Sunday, 2 June 2013
Whistleblower Lawsuits, Part 2: Qui Tam Recoveries in Various Industries
In part 2 of our 4-part Whistleblower series, Qui Tam attorney C. Brooks Cutter discusses the various industries where Qui Tam lawsuits are prevalent.
Stryker Hip Recall, Broadspire & the Meaning of Two Words
Not since the days of Monica Lewinsky has parsing the meaning of a word—or two in this case—been worthy of such scrutiny. The words, "if necessary" in this "Claims & Reimbursement FAQs" link on the Stryker website should perhaps make any hip replacement patient who's been affected by the Stryker Rejuvenate and ABG II modular-neck hip stems recall suspect.Defective Product Dog Bites / Dog Attack Elder Abuse Fatal Accidents Head Injuries Medical Malpractice
Obstetrical team allegedly ignores risk factors
On Aug. 2, 2008, the patient, 33, was at approximately 41 weeks of gestation with the following risk factors: She was morbidly obese with a body mass index of 45; the estimated weight of the child at delivery was over 9 pounds; and her first and second phases of the delivery showed a clearly protracted [...]
Source: http://masslawyersweekly.com/2013/05/30/obstetrical-team-allegedly-ignores-risk-factors/
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Federal Safety Board Considers Lowering of Legal Limit for Drunken Driving
Wow, this could be a real shock to those who like to have a couple of drinks before driving home after work. It’s possible the legal blood-alcohol limit could be reduced from .08 to .05. That would be at least a one-drink difference for many people and could mean the difference between being arrested or not.
I have mixed feelings about such a change. It wouldn’t affect me personally because I don’t drink, but many of my friends and family do. There’s no question that a blood-alcohol level below .08 does make some drivers less able to drive safely. On the other hand, this new limit would be getting pretty close to telling people they just cannot drink at all if they’re going to drive. There’s a balance in there somewhere, and I don’t know where it is. I do know this would be bad news for bars and very good news for criminal defense lawyers!
That change is a new recommendation from the National Transportation Safety Board. The details are contained in an article from the New York Times yesterday. Here are excerpts:
Thousands of people are killed or injured every year by drivers who have been drinking but are not legally drunk and have a reduced ability to see, make decisions or operate a vehicle, the National Transportation Safety Board has said. The board met recently to consider recommending that the states reduce the allowable blood-alcohol concentration by more than a third, to 0.05 percent from 0.08 percent, the national standard that was established a decade ago at the instigation of Congress.
The 0.05 percent standard is mostly focused on social and casual drinkers, but researchers hope it will reduce consumption among all drivers. Any recommendation made by the board would carry substantial influence.
Blood-alcohol concentration varies by body weight, gender, stomach contents and other factors, but generally speaking, a 180-pound man could consume four beers or glasses of wine in 90 minutes without reaching the current limit. At a limit of 0.05 percent, he could legally consume only three. A 130-pound woman could probably consume three drinks in 90 minutes and still be legal under the existing standard; if the limit were lowered, she could consume only two.
The board voted last year to recommend that anyone convicted of drunken driving be required to install a breathalyzer interlock in their car, which would prevent the vehicle from starting without an alcohol test, a strategy intended to combat repeat offenders. And the board favors research on built-in alcohol detectors for new cars, which could measure blood-alcohol content through a driver’s palms on the steering wheel or some other unobtrusive way. Those could be available as an option on new cars or could be universally required. Either would affect drinkers who have never been caught driving, who make up more than 90 percent of those involved in fatal crashes that are related to alcohol.
People with a blood-alcohol level of 0.05 percent are 38 percent more likely to be involved in a crash than those who have not been drinking, according to government statistics. People with a blood-alcohol level of 0.08 percent are 169 percent more likely.
The standard in most of the industrialized world is 0.05 percent. All 50 states and the District of Columbia switched to 0.08 percent after President Bill Clinton signed a law in 2000 that withheld highway construction money from states that did not agree to that standard.
The rate of deaths from crashes where the driver is found to be legally drunk is about 30 percent of all fatalities now, down from about 50 percent when President Ronald Reagan first raised the issue as a national concern in 1982. (The number of deaths is down to about 10,000 a year from 21,000 over the same period.) Highway deaths are decreasing over all because of better designed cars, seat belt use and better highways.
