TOV Injury and Safety Blog

CPSC recalls 2.1 million drop-side cribs

It was widely reported today that the Consumer Product Safety Commission had recalled nearly all the drop-side cribs manufactured by Stork Craftsince 1993.  The CPSC cited 110 incidents and four deaths caused by problems with the drop-sides.  It is becoming clear from this and previous recalls that drop-side cribs are just inherently dangerous, either because of wear and tear, inadequate plastic components, or mistakes in assembly.  Free repair kits are available at www.storkcraft.com. 

Scientists propose database on pharmaceuticals to protect the public

Scientists this week urged creation of a public database on pharmaceuticals that would identify product risks and dangers much earlier.  Their article was published in the Archives of Internal Medicine.   They pointed to Vioxx--which increased the risk of heart attack or stroke among users by 39 percent--as an example of how the federal database would same money and lives. The authors believe that a proper meta-analysis of Vioxx would have identified its risks two years earlier. The drug manufacturing industry rejects the suggestion, and Dr. Michael Steinman of the medical school at the University of California, San Francisco, pointed to "this kind of dogma in medicine that you shouldn't use any drug for the first seven years after it's released, because it takes that long to figure out its harms and benefits."

Doctors' groups block patient access to data on physician errors

A Tulsa daily newpaper reported today on its efforts to examine why a federal data base on physician errors is not available to patients.  The reporter, Gavin Off, noted that most State Medical Boards, like Oklahoma's, use the data base before granting physicians' licenses to practice, but the system continues to succumb to physician pressure to hide the doctors' identities from the public.  The data has been gathered on doctors' errors since 1989 and includes information on 23,768 preventable patient deaths, 8100 major permanent injuries and 3896 cases that resulted in quadriplegia, brain damage or lifelong care.  It includes, for example, in Oklahoma alone, nine cases of sexual misconduct and 28 lawsuits over procedures conducted on a mistaken body part (with $2.9 million dollars in settlements). 

The reporter spoke with one authority who pointed out that if the information was reliable enough to use in making licensing decisions, it was reasonable to provide it to patients.  As with credit files, doctors could be free to supplement the data, if they believed there was an error.  Nonetheless, the experts report that the data will remain unavailable to patients and consumers, even though it is available to hospitals granting staffing privileges, because the AMA has a lock on politicians who would have to vote to make it available to the public.

School Board can limit duration of public speech at meeting

Several families who wanted to complain about the football coach's treatment of their sons secured a 5 minute slot on the monthly agenda for their lawyer to speak.  The following month, they attempted to secure another 5 minute slot, however, the Board refused them, concluding that the request was "repetitive."  The sued the Board, claiming that their sons had been denied a constitutional or civil right to participate in football.  Their case was dismissed; at which point the sued the Board claiming they had been denied the 1st and 14th Amendment rights of free speech at board meetings.  The Sixth Circuit wasted no time in dismissing their claim, as it concluded that the limitation on "repetitive" presentations during the public meeting was content neutral.  The case is Lowery, et al. v. Jefferson County Bd. of Educ., and it represents a small victory for all of us who have sat through interminable public meetings where a small group has repeatedly scolded the majority over a perceived slight or difference of opinion.

Police officers have no liability for death resulting from high-speed chase

The Sixth Circuit ruled this month that two Redford Township police officers would not be liable for wrongful death as a result of their failure to discontinue a high speed chase in the dark.  Clayton Jones was killed when his car was struck by a fleeing motorist who had turned off his headlights in attempting to elude the officers.  The officers believed that the occupants of the Ford Taurus they were chasing might be suspects in a local armed robbery.  After turning off their headlights, the suspects ran several traffic lights at high speed before striking Jones' vehicle and killing him.  He was on his way to work.

Still wondering if its safe to eat ground beef?

This was another bad week for the American meat industry, in terms of public relations.  First, a New Hampshire resident died after consuming meat infected with E.coli bacteria.  The source was apparently the same meat that sickened Rhode Island school children in October.  This contamination event resulted in the recall of a half-million pounds of ground beef from the New York Fairbanks Farms.  It is thought that the primary risk associated with this beef is meat stored in freezers by consumers unaware of the recall.

Then South Shore Meats Co. of Brockton, Massachusetts initiated a recall after making 20 additional Rhode Island children and adults ill at a camp in Plymouth. Purchases of the meat in each case were made at large chain grocers.

