Doc who operated on wrong lung suspended
By Bob Groves, Staff Writer
The Record (Online Edition)
6/25/08
A Kinnelon physician removed parts of the wrong lung during surgery and then tried to conceal the error by altering his own records, officials said today in announcing his license suspension.
Dr. Santusht Perera should have operated on a tumor on a 60-year-old patient’s left lung but instead erroneously removed portions of his right lung, state Attorney General Anne Milgram said. The surgery occurred at Meadowlands Hospital Medical Center in Secaucus in September 2000.
The patient, Vietnam War veteran Richard Flagg of Jersey City, died a “horrific” death three years later when the tumor that was supposed to be removed ruptured “and he drowned in his own blood,” his attorney said.
The state Board of Medical Examiners suspended Perera’s license for two years, with a minimum of six months of active suspension, and fined him more than $80,000 for “gross negligence.” The action came after an appeals court denied Perera’s application to stay the order of suspension.
Perera, who had offices in Teaneck and Jersey City at the time of the complaint, has been practicing at Hoboken University Medical Center.
License suspension is “appropriate given the facts in this matter,” Migram said in a statement. Perera and his attorney could not be reached for comment Wednesday.
But Flagg’s lawyer, Charles N. Rock of Newburgh, N.Y., criticized the license suspension and fines as “only a slap on the wrist.”
“It is so woefully insufficient, it shocks me,” he said in an interview. “If this board is to protect consumers of medical services, then they failed in their job.”
Flagg was an Air Force “Vietnam hero” who was dropped behind enemy lines to repair shot-down American aircraft for pilots to fly back, or to recover valuable electronics and then blow them up, Rock said.
“He was a real salt-of-the-earth type guy” who died penniless after his health benefits ran out, Rock said. Flagg, who was a Merchant Marine barge captain, died a month before his malpractice suit was scheduled to go to trial and the case was settled out of court for an undisclosed amount, the lawyer said.
In all, the medical board charged Perera with gross negligence, professional misconduct, dishonesty, fraud, deception and lack of good moral character.
Perera relied on a five-month-old CT scan instead of ordering a new CT scan before performing the surgery, according to the complaint filed against him by the medical board. Flagg, who had numerous heart and lung problems, was originally examined by another physician in April 2000 after he began coughing up blood.
Perera’s notes show that he operated on Flagg’s right lung for a tumor that was never diagnosed but neglected a tumor on the left lung, which had been diagnosed by several tests, including chest x-rays and a CT scan, the complaint said.
No tumor was found in the tissue that Perera removed and the surgery left Flagg — who already suffered from emphysema and a partially collapsed left lung — with diminished lung capacity, the complaint said. And that — coupled with the risk of bleeding from anticoagulants he took for other ailments — made him unable to undergo the surgery he needed on his left lung.
The board also found that Perera “engaged in deceit to conceal his error when he told the patient that the wrongfully removed lung tissue contained a life-threatening tumor,” which he knew to be untrue. Perera also altered his office records to show he intended to operate on the right lung instead of the left lung, the board said.
“As horrific as the removal of the wrong lung is, the attempted deceit is disturbing in and of itself,” said David Szuchman, director of the state Consumer Affairs Division, which oversees the board.
The board fined Perera $30,000 in civil penalties and $51,273.10 for reimbursement costs.
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Injured Policeman Prevented from receiving Underinsured Motorist Benefits
By Adam Levin, Esq.
Liever, Hyman & Potter
6/25/08
Heller v. Pennsylvania League of Cities and Municipalities , No. 1853 C.D. 2007
The Pennsylvania Commonwealth Court reversed a trial court’s ruling that police officer Heller who was injured in a car accident while on duty could receive both workers’ compensation benefits as well as underinsured motorist (UIM) benefits. UIM benefits are an additional source of recovery for persons injured in auto accidents when the negligent driver who caused the accident doesn’t have enough liability insurance to pay for all losses and damages.
Officer Heller recovered the maximum coverage from the auto insurance company for the careless driver. The police department’s workers’ compensation insurance paid his medical expenses and two-thirds of his pay but got paid back from the officer’s settlement with the careless driver. Heller then sought UIM benefits from his employer’s auto insurance policy and was denied based upon a provision in its policy that excluded coverage to anyone eligible for work comp benefits. Officer Heller had to sue that Company and a trial court judge in Venango County , Pennsylvania , found in his favor on the basis that the UIM coverage exclusion violated public policy.
In reaching its decision, the Commonwealth Court not only found that there was no violation of public policy but also found that no specific provision of any other Pennsylvania law prohibited an insurance company from excluding UIM benefits where an employee is able to obtain work comp benefits ( even though he has to pay back those benefits !)
A strong dissenting opinion was filed by Judge Friedman, one of the three Judges that decided this case. Judge Friedman would have affirmed the decision of the trial judge in favor of officer Heller. On June 17, 2008 , the attorney for Officer Heller filed a Petition with the Commonwealth Court requesting reargument before the entire Commonwealth Court .
Because of this ruling it would be advisable for everyone to make sure that they have enough underinsured motorist coverage on their own cars and that such UIM coverage would protect them when they are operating an employer’s car .
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Study: Cycle head injuries up sharply since Pa. changed law
Kari Andren
Philadelphia Inquirer
6/13/08
It was released exactly two years after Pittsburgh Steelers quarterback Ben Roethlisberger broke his jaw in a motorcycle accident while not wearing a helmet.
And yesterday, it reignited the debate over whether Pennsylvania should reconsider its helmet laws.
"Helmets save lives. You can't change that," Chuck Moran, spokesman for the Pennsylvania Medical Society, said of the study.
Twenty states - including New Jersey, New York, Maryland and West Virginia - have laws requiring all riders to wear helmets.
But in Pennsylvania, only motorcyclists under 21 and riders with fewer than two years' experience who have not taken a safety course are required to wear helmets.
The university's study, which will appear in the August issue of the American Journal of Public Health, looked at statistics from the Pennsylvania Departments of Health and Transportation for 2001-2002 and 2004-2005, the years before and after the helmet law was repealed.
The statistics take into account increases in motorcycle registration.
In the two years after the repeal, researchers found helmet use in motorcycle crashes dropped 24 percent, while hospital charges for motorcycle-related head injuries increased 132 percent.
The average cost to treat a head injury in Pennsylvania is $88,000, according to Clare Collins, a spokeswoman for the University of Pittsburgh's School of Public Health.
Kristen Mertz, the study's lead author, said researchers looked at both head injuries and other types of injuries.
"The relatively large increase in head-injury deaths and hospitalizations after the repeal suggests that the law was protecting riders," she said.
Still, motorcycle activists argue they do not need the government to tell them how to ride.
"The government has a responsibility to individuals, and I think they are overstepping their bounds" when they want to start getting involved in helmet laws, said Charles Umbenhauer, lobbyist for Pennsylvania ABATE, a motorcyclist organization that opposes helmet laws.
In a statement issued yesterday, ABATE called the helmet debate an "endless obsession to market one single item of riding gear as the 'solution' to motorcycle deaths and injuries."
Gov. Rendell, who supported the helmet-law repeal in 2003, yesterday continued to defend the state's limited helmet law.
"Even though the governor believes whether or not to wear a helmet should be a matter of personal choice," said spokesman Chuck Ardo, "he also believes that wearing a helmet is the better choice."
Rep. Dan Frankel, (D., Allegheny), introduced a bill last year that would reinstate the universal helmet law, but it sits stalled in the House Transportation Committee.