The lower blood-alcohol recommendation would most likely face opposition from distillers, brewers, vintners, bars and restaurants, which could face a substantial loss of business.
Sarah Longwell, the managing director at the American Beverage Institute, a restaurant trade association, called the idea “ludicrous.”
“Moving from .08 to .05 would criminalize perfectly responsible behavior,” she said. And “further restriction of moderate consumption of alcohol by responsible adults prior to driving does nothing to stop hard-core drunk drivers from getting behind the wheel,” she said.
If the board moves ahead, it will have the support of other advocates, but not Mothers Against Drunk Driving. That group said it favored many parts of the board’s agenda, including mandatory installation of the breathalyzer interlock for anyone convicted of driving drunk, research on the passive alcohol sensors and “administrative license revocation,” which gives police officers on the highway the authority to seize a driver’s license at the time of an arrest. Those show strong potential for reducing the death toll, said J.T. Griffin, a Washington representative of the group.
The discussion of changing the definition of drunk, he said, was the safety board “trying to focus on a group of people who are more social drinkers, who haven’t been targeted in a while.” MADD would not oppose the change, he said, but would pursue other remedies.
The 0.08 percent limit is one legal standard under which a driver can be convicted of driving under the influence and constitutes “per se” inebriation. Without a test, or even with a test with a lower result, a driver could still be convicted on the basis of other evidence, including the observations of a police officer and the results of a field sobriety test. But such convictions are rare.
Technology Increasing Dangers of Distracted Walking
I’ve written many times about the dangers of driving while distracted, whether by cell phones or conversations with passengers. But good grief — now we also have to worry about the dangers of distracted walking!
So many of us walk around with earphones blaring and focused on our smart phones, reading e-mail or sending text messages, that we’re placing ourselves in harm’s way. This problem was detailed in a recent article in the San Francisco Chronicle. Here are excerpts:
A young man talking on a cell phone meanders along the edge of a lonely train platform at night. Suddenly he stumbles, loses his balance and pitches over the side, landing headfirst on the tracks.
Fortunately there were no trains approaching the Philadelphia-area station at that moment, because it took the man several minutes to recover enough to climb out of danger. But the incident, captured last year by a security camera, underscores the risks of what government officials and safety experts say is a growing problem: distracted walking.
On city streets, in suburban parking lots and in shopping centers, there are usually people strolling while talking on phones, texting with their heads down, listening to music or playing video games. The problem isn’t as widely discussed as distracted driving, but the danger is real.
Reports of injuries to distracted walkers treated at hospital emergency rooms have more than quadrupled in the past seven years and are almost certainly underreported. There has been a spike in pedestrians killed and injured in traffic accidents, but there is no reliable data on how many were distracted by electronics.
State and local officials are struggling to figure out how to respond, and in some cases asking how far government should go in trying to protect people from themselves.
In Delaware, highway safety officials opted for a public education campaign, placing decals on crosswalks and sidewalks at busy intersections urging pedestrians to “Look up. Drivers aren’t always looking out for you.”
Philadelphia officials are drafting a safety campaign that will be aimed in part at pedestrians who are looking at their devices instead of where they’re going. “One of the messages will certainly be ‘Pick your head up’ – I want to say ‘nitwit,’ but I probably shouldn’t call them names,” said Rina Cutler, deputy mayor for transportation and public utilities.
A University of Maryland study found 116 cases over six years in which pedestrians were killed or seriously injured while wearing headphones.
About 1,152 people were treated in hospital emergency rooms in the United States last year for injuries suffered while walking and using a cell phone or some other electronic device, according to the Consumer Product Safety Commission. But that’s likely an underestimate because patients may not mention they were using a device at the time they were injured, said Tom Schroeder, director of the commission’s data systems.
Source: http://www.pissd.com/2012/08/technology-increasing-dangers-of-distracted-walking/
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Holiday Decorations and Injury Risks
The holiday season is marked by a wide range of different traditions, from caroling and gingerbread houses to candy canes and mistletoe. One of the most popular and enduring of these traditions is putting up holiday decorations, whether on a Christmas tree, around the house, or in public places. Unfortunately, this tradition poses some serious risks for those who engage in it. In fact, according to statistics compiled by the CDC, thousands of Americans each year are injured in fall-related accidents while putting up Christmas decorations.