The news became slightly less worrisome, but infinitely more disgusting, when the beef industry announced it would fight attempts to ban meat producers from feeding cows chicken feces.  The Consumers Union, McDonald's Corp., and others have asked the FDA to ban the practice of feeding this chicken waste to cattle. (We wonder why McDonald's doesn't just refuse to contract with suppliers who refuse to avoid the practice:  is that asking too much?)  The FDA estimates that farmers feed between one and two million pounds of chicken litter/feces to cattle, annually.

The practice isn't just disgusting, however.  It is also unsafe:  chicken "litter" includes tissue from other ruminants which had been fed to chickens--thus following the precise practice which is responsible for bovine spongiform encephalopathy, or "mad cow disease." The National Cattlemen's Beef Association, which will cry for help when beef consumption falls with the next report of "mad cow" or the next resulting foreign ban on American beef, objected to such a ban because the risk is "too remote".  The Consumers Union scientists interviewed noted that the practice is also objectionable because the litter contains "disease-causing bacteria, antibiotics and foreign objects such as dead rodents, rocks, nails and glass."

A food safety expert from Cal Davis said that while the practice sounds gross, it is as old as agriculture, with "anything that falls to the ground being fair game."  On the other hand, the practice was probably safer before the onset of industrial, chemical-laced food production practices when animals were not slaughtered by a stranger on an assembly line.

Radiology magazine reports that doctors surveyed would not report errors

According to HealthImaging.com, radiologists would be reluctant, and a majority would not inform patients of errors in interpreting previous x-rays.  A physician from the departments of medicine and bioethics at the University of Washington conducted a study that surveyed 364 radiology specialists from seven different geographic regions.  He found that if presented with a historical error in mammogram interpretation, only 15 percent answered that they would inform the patient "that an error had occurred" and that calcifications had increased in number between mammograms.

One million window blinds are recalled

IKEA, Bed Bath & Beyond and Hanover Direct recalled almost a million roller blinds and Roman shades because they pose a serious stangulation risk to small children.  The AP reported on October 27 that the recall includes a half million ISDANS, TUPPLUR and ENJE roller blinds made in Taiwan and France and sold by IKEA between 2005 and 2009, as well as nearly 400,000 blinds made in CHina by Dublin Energy Solution, and 90,000 Chinese-made faux suede shades sold by Domestications.  IKEA had recalled blinds in August of this year, as well.  The recalls followed one death and three entanglement reports.  Merely recalling defective products is not a safe solution, however.  Sadly, statistics show that fewer than twenty percent of recalled items will actually be returned, repaired, or taken out of the stream of commerce.

NFL data unwittingly confirms football-dementia risk

A memo prepared by an attorney for the NFL's 88 Plan, a joint NFL and Players' Union project to identify and provide support for veterans suffering from dementia, inadvertently confirmed the disproportionate risk  of dementia that veteran players face.  The memo originally concluded that NFL veterans' risk of dementia did not exceed the statistically anticipated risk, when NFL experience was compared with other studies of broader population groups.  After experts used the NFL data and compared it with these studies in a statistically appropriate manner, however, the data yielded the opposite conclusion:  NFL veterans are experiencing dementia at "four or five times" the rate we would predict in a normal population.

Most experts on head trauma agree that concussions and other head injuries increase the risk of dementia, and most medical experts express the greatest concern about multiple head injuries or head injuries occurring before a prior concussion has fully healed.  The NFL, however, has been loath to accept the implications of this data, despite paying about 6 million dollars to 106 veterans in the past few years.

The program has identified 68 men, ages 60 - 89 who are receiving aid, and 35 others who received aid before they died.  It has also identified a number of other qualified veterans who have failed or refused to apply for aid.  When the age-at-onset of these veterans is taken into account and they are properly compared with non-football dementia research, it is apparent that NFL veterans are far more likely than others of similar age to suffer from severe dementia.  The author of the original NFL memo now admits that his contrary conclusion was flawed.

More evidence of the danger of head injuries in football

The death and autopsy of 42-year old Western Illinois football player Mike Borich added fuel to the evidence that repetitive blows to the head playing football can cause chronic traumatic encephalopathy (CTE), a condition similar to that suffered by many boxers.  The pathology of Borich's cerebral cortex demonstrated widespread damage to the former Chicago Bears and  Brigham Young University assistant football coach.  This adds to the evidence found on autopsy of eight NFL players who died between the ages of 36 and 52:  most exhibited extreme emotional problems and all exhibited irregular protein deposits and neurofibrillary tangles in the "thinking" or "executive function" and judgment locations of the brain.  It is thought that the physical condition leads to depression and substance abuse in many subjects.  While there may be a genetic predisposition toward the development of this condition, neurologists from the Boston University School of Medicine and the Rockefeller Neuroscience Institute took pains to emphasize that the condition can only be caused by physical trauma.