"When we're at a critical time in Pennsylvania, looking at reducing health-care costs - a priority for Gov. Rendell - we need to take a look at something that would instantaneously reduce the cost of health care," Frankel said.
Ardo said the governor has no plan to pursue a change in the law.
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Side effects lead to ER visits
Twelve per cent of patients rushed to VGH have adverse reaction to medications, study finds
Pamela Fayerman
Vancouver Sun
6/3/08
Twelve per cent of patients who rush to the emergency room at Vancouver General Hospital are there because of adverse effects from medications, according to study findings being published Tuesday in the Canadian Medical Association Journal.
The 11 international authors of the study said patients with medication-related complaints are more likely to be admitted to hospital beds after they've been seen in the ER and occupy those beds far longer than others, a result the authors described as "striking."
The study estimates that 70 per cent of such visits are preventable through better prescribing, dispensing and monitoring of patients.
"We've proven in this study that we've got a problem in the health care system with patients who experience bad effects from medications and we have to figure out how to reduce those problems," said lead investigator Dr. Peter Zed, who was working at VGH during the study but is now at the Queen Elizabeth Health Sciences Centre in Halifax.
"The solutions will involve better communication among doctors, pharmacists and patients," Zed said in an interview. "Simply handing out a pamphlet at the pharmacy that lists all the potential side-effects doesn't work. Patients don't read them or they don't understand the information."
Problems stemmed from a variety of issues including patients being prescribed the wrong drugs, given wrong dosages, allergic reactions, interactions between drugs and patients not following instructions for how or when to take their medications.
A future study will help determine the best approaches to avoid such problems, Zed said, but plans by the B.C. government to broaden the use of electronic health records will help reduce medication errors. The new record-keeping system will improve communication among doctors, pharmacists and other health providers as well as provide information about the best drugs to prescribe, drug interactions and proper dosages.
About 180 patients a day go to the ER at VGH, B.C.'s biggest hospital with 955 beds. Slightly more than 1,000 patients were randomly selected during a 12-week period from March to June, 2006. In that period, a total of nearly 15,000 patients went to the ER.
Of the 1,017 patients included in the study, 122 - or just over one in nine patients - were at the hospital because of adverse drug-related events, defined as "unfavourable occurrences related to the use or misuse of medications."
No one died from medication effects, but those who were admitted to hospital stayed a median of eight days, compared to 5.5 days for those who were admitted with non-medication problems.
Health Minister George Abbott said in an interview the study points to the need for "continuous improvement when it comes to misuse, overuse and abuse of drugs."
The province plans to establish a patient safety and quality council to reduce adverse events, promote transparency and identify best practices to improve patient care, Abbott said.
A total of 179 medications were implicated in the 122 drug-related visits to ER. Nearly 16 per cent of cases were mild (no treatment required), 75 per cent were moderate (treatment and/or hospital admission required) and just under 10 per cent were severe, with life-threatening symptoms potentially resulting in permanent disability.
The mean age of patients in both arms of the study (drug-related complaints and non-drug) was about 50 and gender was also about evenly split.Adverse drug reactions are often tricky to sort out, and the authors said that is why many patients have to be admitted to hospital beds for monitoring and resolution of their concerns.
Central nervous system medications such as opioid painkillers, antipsychotics for those with mental health issues, sleeping pills, and antidepressants were the types of drugs most likely to cause problems.
Cardiovascular drugs were next and then antimicrobial drugs for infections. The study found that more than two-thirds of patients with medication problems could have avoided their ER visits with better prescribing and better comprehension of how to take the drugs.
Patients in the study were interviewed to determine their primary complaints and to get their health and medication history, and allergy status. A month after they were discharged from hospital they were called by researchers about their progress and outcomes.
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Automatic reduction of workers comp benefits are not a given
May 12, 2008
Diehl v. WCAB (IA Construction and Liberty Mutual Insurance): No. 1507 C.D. 2007
The facts of this matter were not disputed by the parties. On May 24,1999, Claimant suffered an injury while in the course and scope of his work for Employer. Employer acknowledged the injury, in a subsequent Notice of Compensation Payable, as a right mid-foot fracture and calcaneous fracture. Claimant began receiving total disability benefits under the Work Comp Act. On April 4, 2002, Employer filed a Request for Designation of a Physician to Perform an Impairment Rating Evaluation (IRE), and a doctor issued a determination that Claimant's impairment rating was 28%.
On February 1, 2006, Employer filed the Modification Petition at issue seeking to modify Claimant's benefits status from total disability to partial disability, based upon the Dr.'s IRE rating. Hearings were held. Noting Claimant's 28% impairment rating, the WCJ applied Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005). In so doing, the WCJ emphasized that since Employer's IRE request was not made until after the expiration of the 60-day period following the 104-week total disability period, Employer would have to seek a reduction of Claimant's benefit status through the traditional administrative process, as opposed to the automatic self-executing modification provided for in Section 306(a.2) of the Act. Given Employer's failure to timely avail itself of the automatic reduction provided for in Section 306(a.2), and in consideration of Gardner's direction that a traditional administrative process remained the sole avenue for the non-automatic reduction sought, the WCJ concluded that Employer was required to either perform a work availability analysis pursuant to Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987),4 or a Labor Market Survey.
The WCJ further concluded that Employer met its burden of proving Claimant's 28% impairment rating, but had not met its burden of proving entitlement to a modification. The WCJ concluded that Employer had failed to show that there was suitable work available to Claimant within his limitations. Accordingly, the WCJ denied and dismissed Employer's Modification Petition, by order dated October 23, 2006.
Employer timely appealed to the Board. The Board concluded that Employer's mere filing of its Modification Petition was adequate as a matter of law, where, as here, no actual modification of the benefit rate was sought. The Board further concluded that Employer had established that Claimant had a 28% impairment rating, and thusly satisfied its burden on its Modification Petition and was entitled to a change in Claimant's benefits status to partial disability status as of November 8, 2002. Accordingly, the Board reversed the WCJ's order, and granted Employer's Modification Petition. Claimant then petitioned for review of the Board's order.
The PA Commonwealth Court held that the traditional administrative process, under a Modification Petition under the instant facts, required Employer to satisfy either the traditional work availability analysis and burden, or the analysis and burden required under a Labor Market Survey approach and directed the Board to reinstate the WCJ's order in favor of the claimant.
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Patient Safety Authority Issues Annual Report for 2007
Laurene M. Baker
Patient Safety Authority
5/2/08
The Authority in 2007 developed and began implementing a Strategic Plan while facilities continued to use guidance in Patient Safety Advisories to improve patient safety while implementation of Act 52 to eliminate infections in hospitals and nursing homes began
HARRISBURG: The Pennsylvania Patient Safety Authority released its 2007 Annual Report today outlining its Strategic Plan that aligns its activities more closely with its educational and quality improvement mission. Also, facilities increased reporting and continued to make changes based on guidance in Patient Safety Advisories.
“The Patient Safety Authority had a full year last year and this year will be just as active if not more so,” Mike Doering, executive director of the Pennsylvania Patient Safety Authority said. “The initiatives in our Strategic Plan once fully implemented will help to improve patient safety in Pennsylvania.”