One of the most common causes of injuries incurred while decorating for the holidays is slip and fall accidents. Particularly because of icy conditions during the wintertime and the precarious position that standing high on ladders to hang lights and other decorations can put a person in, it’s important to be aware of the risks that putting up holiday decorations can pose and what you can do to prevent a serious injury from occurring.
The following are some useful tips for what you can do to help avoid a slip and fall injury while putting up decorations and stay safe during the holiday season:
- ŸWatch out for extension cords. Lots of holiday decorations require electricity to power them, and extension cords can help to make it possible to put your decorations where you want them. However, if extension cords are left in areas of high foot traffic, they can become a slip and fall hazard, potentially causing decorators and others to trip over the cord if they’re not careful. Therefore, it’s important to always be on the lookout for extension cords around holiday decorations.
- ŸHave someone hold your ladder. If you’re hanging decorations in tall spaces and need to use a ladder, you should have someone secure the base to ensure that it doesn’t tip over, bringing you down with it. In fact, falls from ladders ranked as the most common cause of holiday decoration-related injuries, according to the CDC.
- ŸAvoid wet or slippery areas. Ice and snow in the wintertime can cause outdoor walkways to become slippery and wet, increasing the likelihood of a slip and fall accident occurring. Avoiding wet or slippery areas can help to prevent this type of accident.
These and other safety measures can help to ensure that you aren’t involved in a serious accident during the holiday season.
This guest post is from Abby Pearson. Abby is a professional blogger who works for a wide range of clients, including dental professionals, cleaning companies, and a personal injury lawyer.
Source: http://www.pissd.com/2012/12/holiday-decorations-and-injury-risks/
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The SJC on data privacy and 93A’s injury requirement
Tyler v. Michaels Stores, Inc., a recent decision by the Supreme Judicial Court, has already generated a significant amount of attention, mostly as a result of the SJC’s broad construction of G.L.c. 93, §105(a), the consumer privacy statute governing credit card transactions. Among other things, the court in Tyler held that zip codes are “personal [...]
Source: http://masslawyersweekly.com/2013/05/23/the-sjc-on-data-privacy-and-93as-injury-requirement/
The Fallacy of Loser Pays in Tort Litigation
There are exceptions, of course, such as legal fees being part of a sanction for frivolous litigation, but we deal here today with the general rule.
There are two issues regarding the rule: The first is that it effectively closes the courthouse door to much of middle America. On one side in a typical tort case is likely to be a multi-billion dollar insurance company defending an auto collision or medical malpractice case, and on the other a person who may be struggling to work, or incapacitated and trying to figure out how to pay the mortgage or rent.
One side has incentive to run the meter and stall, and can readily afford to do so. If the litigant loses a simple issue of “who had the green light” then financial devastation may follow, but there is no such threat on the other side. The parties are not equal and the scales of justice unbalanced.
But the second issue is more interesting to me here because it deals with even broader public policy issues, and that came up with Olson’s comment responding to me:
A “legal system that only the wealthy can use” is not an accurate description of the pluses and minuses of the legal systems in the great majority of advanced democracies where loser-pays is the norm, such as Canada, the U.K., Scandinavia, the Netherlands, and so forth. It does, unfortunately, accurately describe some sectors of the American legal system (such as small high-merit claims and many injunctive matters) where neither fee shifts nor contingency fees are available. Oppose loser-pays if you like, but enough of the sloganeering.
The U.S. system here is compared to other nations with reputations for significant social service programs (and high taxes to pay for them). Universal health care is the most obvious example. The U.S., by contrast, has far less government involvement with our lives and some of the lowest taxes of any industrialized nation on earth.
If we close the court house door on people by making it more difficult to proceed, then what happens to those already injured? Well, they absorb the costs themselves until they are poor enough for the minimal social service programs that we have and then the taxpayer picks up the tab. And they remain poor, having now been victimized first by the negligence of others and then again by being forced to bear the financial burden.