American Cancer Society elucidates issues involved in breast and prostate cancer screening

The ACS has been attempting to respond to recent research documenting the fact that "American medicine has overpromised when it comes to screening" without discouraging patients from seeking appropriate medical evaluations.  Unlike colon and cervical cancer screening, which have lead to the identification of deadly cancers and a substantial improvement in the related death rate, prostate and breast cancer screening have not significantly improved the survival rates for these cancers.  Instead, it appears that prostate cancer screening in particular, and to a lesser extent breast cancer screening, have resulted in the early identification and treatment of non-fatal tumors, while failing to catch fatal tumors early enough to be effective.   The ACS noted that while there has been a 40 percent increasein the diagnosis of breast cancer, this has led to only a ten percent decline in the diagnosis of Stage II and IV breast cancer.

The ACS notes that timely mammography is still an important health choice, although its effectiveness has been exaggerated.  Researchers suggest that the problem lies with our inability to distinguish between relatively benign cancers and cancers that will be fatal if left untreated.  Until we make that scientific leap, many patients will undergo expensive, invasive and dangerous treatments that ultimately prove to be unnecessary.  Recent research has demonstrated that in many cases the complications arising from treatment may outweigh the benefits gained.  A long-term study from New England documented the fact that survival rates among "over-treated" patients were lower than survival rates among the "under-treated" population.  This is not simply a question of "more is better."  We must determine how to judiciously apply resources where they will best serve the patient.

Consumer Product Safety Commission eyes standards for 4-wheel ORVs

The CPSC recently rejected voluntary safety standards suggested by manufacturers of 4-wheel ORVs, finding them inadequate.  Instead, it will take testimony from the industry and the public and compose independent standards.  It noted that the side-by-side off-road vehicles, capable of speeds in excess of 35 miles per hour, are involved in a disproportionate number of deaths and injuries.  In March, Yamaha recalled 100,000 of its Rhino models for repairs, after two models were linked with 46 deaths in six years.  The vehicles pose a substantial roll-over risk and have been associated with 116 deaths and many serious injuries since 2003.  Many of the victims have been children.  Industry spokesman suggest that the deaths are merely the result of owners' unsafe use.

Pfizer hit with 1.3 billion dollar penalty for illegal practices: no big deal if your annual revenue is 48 billion

The U.S. government began investigating Pfizer's illegal activities in promoting Bextra--a pain killer since removed from the market--in a criminal action arising out of the government's payment of medical expenses for its beneficiaries.  Ultimately, the U.S. Attorney concluded that Pfizer was illegally promoting Bextra and other drugs to doctors through kickbacks and other illegal practices that included marketing the drugs for uses not approved by the FDA.  The claim was recently resolved by agreement of Pfizer to pay $1.3 BILLION dollars in civil and criminal fines.  Given that Pfizer reported revenues of $48.3 billion dollars in 2008, this kind of punishment is unlikely to phase the company's executives or deter future illegal activity of this nature.   Bextra was removed from the market because it was implicated in an unreasonble number of heart attacks and strokes among pain-relief users.

ADA standards and regulations set to change

On September 23, the Equal Employment Opportunity Commission published its proposed new regulations for administering the Americans with Disabilities Act, which was amended effective January 1st.  According to experts, the new regulations will "significantly lower the standard for an employee to establish that he or she has a covered disability."  The amendment is expected to move the interaction under the ADA from a fight over whether an employee is qualified for consideration under the act to a fight over the employer's duty to make reasonble accommodations.  From the amendment forward, the employee's proofs will primarily be directed to whether the "diability" limits an employee's ability to work or is perceived to perform his or her job.  The new regulations will also take into account "mitigating measures" such as medication, eyeglasses, hearing aids and other measures which formerly precluded an employee from qualifying as "disabled" and eliminated any duty of accommodation.

Fewer residents, less traffic, more fatalities: rural roads are least safe

Because of their higher speeds, the rural roads that serve only 23 percent of the U.S. population are the site of 56 percent of motor vehicle deaths.  In addition to higher speeds, other causes for this phenomenon are increased average emergency response time (80 minutes in Montana, for example, compared with 15 minutes in Massachusetts), higher number of miles driven, a higher percentage of poorly-engineered roads, and the increased likelihood of illegal driver behavior resulting from absent law enforcement (e.g., drunken driving or failure to use seatbelts).  The findings are contained in a new report by the National Highway Traffic Safety Administration.