The plan increases the Authority’s focus on education and collaboration and identifies several multi-year initiatives, some of which were developed based on feedback from focus groups held with Pennsylvania Patient Safety Officers. Selected initiatives are aimed at educating Boards of Trustees in their role in promoting patient safety, creating an online forum for more routine sharing of best practices and lessons learned among Patient Safety Officers and creating a Patient Safety Liaison pilot program that will offer healthcare facilities on-site education or quality improvement assistance from the Patient Safety Authority.
Other immediate plans for the Authority include hiring a Director of Educational Programs. The Director of Educational Programs will direct the Authority’s statewide and regional education and training programs and help develop educational materials for facilities to utilize. This person would also supervise the regional Patient Safety Liaisons.
“Many Patient Safety Officers have asked for more of a presence from the Patient Safety Authority to help them implement patient safety initiatives,” Doering said. “We recognize that while every facility shares the same goal to improve patient safety, each facility faces different obstacles in achieving that goal. These new Authority employees will work with facilities on a more individual basis to help them achieve their patient safety goals.”
Doering added that several of the initiatives require collaboration with other healthcare and state entities.
“We’re working with the Hospital and HealthSystem Association to implement a pilot program to educate hospital trustees and top-line management and we’ve been working with the Department of Health, Governor’s Office of Healthcare Reform and Pennsylvania Healthcare Cost Containment Council to implement Act fifty-two to reduce and eliminate healthcare associated infections,” Doering said.
Through Act 52 the Authority established a 15-member panel of infection control experts throughout Pennsylvania. The panel has been instrumental in providing guidance for the Authority and Department of Health in determining the reportable infection events for hospitals and nursing homes. The Authority plans to use the panel to assist in identifying training and education activities that will reduce and eliminate healthcare associated infections.
Another initiative in the plan will allow Pennsylvania’s Patient Safety Officers to share best practices and other information through a confidential electronic forum so they can learn from one another more directly.
“So many facilities are developing and implementing great programs to improve patient safety,” Doering said. “Our goal is to help them share the information instead of having each facility reinvent the wheel.”
The Authority will also work towards improving the consistency in the number of reports received through PA-PSRS. The data in the 2007 Annual Report shows that there is substantial variation in the number of reports submitted by different healthcare facilities. While a vast majority of hospitals are reporting Serious Events (events that cause harm to the patient) and Incidents (events that do not cause harm to the patient); the volume varies greatly from facility to facility.
Doering said the Authority believes the main reason facilities are reporting inconsistently is because there are differences among them regarding how to interpret language in Act 13 as to what is reportable. He added that the Authority will work with the Department of Health, which is the state regulator of reporting, to offer facilities more guidance as to what should be reported to bridge the gap in facility reporting levels. The inconsistency is of concern to the Authority.
“These differences in reporting by different types of facilities is concerning for several reasons,” Doering said. “If events aren’t reported, we may be missing opportunities to share information that could help to prevent similar events from happening in other facilities.
“Another concern is that when facilities have different interpretations of the Serious Event definition, a patient who would receive written notification if they were harmed in one facility might not be notified if they were in another facility,” Doering added. “It is important for open communication to occur between the patient and provider when a Serious Event occurs so that everyone understands what happened.”
He explains that according to Act 13 when a Serious Event occurs in a facility the patient that suffered from the Serious Event must receive written notification from the facility explaining what happened. The provision was added in Act 13 to encourage providers to communicate more openly with their patients.
Doering said many facilities have been asking for further guidance about reporting. The Authority has provided facilities with program memoranda to help them interpret what should be reported. (e.g. Facilities should not consider an event as not reportable simply because it is listed on the patient consent form as a possible occurrence.)
Since these efforts have not proven to substantially decrease reporting variability, Doering said the Authority has made standardization a goal in its 2007 Strategic Plan which can be found on page 14 in its annual report (link below).
To accomplish this goal, the Authority will do the following:
• We will work with the Department of Health to explore both organizations’ interpretations of Act 13 requirements, with the goal of providing interpretive guidance that can be used by facility Patient Safety Committees and Department of Health surveyors.
• We are working with healthcare facilities in the Delaware Valley through the Health Care Improvement Foundation to improve reporting consistency for selected types of events.
• We will give guidance to healthcare providers on disclosure of adverse events to patients and their families.
• We will perform a comparative analysis of healthcare facilities that are high-and low-volume reporters in an effort to determine what organizational characteristics encourage a greater level of reporting. We will distribute our findings through the Pennsylvania Patient Safety Advisory.
• A consumer tips sheet is available to further educate patients on the Authority and what is a Serious Event and Incident.
Also in the 2007 Annual Report is the executive summary that gives readers a breakdown of what is contained in the report in a nutshell. As mentioned, more reports were submitted in 2007 than any other previous year. An Advisory article highlighting the problem with wrong-site surgeries made national news and continues to garner interest in the healthcare community. The Authority also continued to offer educational toolkits and consumer tips sheets with each Advisory for further guidance. A Failure Mode and Effects Analysis course was also offered in 2007 to educate facilities on how to examine their current processes for any potential gaps that could cause a Serious Event or Incident.
For the complete 2007 Annual Report, go to www.psa.state.pa.us
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All Partners of Reading, Pennsylvania Law Firm Named To Million Dollar Advocates Forum
By John Badal, Esq.
Partner, Liever, Hyman & Potter
4/25/08
Reading, Pennsylvania The Million Dollar Advocates Forum has announced the certification of attorneys James M. Potter, Donald F. Smith, Jr., Edward E. Houseman and John R. Badal as members. The four attorneys are partners in the Reading , Pennsylvania law firm of Liever, Hyman & Potter, P.C. The well-known Southeastern Pennsylvania firm was established in 1959.
The Million Dollar Advocates Forum is recognized as the most prestigious group of trial lawyers in the United States. Membership is limited to attorneys who have won million and multi-million dollar verdicts, awards and settlements.
“It’s an honor to be recognized by this exclusive forum,” commented Attorney Badal. “It’s rare for all the partners in a firm to earn membership in the organization. We are proud to be the only law firm in either Berks County or Schuylkill County to have more than one lawyer represented. ”
The Million Dollar Advocates Forum was founded in 1993 and there are approximately 3000 members located throughout the country. Fewer than 1% of U.S. lawyers are members. Forum membership acknowledges excellence in advocacy, and provides members with a national network of experienced colleagues for professional referral and information exchange in major cases. Members must have acted as principal counsel in at least one case in which their client has received a verdict, award or settlement in the amount of one million dollars or more.
Mr. Potter and Mr. Badal have also been certified as members of the Multi-Million Dollar Advocates Forum, which requires that they have each acted as principal counsel in at least one case which resulted in a multi-million dollar verdict, award or settlement.
Liever, Hyman & Potter, P.C. handles exclusively motor vehicle accidents, medical malpractice, workplace injuries and other serious personal injury and wrongful death cases. In addition to the four partners, the firm also has two associate attorneys, Mr. Adam K. Levin and Mr. Andrew Fick.
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Attorney John R. Badal Named To Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum
Donald Costello
President
Million Dollar Advocates Forum
3/17/08
The Million Dollar Advocates Forum is pleased to announce that attorney John R. Badal of Reading PA has been certified as a life member of both the Million Dollar Advocates Forum and the Multi-Million Dollar Advocates Forum.
Membership in the Million Dollar Advocates Forum is limited to attorneys who have won million and multi-million dollar verdicts, awards and settlements. The organization was founded in 1993 and there are approximately 3,000 members located throughout the country. Fewer than 1% of U.S. lawyers are members. Forum membership acknowledges excellence in advocacy, and provides members with a national network of experienced colleagues for professional referral and information exchange in major cases. Members of the Million Dollar Advocates Forum must have acted as principal counsel in at least one case in which their client has received a verdict, award or settlement in the amount of one million dollars or more.
