be dismissed because Overall never filed a new Proof of Loss after Hastings rejected the claim initially. Hastings also sought dismissal based on Overall's failure to file a document distinguishing between the January and February losses.
Continue reading "Hastings Mutual loses in dispute over coverage" »
When the Club of Kalamazoo and two individual managers attempted to require health club employees to install insulation in the walls during renovations and did not provide proper safety equipment, four workers objected. When their objections were ignored, two of the workers reported the illegal demand to MiOSHA. In response, their employer-Defendants reduced their pay to cover the cost of third-party installation and ultimately fired all four employees. They filed suit, alleging a violation of the Michigan Whistleblowers Act.
Continue reading "Whistleblower defense is rejected by the Court of Appeals" »
Farm Bureau Insurance has aggressively exploited the Engler Majority's willingness to protect Michigan insurers from claims by injury and casualty victims. Another example of Farm Bureau's never-pay attitude was provided in Feldkamp v. Farm Bureau, decided by the Court of Appeals in January of 2009. Feldkamp, badly injured in a 2002 motor vehicle collision, had purchased underinsured motorist (UIM) coverage from her own insurer, Farm Bureau. Typically, UIM coverage increases the at-fault's coverage limits to the same limits that an insured purchased for her own liability.
Feldkamp was so severely injured that the at-fault's insurance carrier, GMAC, agreed to pay her its policy limits almost immediately, however, Farm Bureau refused to grant Feldkamp the written consent required under the policy to settle with the at-fault. Feldkamp's attorneys became impatient with Farm Bureau's conduct and sought a court order compelling Farm Bureau to grant consent, which the court ordered after a hearing. Feldkamp's attorneys then settled with the at-fault and gave her the Release that GMAC demanded.
Continue reading "Woman's Underinsured Motorist Claim dismissed as Farm Bureau exploits technicality" »
The Court of Appeals recently applied the Engler Majority's analysis of slip and fall claims to dismiss a claim brought by a lifelong resident of Michigan who fell and was "seriously" injured while leaving a friend's home. The friend had a white ceramic tile porch that was covered with a thin dusting of recent snow. Ball had entered safely, exercising great care, but when she attempted to leave she slipped and fell. As she was lying on the porch, she found a small area of ice that she had not noticed in the area where she had stepped.
Continue reading "Bette Ball can't sue: she used the wrong door or should have invited herself to spend the night" »
In case you were worried that wealthy shoppers were paying too much for their up-scale cosmetics, you will be relieved to know that a recent class action suit based on that claim has been settled. Stores like Neiman Marcus, Saks Fifth Avenue and Bloomingdale's will be erecting "give-away" tables to hand out one free "high-end, prestige" cosmetic to selected shoppers, in order to satisfy a claim that the stores conspired to fix prices. The give-away will depend on consumers confirming that they had previously purchased expensive cosmetics (on the honor system) and will last only as long as supplies last.
Continue reading "Seemingly frivolous cosmetic class action suit results in settlement" »
Staph germs, present on the skin of everyone, are becoming increasingly resistant to standard antibiotic regimens. The Washington Post reported on January 20, 2009, that these MRSA bacteria are being found in "alarming" numbers in deeper tissue infections in ears, sinuses and tonsil and throat. From 2001 to 2006, the percentage of MRSA infecdtions among 21,000 pediatric head and neck patients more than doubled from 12 percent to 28 percent.
Continue reading "Difficult-to-treat MRSA infections found in alarming numbers by ENTs and pediatricians." »
Employers Mutual insured two gas stations operated by the Tiel Oil Company in Reed City. The gas stations suffered an in-ground petroleum leak after water infiltrated underground pipes, froze, and fractured the pipes. The insurer was notified of the loss but declined to pay, offering serial excuses based upon its interpretation of various policy clauses.
Continue reading "Insurer who repeatedly demanded more information cannot argue ultimate suit was filed late" »
The Sixth Circuit Court of Appeals summarily dismissed a claim brought by Christine Ladd against the Grand Trunk Western Railroad, claiming that Ladd had not met her burden of proof. Ladd was a six-year employee of Grand Trunk who had been promoted twice by the company. She was fired after she accused a supervisory employee of calling her a "black bitch" and, after her complaint, of injuring her by moving a truck without warning her. Although their claims were admittedly contradictory and inconsistent, several co-workers to some extent collaborated the supervisor's claim that Ladd wasn't in the truck bed when he moved it, and on that basis, Ladd was fired for making a "false report".
Continue reading "Sex- and race-based harrassment and retaliation suit dismissed" »
Joseph Jaye was injured when the House Arrest Services employee tightened the Court-ordered tether on his ankle too tightly. Joe was required to wear the tether as part of his punishment for an alcohol-related driving offense. He claimed the tether caused a severe laceration on his ankle before it was removed. The Court of Appeals held that he could not sue the company because it had conditioned its contract on his signature releasing the company from liability for and "consequential...damages...arising out of...the transactions contemplated hereunder". The three judges held that this language was adequate to represent a "meeting of the minds" by the parties to the contract that House Arrest Services would not be responsible for the negligence of its employees.
Continue reading "Company fastening tether is allowed to demand release from its own negligence" »
The Court of Appeals recently held that a local McDonalds owed no responsibility to the mentally challenged victim-customer who was beaten by an employee. The victim was allegedly attacked verbally by the employee. He then reported the incident, including the employee's threat to "kick his ass", to the manager on duty. The manager left the employee at his work station after the employee claimed to have calmed down, however, moments later the employee attacked the customer, he had to be "pulled off" the victim and police had to be called.
Continue reading "McDonalds not responsible when employee beats disabled child" »
In Regan v. Suchowolec, the Court of Appeals was asked to consider a jury's verdict of no cause action, denying Ms. Regan any recovery for her motor-vehicle-accident-shoulder injury. She claimed that the trial court should have directed a verdict in her favor and not allowed the jury to decide the issue. The Court of Appeals rejected her request, holding that her claims, particularly her description of pain and interference with life activities, were questions of fact and credibility and properly decided by a jury.
Continue reading "Jury determines shoulder injury was not a serious impairment" »
The New York Times reported today that Eli Lilly is expected to agree to pay $1.4 billion dollars to settle civil and criminal charges that it illegally marketed the antipsychotic drug Zyprexa for unauthorized "off-label" use to patients who were vulnerable to its risky side effects. The drug was never approved for use with children or the elderly, however, authorities claim that the company had a decade-long scheme to persuade doctors to prescribe it to sedate "unruly" nursing home patients and "disruptive" children. Lilly sales people have claimed that the marketing effort emphasized that patients sedated with the drug would require fewer skilled nursing staff hours and would "reduce caregiver stress".
Continue reading "Lilly reported close to paying $1.4 billion fine for illegally marketing Zyprexa to sedate unruly kids and nursing home residents" »