Allstate first on list of "Ten Worst Insurance Companies"

The American Association of Justice recently published a Report detailing the conduct of the "Ten Worst Insurance Companies".  Allstate topped the list (it consistently tops everyone's list of most abusive insurers), of course.  Here is the full list:

    1.  Allstate; 2. Unum; 3. AIG; 4. State Farm; 5. Conseco; 6. WellPoint; 7. Farmers; 8. United Health; 9. Torchmark; and 10. Liberty Mutual.

The Chief Executive Officers of these ten companies averaged an annual salary of nearlly $9 million dollars (that's $9 million EACH) for 2007. 

To view the entire report, go to http://www.justice.org/docs/TenWorstInsuranceCompanies.pdf.

Study finds malpractice insurers "gouge" doctors and reap stunning profits

The American Association of Justice (essentially America's trial lawyers) funded a study of insurance profits by malpractice insurers.  It reported this week that the insurers achieved "astronomical" profits year after year--higher than 99 percent of Fortune 500 companies.  The Washington Independent quoted the Report as concluding that the malpractice insurance companies studied reported profits that were 35 times higher than the Fortune 500 average and ranged from a low of 5.9 percent to a high of 74.8 percent.  The average reported profit for these insurers during the period was 31.2 percent.  Nowhere else in our economy can a corporation or individual anticipate achieving profits that even approach this level--and yet the public conversation about malpractice "reforms" has focused solely on eliminating the rights of badly-injured individuals, rather than redressing premium-gouging of doctors by insurance companies.

Health care symposium concludes malpractice is very minor influence on health care costs

The O'Neill Institute for National and Global Health Law at Georgetown University concluded its symposium this week with the finding that curbing medical malpractice litigation isn't the "silver bullet" needed to slay rising health care costs.  The panel of academics, quoted by McClatchy's Washington Bureau, included medical, law and economics professionals.  It noted that partisan interests make "bloated" anecdotal claims arguing for malpractice reforms, but that in fact they result in only meager cost savings.  It further noted that even in considering so-called "defensive medicine" costs, malpractice claims account for only "2 to 3 percent---at most" of the cost of health care. 

The Institute's findings were very similar to the conclusions reached by surgeon Atul Gawande when he analyzed Medicare costs in Texas:  the problem lies in "fee for service" medicine and an attitude among some medical professionals of "leave no dollar on the table." Texas malpractice reforms had minimal impact on the escalation of costs when compared with the problems Gawande identified.

Sixth Circuit allows jail abuse case to go to jury

William Harris sued the City of Circleville and several individual Ohio State Troopers, after he suffered a spinal injury during incarceration.  Harris was initially stopped for speeding, and ultimately arrested when officers claimed to have found an outstanding misdemeanor warrant. He was handcuffed and the jail videotape was running when officers "took him down" for failing to respond to orders to kneel.

Investigation documents the risk of eating ground beef in the U.S.

22-year old Stephanie Smith is a paraplegiac.  She suffered severe kidney and neurological injury after eating a frozen Cargill hamburger her family purchased from Sam's Club.  Tracing the E. coli contamination of the burger allows a disturbing view into the game of Russian Roulette that is involved in eating an American burger.  The frozen patty Smith ate was labeled "American Chef's Selection Angus Beef Patties" but Cargill records show that it was derived from slaughtershouses in Nebraska, Texas and Uruguay, along with trimmings from a South Dakota company that processes trimmings and treats them with ammonia.  Cargill tested none of these components for E.coli bacteria and does not require that its suppliers test, either.

Target penalized for selling toys with lead paint surfaces

The Consumer Product Safety Commission announced this week that Target Corp. had agreed to pay a $600,000.00 civil penalty for importing and selling a variety of toys with surface lead paint.   The CPSC maintained that Target knowingly imported and sold the illegal toys from China in 2006 and 2007.  They include Kool Toyz play sets, Anima Bamboo Collection games, Happy Giddy Gardening Tools, and Sunny Patch chairs. The CPSC says the company did not take any of the appropriate steps to assure that the toys complied with restrictions on lead levels.  Sadly, if Michigan kids were injured by these unsafe toys, they would have an extremely difficult time recovering from Target, since Michigan legislators eliminated retailer liability for defectively manufactured products several years ago.

University of Michigan study appears to confirm dementia risk among pro football players

The National Football League commisioned a study by the University of Michigan, intended to analyze whether head injuries and concussions occurring in football increase the likelihood of dementia.  Prior studies have suggested such a connection, and have also demonstrated an increased risk of depression and other head injury-related symptoms in veterans, long after the conclusion of their playing careers.  Apologists for the league, including Dr. Ira Casson, co-chairman of the league's "concussions committee" have regularly denounced the methodology of previous studies and called for further research.  Well, this week the League's first commissioned study confirmed that League veterans suffer a vastly increased risk of long-term brain injury complications.