Members of the Multi-Million Dollar Advocates Forum must be Life Members of the Million Dollar Advocates Forum and must have acted as principal counsel in at least one case which has resulted in a multi-million dollar verdict, award or settlement. Mr. Badal has been approved for membership in both the Million Dollar Advocates Forum and the Multi-Million Dollar Advocates Forum.
John R Badal is a graduate of Dickinson School of Law and specializes in medical malpractice, auto/truck/motorcycle accidents, nursing home abuse & neglect; workers' compensation and injuries and defective products. He is a partner in the Reading firm Liever,Hyman & Potter.
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Statement From AAJ CEO Jon Haber On Riegel v. Medtronic, Inc. Supreme Court Decision
Pennsylvania Association for Justice
2/22/08
(Washington, DC) - “Today’s Supreme Court decision in Riegel v. Medtronic limits the rights of people to receive justice through the legal system when they are injured by the negligence or misconduct of others. This decision should be narrowly viewed as applying only to certain medical device cases and should not serve as precedent for cases involving drugs and other consumer products.
“We believe this ruling seriously misconstrues Congressional intent.”
Riegel v. Medtronic, Inc.
Today, the Supreme Court issued its decision in Riegel v. Medtronic, Inc. In this case, Charles Riegel received a balloon catheter made by Medtronic which subsequently ruptured due to overinflation. Riegel developed a heart block and underwent emergency surgery. The Riegels later brought claims against Medtronic in the United States District Court for the Northern District of New York. The court found that the Riegels claims were preempted under the Medical Device Act, and the Second Circuit Court affirmed the decision. In this opinion, the Supreme Court affirms.
Summary
• The Supreme Court holds that state law claims regarding medical devices are preempted under the Medical Device Amendments (MDA) where the device manufacturer complied with federal requirements.
• The Court notes that review of the MDA turns on the definition of “requirements” in the statute. The decision states: “Absent other indication, reference to a State’s ‘requirements’ includes its common-law duties.” Thus, the holding expands beyond conflicting State regulations and statutes, which Congress was addressing in the MDA.
Limits of the Decision
It appears that the Court tried to limit the decision in several ways.
• The opinion applies to medical devices only (not approved drugs) based on the preemption language included in the Medical Device Amendments.
• The Court draws a distinction between state law claims made regarding devices approved under substantial equivalent review requirements and §510(k) pre-market approval requirements.
• The Court discusses the extensive FDA review process for Class III medical devices only, rendering the application of the opinion to Class I and II devices uncertain.
• The Court expressly states that the decision does not apply to cases where the manufacturer did not comply with federal requirements.
• In her dissent, Justice Ginsburg’s first footnote states that the “Court’s holding does not reach an important issue outside the bounds of this case: the preemptive effect of §360k(a) where evidence of a medical device’s defect comes to light only after the device receives premarket approval.”
Attacks on the Civil Justice System
This decision makes several derogatory claims about the civil justice system:
• Justice Scalia claims that the “Dalkon Shield failure and its aftermath demonstrated the inability of the common law tort system to manage the risks associated with dangerous devices.”
• The opinion claims that lay juries do not appreciate the benefits of medical devices. “A jury, on the other hand, sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court.”
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Our First-Ever "State of the State's Civil Justice System"
PaAJ adds viral marketing to the Communications Campaign. Be a part of it!Pennsylvania Association for Justice
2/13/08
We have created the first ever "State of the State's Civil Justice System" to assist you in communicating the truths about the civil justice system in Pennsylvania, namely that there is no medical malpractice "crisis," doctors are not fleeing the state in droves, workers' compensation insurance rates are declining, and there is legislation in the works that will make the system even stronger.
We encourage you to use this report under President Tim Riley's name and email it to decision- and opinion-makers, members of the press, professors, editorial writers, bloggers, and anyone else you know who influences public thought. This will introduce you to the concept of viral marketing, increasing the reach of messaging as more and more people send it out. For us, it's a good kind of virus. Please give us the names you share the report with so we can add them to our media list.
If you have any questions, contact Michael Petitti at 215-546-6451 X104 or michael@pajustice.org.
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FDA Ignores Congress and Lets Drug Companies Off the Hook
American Association of Justice
2/6/08
Last month, the Food and Drug Administration (FDA) issued a proposed rule which directly contradicts Congress’ expressed intent when it passed the Food and Drug Administration Amendments Act of 2007 (FDAAA), an act which encompasses the Prescription Drug and User Fee Act. If the rule becomes final, drug companies will enjoy more relaxed labeling requirements and will surely use the rule to claim immunity for failing to warn patients of potential drug hazards.
When Congress passed the FDAAA it included language confirming the responsibility of the drug manufacturer to promptly update its drug label when they become aware of new safety information. Congress was clear that it intended to keep the burden squarely on the drug companies to update warning labels.
Nevertheless, the FDA has promulgated this new rule against Congress’ expressed wishes. Congress explicitly stated that it did not intend to ease the requirements on drug companies to inform consumers of potential drug hazards. It reiterated the need for drug companies to change its label if the drug company learns of reasonable evidence of that risk.
In fact, the drug companies fought and lobbied hard to include language to loosen warning label obligations that the Congress specifically left out of the final bill. But since the drug companies couldn’t get Congress to agree to lessen their responsibilities towards consumers, they turned to the Bush Administration.
Unfortunately, the FDA’s tactics are not new to Bush Administration bureaucrats. Unelected federal agencies have been ignoring congressional directives in a number of other cases. The Environmental Protection Agency (EPA), National Highway Traffic Safety Administration (NHTSA), Consumer Product Safety Commission (CPSC), and others are also engaging in this tactic of Bureaucratic Activism.
We are committed to putting an end to this unjust form of backdoor tort reform and will continue to fight against it. Your help in alerting Congress will also be important. We are providing you with a variety of ways to get involved. Our grassroots action center has dedicated a pre-formatted Letter To Congress. All you need to do is add your name and click send.
We also encourage you to take the effort one step further by making a phone call to your Members of Congress. Send a letter, set up a meeting, whatever it takes, let them know how the FDA is letting drug companies off the hook and ignoring Congressional intent. You can look up their contact information easily at www.peopleoverprofits.org/legdirectory and below this e-mail we’ve included talking points for you.
With your help, we can put an end to this bureaucratic activism.
Thank you for your support,
Linda Lipsen
Vice President, Public Affairs American Association for Justice (Formerly the Association of Trial Lawyers of America)
Talking Points For The Need For Congressional Oversight Hearings
On January 16, 2008, the FDA issued a proposed rule which directly contradicts Congress’ expressed intent when it passed the Food and Drug Administration Amendments Act of 2007 (FDAAA).
Unlike the FDA’s proposed rule, Congress intended the duty to warn consumers of a drug’s hazards rests with the drug company, who is in the best position to warn about problems associated with the drug. However, under the FDA rule, drug companies will enjoy more relaxed labeling requirements and will use the rule to claim immunity for failing to warn patients of potential drug hazards.
The FDAAA, passed just four months ago, requires a drug company to update its label to include drug hazard warnings as soon as there is reasonable evidence of that risk. This law allows consumers to be aware of a drug’s potential risks at the earliest possible moment and prevents injuries and deaths such as those associated with Avandia and Vioxx.