Mercury in fish caught in the U.S.

The USA Today reported in August of 2009 that a government test of fish pulled from 300 different streams in the USA found mercury in every one.   One hundred percent. The research was conducted by the U.S. Geological Survey.  27 percent of the fish had amounts of mercury exceeding EPA recommendations for safe eating.  Mercury is a particularly dangerous neurotoxin, usually finding its way to water from airborne particulates and the usual source is coal-fired power plants.  Other common sources are concrete plants and trash burning. 

Chinese drywall manufacturers snub U.S. Courts investigating defects

Virtually every day, another article appears in the U.S. media discussing the thousands of homes where defective Chinese drywall has caused substantial problems.  The drywall breaks down, emitting chemicals and odors, has been shown to ruin copper piping and to cause health problems. While a number of lawsuits have been filed, the Chinese manufacturers have simply refused to appear in court.  They recognize that U.S. judgments against them will not be enforced in China, allowing them to ignore the consequences of their negligence with impunity.  Fortunately for consumers in most of the affected states, the retailers and intermediaries involved in the purchase and installation of the defective drywall will be held accountable:  unfortunately, many of those intermediaries are completely without fault or will not survive the economic impact of these claims.

For consumers in some states, however, the problem is even more substantial.  If a state has rejected joint and several liability, thereby eliminating the duty of an at-fault with a "deep pocket" to make an innocent victim whole, innocent victims will achieve little or no compensation for a defect that has virtually destroyed new homes.  In Michigan, the problem goes even deeper.  Through tort "reform" adopted during the Engler era, even the retailers who sold the drywall would not be required to stand behind it:  unless they were independently negligent, retailers in Michigan have no liability for selling a defective product.  Thus, a Michigan resident would be required to prove that the retailer knew of the drywall defect before purchase, in order to hold the seller accountable.

The major problem with this "retailer immunity" is that is takes away the retailer's incentive to either confirm the quality of its suppliers, or to demand insurance indemnity coverage in the event of a defect.  Ultimately, the consumer is left at the mercy of unscrupulous, ignorant or simply negligent manufactuers.  In a "flat world," we have learned that this  policy exposes consumers to injury from defective toys, clothing, medicines, and all manner of products that are shipped to this country from unaccountable sources who are only a step above criminal enterprises.

A note discussing this issue was recently published by Ashley Thompson in the University of Michigan Journal of Law Reform.

Significant recall of Children's Tylenol products

The AP on September 25, 2009, reported that Johnson & Johnson had recalled a number of children's Tylenol products, including Tylenol Suspension 4 oz. Grape, Infant's Tylenol Grape Suspension Drops, 1/4 oz. and Children's Tylenol Plus Cold/Allergy 4 oz. Bubble Gum.  57 lots of these medications were recalled over concern regarding potential bacterial contamination.  Consumers with questions were directed to McNeil's Consumer Call Center at 1-800-962-5357.

FDA was pressured into approving unsafe knee implant

The New York Times today published an article detailing how the FDA succumbed to political pressure to approve a surgical implant called a "scaffold" for repairing torn medial [knee] menisici even though it deemed the device to be flawed.  The meniscus in the knee is a sort-of-pie-shaped section of cartilage that cushions the joint and provides a slippery joint surface between the tibial head and the end of the femur.  This device is intended to supplant or supplement the function of the meniscus in a damaged or worn-out knee.

Federal Aviation Administration issues warnings about safety hazards at O'Hare.

On September 24, 2009, a Chicago Tribune reporter wrote that federal inspectors found numerous safety violations at the busy Chicago airport, including debris on runways and excessive foliage that functioned to attract wildfowl.  It is believed by experts that several recent commercial crashes have resulted from jet engine damage caused by "ingestion" of flying ducks and geese, and the only crash of the Concorde was later attributed to debris on a runway.  The FAA also cited a "pattern of false statements" in the Chicago authority's self-inspection program.

Intermittent tourist whistle is not a "private nuisance"

In a relatively unusual case, the Court of Appeals concluded that sounding a navigating whistle on the tourist riverboat operated in Frankenmuth does not constitute a private nuisance.  The resident who filed suit to limit or eliminate the whistle sounding was denied relief, even though the whistle is sounded almost ten time per hour during the 12 hours of operation and seven cruises daily.  In essence, the court held that the sound wasn't so obnoxious as to be unreasonable, given the Coast Guard regulations that applied and the location in a tourist magnet community.

Kohl's fined for selling childrens' sweatshirts with drawstrings at neck

It is well established that neck drawstrings are a safety hazard in childrens' clothing.  Nevertheless, Kohl's Department Stores were selling imported sweatshirts with a drawstring at the neck, even though it had been fined $35,000.00 for the same violation in 2008.  This year, the Consumer Product Safety Commission fined it $425,000.00 for the violation which resulted in a recall in March of 2009.  Despite the earlier violation and fine, Kohl's maintains that it did not knowingly violate the law.

Allstate, bottom-rung of insurers, settles discrimination suit by employees

The Associated Press reported on September 11 that Allstate Insurance Company will pay $4.5 million dollars to settle an age discrimination suit brought by 90 employees.  The Equal Employment Opportunity Commission had assisted the employees, who apparently established that Allstate's effort to treat its sales agents as "independent contractors," discriminated against agents over 40.  Apparently ninety percent of the agents who were not "re-hired" or re-assigned (or whatever you do when you fire people and then hire some back as "independent contractors") were over 40.  Allstate is well known among lawyers and judges for cutting corners and abusing civil procedure whenever an extra few pennies of profit might be at stake.

Pfizer admits fraud in marketing drugs and is fined $2.3 billion dollars

If you are wondering why pharmaceuticals are adding so much to the cost of health care, take a look at Pfizer.  For the fourth time since 2002, the company or one of its subsidiaries has agreed to settle criminal or civil charges arising out of its improper marketing of a drug.  Previously it was Lipitor, Neurontin and Genotropin.  This time it is Bextra and three other medications which Pfizer was promoting to doctors for uses not authorized by the Food and Drug Administration.  Bextra has since been pulled off the market by Pfizer after serious safety concerns were raised.

Michigan Supreme Court to reconsider Kreiner no fault "serious impairment" standard?

The Associated Press reported on August 21 that the Michigan Supreme Court has agreed to reconsider a case involving the "life-altering" serious impairment interpretation of the no fault law adopted by Justice Clifford Taylor and the so-called Engler Gang of Four.  The latter justices, hand-selected by then-Governor Engler with an eye toward cozying up to the Chamber of Commerce and the insurance industry, adopted a number of lawsuit "reforms," including a re-analysis of the no fault threshold that severely limited when injured car accident victims could sue. 

Simplicity bassinet recall is emphasized after two more deaths

The Consumer Product Safety Commission reemphasized its August 2008 recall of some 900,000 Simplicity bassinets after four more entrapment incidents resulted in two fatalities.  Sadly, research shows that recalls result in less than twenty percent of recalled products being removed from the stream of commerce, and only a small percentage of products being repaired or improved.

This recall involves Simplicity 3-in-1 and 4-in-1 convertible bassinets sold under the Simplicty name or by Graco between 2001 and 2008.  The deaths and injuries have typically resulted from entrapment between metal bars or in pockets of fabric where velcro-attached fabric is not attached to the bars or is attached improperly.

Studies document that cementing spinal injuries is no more valuable than placebo

The New York Times reported on August 6 that the New England Journal of Medicine's August issue contained surprising information on vertebroplasty--that is, the expensive, complicated surgery involving the injection of acrylic cement into spinal column bones to ease back pain.  The surgery costs more than $3500, including MRI expenses, is dangerous, and was performed 73,000 times in the U.S. last year.  Dr. David F. Kallmes, a professor of radiology at the Mayo Clinic reported that randomized studes performed by his group and another group of phyisicans in Australia confirmed that the procedure was no more effective in treating back pain than a sham procedure that injected no cement into patients' spines.

Lexington Herald-Leader and other sources confirm that tort "reform" doesn't cut health costs and fails to address "the leading cause of accidental death in America"

In an editorial written on August 16, 2009, the Herald-Leader, obviously a disinterested observer, pointed out that tort "reform" is a red herrring in the current conversation over health care costs.  That is, malpractice recoveries and "defensive medicine" are a literal drop-in-the-bucket compared to the overwhelming cost of medical care.  The paper pointed to Texas and other states where malpractice caps and reforms in 2003 did not significantly slow the exorbitant rise in health care spending. 

Gastric bypass surgery is now much safer

The Washington Post recently detailed new findings showing that the safety of gastric bypass surgery has been improved immensely.  A decade ago the morbidity and mortality figures associated with gastric bypass surgery made it questionable whether the surgery was worthwhile--despite the known dangers of morbid obesity.  New safety results at major hospitals show, however, that fewer than five percent of patients now suffer major complications.  The results are published in the New England Journal of Medicine.