However, under the new FDA rule, drug companies only will have to revise their warning label where they establish “sufficient evidence of a causal association,” which could take years. This is a significantly higher standard that drug companies would have to meet before informing consumers of a potential hazard.
Congress must hold oversight hearings to curb this agency’s abuse of power for the following reasons:
1.) The FDA has ignored expressed congressional intent. Although Congress clearly intended NOT to loosen the requirements on drug companies to inform consumers of potential drug hazards, the new FDA rule will give drug companies broad discretion to determine whether to warn consumers.
2.) The proposed rule is a step backwards from making drugs safer. The new FDA rule will take power away from the FDA to require drug companies to warn consumers of potential problems with prescription drugs at the earliest possible time. It will give drug companies the ability to choose not to inform consumers even if there is new evidence of a potential hazard.
3.) The proposed rule will make it more difficult for consumers injured by prescription drugs to hold negligent drug companies accountable. Under the FDA’s new rule, the manufacturer will be immunized from accountability by claiming that it did not have sufficient evidence to require it to update its label. Without the ability to hold the manufacturer accountable under the FDAAA for failure to warn, the consumer does not have any recourse for its injuries and could become a burden to taxpayers.
4.) The FDA is contributing to a pattern of Bush Administration agencies ignoring clear congressional intent. For example, after Congress passed Public Law 110-53, which preserved railroad derailment victims’ rights, the Federal Railroad Administration issued a proposed rule which sought to provide immunity to negligent railroad companies in the event of a commuter train derailment.
Congress must act to investigate the FDA’s attempt to usurp the authority of Congress to protect the health and safety of their constituents. By using their oversight authority, Congress must ensure
By using their oversight authority, Congress must ensure that unelected bureaucrats are not ignoring explicit Congressional intent. We must end this Bureaucratic Activism.
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Consumer group rips insurance industry
Claim: Companies overcharge an average of $870 per U.S. household
As reported by the Associated Press1/10/08WASHINGTON - U.S. insurance companies systematically overcharge customers and underpay home and auto claims to pad their already-fat bottom lines, a consumer group said Thursday.
The Consumer Federation of America's insurance director, J. Robert Hunter, said insurance companies have enjoyed robust profits and contained losses largely by "methodically overcharging consumers, cutting back on coverage, underpaying claims and getting taxpayers to pick up some of the tab for risks the insurers should cover."
Hunter's comments came with the release of a study by Consumer Federation, Consumers Union and several other consumer organizations that said the industry's overcharges reached an average $870 per U.S. household over the last four years. The loss ratio for property-casualty insurance companies, or the percentage of premiums paid out to policyholders as benefits, was 54.6 percent last year, according to the study, up from 53.3 percent in 2006 but far below the 75 percent level of the late 1980s. The study - based on insurance industry data and companies' financial reports - estimates that the insurance industry's net income after taxes in 2007 will be $65 billion, down from the record $67.6 billion set in 2006 but above 2005's $48.8 billion.
The industry has reaped those profits at the same time that consumers are receiving less money after filing claims, the consumer group said. A study released a year ago by the organization put forward similar conclusions. Consumer Federation urged state regulators to require insurance companies to offer a homeowners policy that covers all risks, prohibit insurers from restricting certain policies by geography and review policy forms for hidden exclusions.
The insurance industry's biggest trade group defended the performance of its members. "The absence of any major storm or earthquake has allowed insurers to post two modestly profitable years. But it wasn't long ago, 2004 and 2005, when our industry suffered record natural-catastrophe losses," Marc Racicot, president of the American Insurance Association, said in a statement. "Our industry is highly competitive, and property-casualty insurance policyholders have more layers of consumer protection than virtually any other segment of the financial services industry," he said. "The rates consumers pay in each state must directly reflect the actual and expected loss experience within that one state, without exception."
Consumer Federation advised consumers to carefully review insurance policies they buy or renew to see if deductibles or exclusions could force them to pay for wind damage, mold or other problems. For people who don't live in coastal areas, the advice was simple: shop around. "Insurers have reduced much of the risk they face, allowing them to earn record profits even in years of severe hurricane activity," the report says. One way companies have shifted risk, it says, is by not renewing policies in certain areas. The report singled out Allstate, which dropped hundreds of thousands of homeowner insurance customers in Florida and other coastal states after a quarterly loss of $1.55 billion from the 2005 Gulf Coast hurricanes.
Allstate is emerging as the "most aggressive in refusing to renew homeowners' policies in the wake of Hurricane Katrina," the study says. Mike Siemienas, a spokesman for Northbrook, Ill.-based Allstate, said that to meet the needs of its 17 million household customers, the company "is taking careful and responsible steps to ensure we will be financially strong in every community we serve regardless of the weather-related challenges our nation faces." Insurance companies have received about $4 billion in subsidies, the report says, since the federal Terrorism Risk Insurance Act took effect in November 2002 after insurers' costs from the Sept. 11 attacks hit $32 billion. The backstop under the act, in which the government agrees to reimburse insurers up to $100 billion in the event of another attack by foreign terrorists, was extended for another seven years under legislation enacted by Congress last month and signed into law by President Bush.
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Malpractice Insurance Fund In Tug-of-war
By John Badal, Esq.
Partner, Liever, Hyman & Potter
December 7 , 2007
The hottest legal topic in Pennsylvania media this is week has been concerning the surplus which doctors in Pennsylvania have accumulated for the payment of one half of their malpractice coverage. The following two articles sum up the situation.
In brief, while businesses have to pay for their own liability insurance and most working Pennsylvanians struggle to maintain health insurance, our tax revenues are being siphoned off to build up a big surplus for doctors. Our Governor thinks that some of these funds should be used to subsidize health insurance for those that would be otherwise uninsured. Contact your state senators and representatives and tell them to support the Governor's plan.
Aid To Doctors For Malpractice Insurance Linked To Health Insurance Aid For Uninsured Adults
From the news services
HARRISBURG, Pa. — Gov. Ed Rendell is threatening to withhold state aid to help doctors pay for their medical malpractice insurance unless lawmakers also act on his proposal to expand state health insurance for adults, a spokesman said Tuesday. Rendell, who has not previously linked the two, was expected to elaborate at an afternoon news conference. The House and Senate are working on legislation that reduces the amount of money that doctors and other health care providers must pay into a state-run medical-malpractice insurance program known as MCare. The aid has been approved on a yearly basis for five years. But Rendell spokesman Chuck Ardo said lawmakers must act to help more adults who cannot afford private insurance before he will sign the malpractice subsidy for 2008. "He is certainly looking for a way to move his entire health care agenda forward," Ardo said.
Rendell's $317 million plan to expand subsidized health care for adult Pennsylvanians has been stalled by opposition to a payroll tax that he proposed to help pay for it. The tax would be levied on all but the smallest businesses that do not provide health coverage for employees. The expansion would also be financed with federal Medicaid dollars and premiums that would be paid by small businesses and health plan enrollees. Lawmakers have many options for raising the $206 million that would be needed to cover the subsidized health care premiums in the first year of the expansion, and Rendell was expected to outline them at the news conference, Ardo said.
Meanwhile, Rendell has said the medical malpractice fund is sound. Payouts will amount to $191 million this year, about half of what was paid in 2003, Rendell has said. The fund is expected to have a surplus of more than $400 million at year's end. The state's malpractice subsidy reduces the amount of money doctors must pay into MCare. The subsidy covers the full insurance cost for doctors in certain high-risk practices, such as orthopedic surgery, and 50 percent of the cost for other doctors.