Generally, the surgery is recommended for persons with a body mass index over 40, or over 35 if obesity is combined with another significant health problems such as diabetes or high blood pressure.  Last year the surgery was performed nearly a quarter million times in the U.S.  Death, serious complications or the need for additional surgery ocurred in one percent of patients whose stomachs were banded, almost five percent of patients having laparoscopic bypass and almost eight percent of those given a bypass by traditional surgical means.

Clearly, where possible, gastric bypass patients should select a surgeon who performs banding or laparscopic bypass at an institution that performs hundreds of the procedures each year.

Sixth Circuit requests Supreme Court's guidance on issue of "property interest" in loved one's brain

Karen Waeschle sued the Medical Examiner of Oakland County, Ljubisa Dragovic, after he incinerated Waeschle's mother's brain following an autopsy.  The 88 year old mother had fallen in a nursing home prior to her death and her body was sent to Dragovic for a post mortem.  The Sixth Circuit Court of Appeals held that the medical examiner was personally entitled to "qualified immunity" for incinerating the brain, since he did not deny Waeschle a well-established due process right, but also directed the lower court to seek input from the Michigan Supreme Court with regard to whether the County might be institutionally liable for denial of a protected Michigan right.

The ugly under-belly of lawsuit financing

Several companies now offer lawsuit financing to injury victims while their cases are pending.  Sometimes such a loan is necessary to help a family keep its "head above water," however, these loans are by no means an altruistic gesture.  In Lawsuit Financing, Inc., and Rainmaker USA, LLC v. Elias Muawad, the Court of Appeals allowed a glimpse into the problems these loans can create.  The Plaintiff loaned Lawsuit Financing loaned one of Muawad's clients $10,000.00 under a "Purchase Agreement" pursuant to which the client was obligated to pay the lender $50,000.00 when the case settled.

Michigan's high court addresses class action status of claims versus Dow Chemical

In the next chapter of the on-going battle between residents of the Tittabawassee River basin and Dow Chemical, the Michigan Supreme Court concluded on the last day of July that the plaintiffs did not meet the qualifications for a class action.  Residents of the river basin have been seeking redress from Dow over dioxin poisoning for years.  In previous rulings, Michigan courts have concluded that they cannot recover for medical monitoring, despite the risks and dangers associated with dioxin pollution. 

Tanning beds cause cancer

The highly respected English medical journal Lancet Oncology published an analysis this week, documenting the cancer risk of tanning beds.  The authors evaluated 20 existing studies and concluded that the risk of skin cancer increases by 75 percent among young people who visit tanning beds before the age of 30.    The scientists concluded that all types of ultraviolet radiation contribute to cellular mutations and render radiation carcinogenic.  The Associated Press noted that as tanning bed use has increased in the U.K., melanoma, the deadliest form of skin cancer, is now the leading cancer diagnosed among women in their 20s.  Previous studies have suggested that younger people who regularly use tanning beds increase their risk of melanoma to eight times the average among the population in general.

Former chairman of NTSB calls for national medical safety board

Jim Hall, former chairman of the National Transportation Safety Board recently filed an op-ed calling for a similar organization to analyze medical errors and recommend solutions.  He noted that the NTSB costs taxpayers about 25 cents each, per year, and for that cost it has saved millions of lives as a result of its activities in commercial airline and highway safety alone.  He noted that 10 years ago, the Instititute of Medicine placed the cost of avoidable medical error at $17 to $29 billion per year--and likely much higher today.  With the current focus on the cost of health care (which now approaches approximately 1/3 of the average annual family income in the United States) an organization similar to the NTSB to study and eliminate routine and avoidable medical errors is long overdue.

Further comment on Moldowan case: impact on Brady rights

One of the primary areas of disagreement amont the Sixth Circuit judges who decided the Moldowan case related to the justification for allowing some of Moldowan's claims to proceed against the City of Warren defendants who handled his prosecution.  Moldowan served 12 years in prison for his ex-wife's kidnapping and rape before being exonerated.  During his incarceration, key evidence admitted against him was recanted or discredited and other, exonerating evidence known to police but not disclosed to Moldowan's attorneys, was identified.  In defiance of a Court order, evidence from his original trial was destroyed by a City employee.