State law requires doctors to carry at least $1 million in medical malpractice insurance coverage, with at least $500,000 secured through a private insurer. If a doctor cannot get full coverage through private insurance, the MCare fund makes up the difference, up to $1 million.
Doctors' group opposes Rendell plan
David Wenner/The Patriot-News (12/5/07)
A group of Pennsylvania doctors objected Wednesday to tapping a fund originally intended to help pay their malpractice costs and using it to help cover the uninsured. The Pennsylvania Medical Society said it opposes Gov. Ed Rendell's plan to use excess money in the Mcare abatement program to help fund his "Cover All Pennsylvanians" plan for subsidized health insurance
The medical society is the main political voice of doctors in Pennsylvania. Roughly half of the state's 35,000 doctors are members. The medical society said the Mcare abate revenues are needed to help cover doctors' malpractice expenses, and prevent them from leaving the state. Mcare is a state fund used to pay medical malpractice awards exceeding the $500,000 in private coverage doctors must carry. Originally, it was funded with a surcharge on doctors, based on the Mcare payout of the previous year.
But in 2003, Rendell created the abatement program, which has paid the full Mcare surcharge for high risk specialists, and half the surcharge for other doctors. The program has been funded with a 25 cents per pack tax on cigarettes, and revenues from traffic tickets, that generate about $230 million annually. It has been contributing about $220 million annually toward doctors' Mcare costs. But the Mcare payout has been falling, and Rendell says the abatement program has a surplus that will soon reach $500 million. He wants to use part of the surplus to help fund his subsidized health insurance program, which would be available to people who can't afford coverage and to some businesses. Additional funding would come from a proposed 10 cent tax increase on cigarettes, and new taxes on smokeless tobacco and cigars. Using the Mcare funds would provide an alternative to Rendell's original funding source, a three percent payroll tax on businesses that don't provide employee health benefits. The payroll tax has met strong resistance from businesses and Republican legislators. Republicans favor other methods of expanding health insurance coverage and lowering health care costs. These include tax breaks for businesses that offer health savings accounts and wellness programs, and greater price transparency in health care. Republicans also oppose using Mcare abatement funds toward subsidized health insurance.
Rendell says the Mcare surplus is large enough to fund the subsidized coverage while continuing to help with doctors' Mcare costs. But if legislators refuse to approve his program, he said, he'll end the abatement program. The medical society said the Mcare surplus is the result of overcharging health care providers, and it's wrong to use the funds for other purposes.
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PA Commonwealth Court rejects claim that impaired brain function is not a bodily injury
By John Badal, Esq.
Partner, Liever, Hyman & Potter
November 12 , 2007
In a decision that resonated with common sense, the Pennsylvania Commonwealth Court upheld a $500,000 verdict for a severely injured woman who had suffered serious brain injury when she was struck by a falling crossbar of a swing set In Sider v. Waynesboro, Case No. 07-1552, October 4, 2007, According to the opinion, Ms. Sider was using a swing in a borough park when the crossbar holding the swing broke and flung her to the ground. She was then hit in the head by the falling crossbar. Her medical experts testified at trial that her head injuries caused a significant loss of brain function.
In order to successfully sue a municipality for pain and suffering in Pennsylvania, it must be proven that there is a loss of bodily functions. The lawyers for the Borough argued that the bodily function must be a physical function and not a mental function. Senior Judge Jim Flaherty writing for the Commonwealth Court rejected the Borough's argument when he observed: "It is difficult to understand the borough's contention which basically is that those functions of the brain, which are described as cognitive functions , e.g. thinking, memory, reasoning, problem solving, etc, are not functions of the body." Judge Flaherty continued: " Where reactions such as fear, depression, anxiety, etc., may sometimes be attributable to purely emotional psychological distress unrelated to bodily harm, here the evidence proved to the satisfaction of the jury that Sider's brain was physically damaged causing a loss of brain functions which prevented the brain from functioning as it did before."
Waynesboro Borough has not yet decided whether it will seek a further appeal.
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Write Your Representative: Congressional Co-Sponsors Needed for Federal Legislation Omitting Consumer Contracts from Mandatory Arbitration Agreements; Sample Letter Included
By John Badal, Esq.
Partner, Liever, Hyman & Potter
September 18, 2007
Your help is urgently needed on important legislation impacting on all consumers. The Arbitration Fairness Act of 2007 (House Bill H.R. 3010 and Senate Bill S. 1782) would outlaw mandatory arbitration agreements for consumer contracts.
As you know, businesses and corporations bury binding mandatory arbitration clauses in contracts for countless products and services including credit cards, new homes, and cars. These clauses force you to surrender your rights to a privatized system known as arbitration. Corporate wrongdoers and fraudulent companies protect themselves from being held accountable by hiding behind BMA clauses inserted in fine print.
Although states have tried to address this problem through their consumer protection laws, the courts have interpreted the current onerous Federal Arbitration Act to trump state laws leaving consumers very little recourse. Historically, the FAA intentionally omitted ordinary citizens from these types of agreements. The Arbitration Fairness Act would return this statute to its original intention and omit consumer, medical, franchise, and employment agreements from these pre-dispute agreements. Americans are entitled to a trial by jury; pre-dispute mandatory arbitration agreements give only one side the upper hand.
I urge you to write to your Senators and Representatives and tell them to cosponsor this legislation. A sample letter is included below that you are welcomed and encouraged to consider. You can locate mailing info. for your Senators and Representatives by going to www.congress.org
**Sample Letter**
Dear ___________ :
I urge you to cosponsor the Arbitration Fairness Act of 2007, which would ban Binding Mandatory Arbitration clauses in consumer and employment contracts. This unfair practice stacks the deck against average Americans trying to hold powerful interests accountable when they have been hurt through no fault of their own.Buried within the fine print of many consumer contracts for credit cards, home-building contracts and car purchases are clauses that force consumers to give up their rights to seek justice through the courts. These clauses have hurt thousands of Americans already, and will continue to do so if Congress doesn't pass the Arbitration Fairness Act of 2007.
I ask you to consider the story of Guy Combs who was hurt by a Binding Mandatory Arbitration clause:
Vietnam veteran Guy Combs bought a house in his hometown of Alpine, Texas. After living in the house for only four years, Guy discovered that his home had severe structural problems. He asked his builder to repair the damage, but the builder offered to pay only $3,000 for $300,000 worth of damages. When Guy bought the home he unknowingly signed an arbitration agreement, which was not explained to him at the time. Therefore, he was forced to settle his dispute in arbitration.
Guy describes arbitration as "third world justice." The arbitrator refused to recognize that there were damages to Guy's home despite the testimony of twenty expert witnesses that Guy hired. The arbitration process cost him $77,000. The arbitrator billed him a flat fee of $150,000 but after negotiations he brought the fee down to $50,000 plus interest. Guy did not want to lose his ranch and, since there was no means for appeal, he paid the fees.
Guy thought he understood our legal system, until his rights were eviscerated by arbitration.
Guy Combs is just one of thousands of victims of Arbitration. These clauses, buried within many consumer contracts for credit cards, nursing homes and car purchases, stack the deck against ordinary Americans and force consumers to give up their rights before a dispute even occurs.
Again, I urge you to cosponsor the Arbitration Fairness Act of 2007 which bans this unfair practice and allows hardworking Americans to seek justice through the courts, often the only place they can face powerful interests on a level playing field.
Sincerely,
_________________
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It’s important that everyone knows the signs of nursing home neglect
By John Badal, Esq.
Partner, Liever, Hyman & Potter
August 28 , 2007
Horrible allegations of abuse and neglect in Pennsylvania nursing homes and assisted living facilities are a grim reminder of how vigilant we all must be in protecting our elderly parents, grandparents, aunts and uncles.
Dr. Gregory Salko, primary care physician and owner of Birch Hills Residence in Simpson, PA, was recently charged with lying about examining Peggy Rogers, a 69-yr old Alzheimer’s patient at his facility. Medical experts say that if Salko had examined her as he claimed, he could not have missed an obviously malignant tumor and oozing sore on her right breast. The cancer eventually spread to lungs, liver and bones, and ultimately resulted in her death.
If convicted of the felony and misdemeanor neglect charges that he is facing, he could serve up to 25 years in prison.
This is not an isolated case. Problems are much more widespread. According to the media and authorities:
“Prosecutors see just about everything in the course of their careers, so when longtime District Attorney Andrew Jarbola describes the death of a woman in a state-regulated personal care home as ‘the most disturbing case I’ve even seen,’ it merits scrutiny by more than the criminal court system.”
-The Times-Tribune
“Troubled facilities and lax state oversight have for years put residents of Pennsylvania's assisted-living homes at risk of assault, neglect - and tragedy... Since 2000, at least 55 assisted-living residents have died across the state under circumstances that raise questions.”
-The Philadelphia Inquirer
"By the time we get out to them, many homes are in so much trouble that they can't fix the problems - or somebody's already been harmed."
-Karen Kroh, Director, Pennsylvania Dept. of Public Welfare
If you have a friend or relative in an assisted living or nursing care facility, know the signs of neglect or abuse. Our firm has produced a brochure that details clues that you should look for. For a free copy, contact us through this web site or call us at 610-375-6131 .
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Evidence of seatbelt non-use allowed in product liability trial involving airbags
Pike County Court rules evidence was valid because it helped to show decedent’s position during crash
By John Badal, Esq.
Partner, Liever, Hyman & Potter
August 8 , 2007
Following the death of a Pike County man in a one-car accident, the decedent’s widow sued Ford Motor Company, alleging that if the airbag hadn't been defective, the decedent would have suffered only minor injuries.
According to the court's summary of the facts in Gaudio v. Ford Motor Co., Andrew Gaudio was driving to work when he encountered an intersection where a stop sign had fallen down days before. He slammed on the brakes of his Ford F-150 and veered into a ditch on the side of the intersection, hitting a rocky embankment. He was dead when rescue personal arrived. He was not wearing a seatbelt, and his airbag had deployed.
In her suit against Ford, the victim’s widow alleged that the design of the airbag system was defective and caused the driver's side airbag to deploy at a speed where it should not have deployed at all, or that it deployed late causing the driver's body to be too close to the airbag.
Evidence that the decedent failed to wear a seatbelt was deemed admissible by the Pike County Court of Common Pleas because it was used to support defendant’s theory about the role that the decedent’s physical position in the vehicle had in his death.
The jury returned a verdict in Ford’s favor. The plaintiff appealed, arguing that the court erred in allowing evidence of decedent’s seatbelt non-use because such evidence per the Pennsylvania Seat Belt Statute, is not allowed in a personal injury trial. The court rejected this argument, relying upon the Pennsylvania Superior Court decision in Kreiensieck v. Lowery to hold that where a violation of the seat belt law is not used to prove contributory negligence, as was the case in Gaudio, but instead for the purposes of proving why an airbag was not defective in a products liability claim, the Seat Belt Statute does not preclude evidence of non-use to be placed before the jury.
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Tell your Senator to oppose SB 704 - Seeking limited liability
for assisted living residences
(7/11/2007) - Pennsylvania Senate Bill 704 is expected to be reported out of the Senate Rules Committee . [Click here to view current version of this bill.]
Please call your state senator at once and ask him or her to oppose SB 704 in its current form. You can find the contact information on your senator by going to the Pennsylvania General Assembly Web site: http://www.legis.state.pa.us/ (See Find Members By).
The Pennsylvania House amended this bill, which is part of the Governor's health care package, by a vote of 198-0, to provide for "Informed Consent Agreements" between assisted living facilities and individuals, many of whom have dementia, Alzheimer's or other memory impairments and cognitive problems, that supposedly "balance the Assisted Living Residence's responsibilities to the individuals they serve with a resident's choices and capabilities with the possibility that those choices will place the resident or other residents at risk of harm."
The amendment further provides that regulations shall be implemented that "create standards for informed consent agreements that promote aging in place which includes written acknowledgment of the risks that residents assume while directing their own care and which releases the facility from liability for adverse outcomes resulting from actions consistent with the terms of the Informed Consent Agreement" (emphasis added).
This amendment is objectionable for a number of reasons. It attempts to limit the liability of an assisted living facility for neglect in the care of a resident based upon an agreement the resident will be required to sign in order to obtain necessary care. It is a clear contract of adhesion and is especially repugnant in view of the fact that many of those who will be asked to sign these agreements are cognitively impaired and dependent on the facility for their care and housing. Should this provision become law, proponents could use it to support further efforts to limit health care facility liability in other settings by conditioning the rendering of care on an individual's "agreement" to waive his or her legal right to hold the facility accountable in the event of harm resulting from neglect in the rendering of care.
PLEASE CALL YOUR STATE SENATOR IMMEDIATELY AND ASK HIM OR HER TO OPPOSE SB 704 IN ITS CURRENT FORM.
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Employer Penalized for Denying Work Injury Claim
By John Badal, Esq.
Partner, Liever, Hyman & Potter
June 11, 2007
On May 14, 2003, an employee of Philadelphia Newspapers, Inc. was struck on the back of his head with a 25-30 lb. bundle of newspapers that had fallen 20 -25 feet. The injured man, George Jordan, tried to keep working, but developed dizzy spells and pain and stiffness in his neck and upper back. He was out of work from May 22, 2003 through July 11, 2003, during which time he received his regular salary. He returned to work on July 12, but continued to suffer pain. When it was too intense to work, he used vacation days. On September 26, 2003 he stopped working.
Jordan’s employer initially filed a Workers Compensation Notice describing the injury as " post concussion syndrome and cervical and lumbar sprains." However, it later issued a Workers Compensation Denial, forcing Jordan to file a claim and a penalty petition.
A Workers Compensation Judge granted the claim, along with a 50% penalty to the employer for issuing a Notice of Compensation Denial when it knew for a fact that it was liable for a work injury. The claim was ultimately granted. Unreasonable contest fees were awarded on both the claim and penalty petitions.
The Commonwealth Court recently upheld that ruling, ruling that a penalty provision of the PA Workers’ Compensation Act applies not only to workers who suffer wage loss due to a work injury, but to any injured employee who the employer continues to pay in an effort to avoid a work comp claim. The Court ruled that if an employer is aware of a work injury, yet fails to issue a Notice of Compensation Payable (NCP), it violates the Act. They ruled that a 50% penalty was proper, and also made the employer pay for the Claimant's full attorney's fee, holding that the employer’s contest to the claim was not reasonable even though the employer admitted to an injury on the Notice of Compensation Denial (NCD). The employer never presented any evidence to suggest that the injury did not occur. The Claimant was entitled to the full value of his attorney’s fees because he was forced to establish a work injury by hiring an attorney, filing a claim petition and presenting uncontested evidence in work comp hearings.