Bush Administration withheld data on danger of cell phone use while driving

This month, the Center for Auto Safety and Public Citizen published data they secured through the Freedom of Information Act, documenting the significant safety risk associated with cell phone use while driving.  The federal Transportation Department had gathered this information in 2005 and 2006, but did not disseminate it during the Bush Administration in order to maintain favor with the cell phone industry. Until 2009, the latter industry argued that cellphone use while driving was not a danger and should not be regulated.

Nurses indicted for reporting doctor's malpractice to licensing board

Two nurses who lodged a complaint with the Texas Medical Board were indicted for "misuse of information" this week, because they included in their (confidential) complaint the medical records of several patients whose names had been redacted from the records.  While the ten patients' records did include patient numbers, no patients were identified and the licensing board's activities are entirely confidential, meaning there was no risk that the patients' confidential records would be disclosed in any broader venue.  Over the objections of the licensing authority and the Texas Nursing Association, local authorities and the hospital have chosen to attempt a prosecution charging the nurses with a felony, simply for acting to advocate for patient safety. 

More evidence that links cancers to hormone therapy

A Danish study involving 900,000 women aged 50 to 79 found that hormone-replacement therapy during menopause results in an increased risk of deadly ovarian cancer.  Similar links had previously been identified between hormone therapy and both breast cancer and ovarian cancer, as well as strokes and other problems, resulting in a dramatic diminution in the prescription of estrogen to minimize  symptoms of menopause.  Prescriptions of Wyeth's Prempro have fallen by about 50 percent since the first study was published in 2001.    The cancer risk is thought to last for about two years after estrogen therapy ends.  Ovarian cancer kills about 15,000 American women each year.  Over the eight years of the Danish study, current hormone use conferred a 38 percent higher risk of contracting the disease.

Denver hospital closed to new patients after inadequate staffing and training cause death

The Colorado Orthopaedic and Surgical Hospital was closed to elective surgeries after a 25-year old died following surgery and a drug administration error.  The state inspectors found that the hospital--which relied upon a neighboring hospital to provide emergency services and which was forced to call EMTs to respond to Hilary Carpenter's complications--was unprepared for emergencies due to inadequate training and staffing.  The wrong drug had been given to the young woman, in the wrong dose and via the wrong means of administration, causing her to suffer cardiac and respiratory distress.  The responders were unfamiliar with the crash cart and its contents and could not revive her in what became a scene of "chaos."  Responders from the nearby hospital could not locate the proper room for twenty minutes and EMTs from an ambulance service had to be called!  Ultimately Carpenter's family was forced to remove her life support.

Is failure to report child abuse governed by medical malpractice laws?

In Lee v. Detroit Medical Center and Children's Hospital, a panel of the Court of Appeals was presented with the thorny question of whether an abused child's representative must comply with medical malpractice rules in order to hold a medical professional responsible for the breach of the professional's statutory duty to report suspected child abuse.  Two judges concluded that since the statute creates a duty in both professionals and non-professionals, it does not create a "professional" duty and the malpractice rules are irrelevant to the statutory claim.  The third judge would have defined the duty based on the professional occupation of the person alleged to have committed the statutory breach.  The case is likely to end up before the Michigan Supreme Court before we have a final answer.

State of Michigan settles prisoners' rape claims

According to the Detroit Free Press and the Associated Press, on July 15, the State agreed to pay $100 million dollars to settle a class action lawsuit brought by women prisoners incarcerated in Michigan prisons.  The action included more than 500 female inmates who claimed sexual assaults, abuse and harassment by male corrections department staff.   Two jury trials had resulted in verdicts for 20 inmates that had already exceeded 60 million dollars in damages and interest, and there were dozens of cases yet to be tried.  The first verdict for $15.5 million dollars for the first ten inmates had been upheld on appeal in January.  The settlement will be paid in annual installments through the year 2014.    The lawsuit was filed in 1996 and documented an atmosphere of inappropriate treatment of women by male custodians.

Minnesota Attorney General sues arbitration company that works with credit card industry

It was reported yesterday that the Attorney General of Minnesota had sued the Naitonal Arbitration Forum (NAF), the largest U.S. arbitration company for consumer credit disputes.  Most credit card agreements contain fine print that waives a customer's rights to go to court over disputes and requires arbitration--on the company's terms--as an alternative.  Many of these companies then contract with the NAF, or a company like it, to conduct the resulting arbitrations and most experts agree that consumers do not receive a "fair shake" in most of the resulting hearings.  

More on crib safety

What is it with the crib industry that it cannot build a safe product?  Numerous blog entries on this site have addressed the multiple crib recalls over the past three years.  The Atlanta Journal-Constitution published a column in the July 13 edition summarizing the problem.