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OxyContin manufacturer hit with $600-million fine for “misbranding”
By John Badal, Esq.
Partner, Liever, Hyman & Potter
May 16 , 2007
OxyContin is a powerful, long-acting painkiller. It’s a higher strength version of a well-known narcotic called oxycodone, but its manufacturer – Purdue Pharma – boasted that this new brand’s time-release formula made it less likely than other prescription opioids to be abused or addictive. Their product positioning and aggressive marketing campaign to physicians worked; annual sales of OxyContin topped $1-billion.
But within five years of its 1995 introduction, crime rates, teenage addiction and deaths related to the drug evidently were soaring.
According to The New York Times, a federal investigation revealed internal company documents showing that, before OxyContin was launched, Purdue Pharma executives recognized that doctors would be concerned about the potential of patient addiction and abuse. As a result, prosecutors charged, the company created a deceptive marketing campaign built on the fraudulent claim that the drug’s time-release formula was less likely than other drugs to be abused.
The media report than on May 10, 2007 , Purdue Frederick – an affiliate of Purdue Pharma – pleaded guilty in federal court to criminal charges and agreed to pay $600 million in fines and other payments. The president of the company and two other executives pleaded guilty to misdemeanor charges of misbranding the drug and agreed to pay an additional $34.5 million in fines.
This is the latest case – and one of the largest fines so far for a fraudulent “less addictive” claim – against pharmaceutical makers under the Justice Department’s broad statute of “misbranding,” that makes it a crime to label or promote a drug with false or misleading information. The problem has gotten the attention of legislators as well; the Senate just passed – by a vote of 93 to 1 – a bill giving the FDA new power to oversee drug advertising and labeling, and to restrict the use distribution of medicines posing serious risks to consumers.
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Late filing prompts termination of medical malpractice case
By John Badal, Esq.
Partner, Liever, Hyman & Potter
April 20, 2007
In Pennsylvania, doctors, hospitals and other medical providers have special protections that other citizens don't have when they are sued for injury or death. A review of one of these rules – and a recent Pennsylvania Superior Court ruling – confirm the importance of prompt, capable legal action when wrongful medical injury is suspected.
A “complaint” is a legal document that sets forth the factual allegations against the parties being sued. When the complain involves medical malpractice, one of the rules that apply only to "Professional Liability Actions” is that, within 60 days after filing the complaint, the plaintiff's lawyer must then file a signed "Certificate of Merit." This certificate must state that an appropriate licensed medical professional has supplied a written statement that there was medical malpractice that caused harm
.
On March 27, 2007 the Pennsylvania Superior court upheld the dismissal of a medical malpractice case against a podiatrist and a podiatry office because the Plaintiff patient was two months late in filing the "Certificate of Merit." The Plaintiffs' lawyers alleged that the podiatrist performed surgery to remove a neuroma (a tumor of nerve fibers) that didn't exist and that, in fact, an MRI taken before the surgery showed no neuroma. (Magnetic Resonance Imaging [ MRI ] is an imaging technique used to produce high quality images of the inside of the human body.) The MRI report was given to the Defendants' lawyers. Therefore, it was argued that a Certificate of Merit was not necessary. The Court rejected this argument along with other arguments to reopen the case and ruled that the Plaintiffs were not excused from filing the Certificate of Merit.
It is important to realize that it often takes months for a lawyer to obtain medical records that are needed to evaluate a medical malpractice case. It can also take more months to then obtain a report from a qualified doctor who is willing to testify if the case is meritorious. Since there is a two-year Statute of Limitations in Pennsylvania governing a personal injury lawsuit, it is essential that a capable medical malpractice attorney be contacted as soon as serious injury is suspected to be caused by negligent medical care.
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A Major Victory For Victims' Families
By John Badal, Esq.
Partner, Liever, Hyman & Potter
April 4, 2007
Last month, Pennsylvania’s Third Circuit Court of Appeals unanimously upheld a $7.4 million verdict against the Department of Veteran's Affairs for conduct that was grossly negligent. The case (Camille DeJesus et al v. U.S. Dept. of Veteran Affairs) involved the release of a violently deranged mental patient who then murdered two of his children and two of his children's friends.
Alejandro DeJesus was a homeless Vietnam vet with a history of domestic abuse. He had been diagnosed at a Veterans facility near Philadelphia, PA, as suffering from an "intermittent explosive personality." He was found to be subject to violent outbursts and suicidal actions and thoughts, and placed in a treatment program.
DeJesus’ wife, Camille, filed for divorce causing him to be "very distraught." The VA documented that he threatened another patient with a knife. The VA discharged him from their program for "creating a physical threat with a weapon." Before he left, he shredded much of his clothing and possessions. Despite these actions, no one at the VA made use of the Pennsylvania involuntary commitment procedures. Eighteen hours after he was released, DeJesus charged through the door of Camille's apartment and shot two of her children and two neighbor children. He then turned the gun on himself.
At trial the plaintiffs presented the testimony of a highly qualified psychiatrist that DeJesus's behavior was consistent with his diagnosis of an "intermittent explosive disorder," and that he believed that the VA grossly failed in its duty to take into account a patient's history in making treatment decisions. Under the circumstances, DeJesus should not have been released. The Third Circuit Federal Court found that under Pennsylvania Law a Mental Health Institution is responsible for injury or death resulting from its gross negligence in the treatment of mental health patients. That responsibility would extend to persons injured or killed by dangerous patients who should not have been released, making this is an important ruling for innocent victims and their families.
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Pennsylvania Supreme Court Decision Drives Home the
Importance of “Underinsured Motorists Coverage”
By John Badal, Esq.
Partner, Liever, Hyman & Potter
March 23, 2007
In Pennsylvania, there is a statute (law) that tells insurance companies what kinds of insurance coverage they must include in auto policies. One of those types of coverage is called " Underinsured Motorists Coverage." This coverage is important. It will protect you, your family and others riding in your car if a careless driver crashes into you. If that careless driver does not have enough bodily injury liability insurance to pay for all of the harm that occurs, then your "Underinsured Motorists Coverage " will pay those who are injured. It will pay so that each injured person if fully compensated, but will not pay more than the amount of coverage that you select.
Usually this kind of coverage does not require a big premium. Still, your insurance agent may suggest you save money by reducing or eliminating this coverage. If at all possible, do not agree to do so. Make sure that your Underinsured and Uninsured Motorists Coverage are at least as much as your Bodily Injury Liability Coverage. This way your family will be protected.
Insurance companies in Pennsylvania have tried to reduce Underinsured Motorists Coverages by writing policies that restrict your right to collect coverage. The Supreme Court Of Pennsylvania has issued rulings that have allowed companies to keep their exclusions. One such case was decided in February, 2007: Pennsylvania National Mutual Casualty Co. vs. Black. A young man died while a passenger in a car that was involved in a two-car crash that was argued to be both drivers' fault. Both insurance companies paid their full bodily injury coverage but it only totaled $115,000. The estate for the deceased young man claimed that the insurance company covering the car in which their son was riding should pay both Liability and Underinsured Motorists Coverage. But the insurance company's policy prohibited payment of both even though two separate premiums were paid, and it was not disputed that the damages were far more than both coverages. In a 27-page opinion, the Justices of the Pennsylvania Supreme Court ruled in favor of the insurance company.
This just drives home the importance of Underinsured Motorists Coverage.