The American Rule, as it now stands, is consistent with the parties working things out privately in court with minimal government intervention. Sure, verdicts can get tossed out if they are true outliers, but for the most part verdicts are respected.
The interesting part about this political discussion, I think, is that last week Overlawyered became affiliated with the Cato Institute, a libertarian think tank. While I certainly wouldn’t want to speak for them, it seems to me that a loser-pays system (and other tort “reform” measures that give protections and immunities to those who are negligent) garners greater government involvement in the lives of the populace, contrary to its own political philosophy.
If we want to shift the costs of injuries caused by negligence away from the tortfeasors and onto the backs of the taxpayers, then we need those Scandanavian government economies to accommodate that shift and provide the support.
The U.S., I think it’s clear, isn’t going that way. We are faced with a choice as to whether we let parties duke things out privately or let the government come in with support. A nation can have one or the other. But what we can’t have, is both the stripping away of private rights at the same time that we have limited government support. That is not the model used by any industrialized nation that I know of.
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Negligence – EMTALA – Disparate screening
Where a judge dismissed a disparate screening claim, the dismissal order must be vacated because the plaintiffs’ allegations are sufficient to raise a trialworthy case under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §1395dd.
Source: http://masslawyersweekly.com/2013/05/30/negligence-emtala-disparate-screening/
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Saturday, 1 June 2013
Featured Link — Child Injury Laws Blog
An interesting resource for those seeking information on the many types of injuries that children can suffer (and safety tips to avoid those injuries) is the Child Injury Laws Blog, published by Chicago personal injury attorney Jonathan Rosenfeld. This blog is worth reading. Check it out.
Source: http://www.pissd.com/2012/09/featured-link-child-injury-laws-blog/
Disability Insurance Bad Faith, Part 1
In part 1 of the Disability Insurance Bad Faith series, California insurance attorney Eric Ratinoff discusses the marketing efforts of California insurance companies towards
California physicians in the 1970's through the mid 1990's, and the impact that has had on doctors filing disability insurance claims. 
California physicians in the 1970's through the mid 1990's, and the impact that has had on doctors filing disability insurance claims.
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With Golf Cart Accidents on the Rise, how Stupid can you be in a Golf Cart?
Being stupid in a golf cart is something that comes naturally for some folks--and unfortunately can lead to serious injury in a golf cart accident. Defective Product Dog Bites / Dog Attack Elder Abuse Fatal Accidents Head Injuries Medical Malpractice
Whistleblower Lawsuits, Part 1: What is a Qui Tam Lawsuit?
In part 1 of our 4-part Whistleblower series, Qui Tam attorney C. Brooks Cutter explains Qui Tam Lawsuits. 
Athletics and Traumatic Brain Injury
This guest post is from the Joye Law Firm.
We often hear the phrase: “the world is a dangerous place.” The planet is not only filled with emotional problems and mental stressors, but many physical hazards as well. While there are a number of dangers faced by individuals living in the world today, the development of traumatic brain injuries can be amongst the most severe and life altering. In addition to their extreme severity, brain injuries are considered by most experts to be relatively common—in fact, thousands of individuals will sustain a brain injury each year. The causes of brain injuries are as varied as their levels of severity but often include car and other vehicle accidents, slips and falls, and sports-related injuries.
While a significant amount of attention has been given to brain injuries in professional sports over the past few years brain injury is dangerously common amongst all levels of sports. A recent study conducted by the Cleveland Clinic has brought attention to the alarming level of brain injuries suffered by college football players at American universities. For the study researchers took blood samples and brain scans of 67 college football players before games during the 2011 season. The same samples and data were then collected from these players later in the season after participating in a number of games.
The results of the study indicated that of the 67 players participating in the study 40 showed signs of traumatic brain injury based on the various biomarkers that the researchers collected. Further review of video footage of the games that these players participated in showed that these same 40 players had experienced more and harder hits during the season then the players who did not show signs of brain injury, suggesting a direct correlation. More frightening was the fact that even after experiencing these game-time blows, many players continued participating in the game. This is common practice and players are rarely deemed unfit to play unless suffering an obvious injury such as a serious sprain, broken bone, or concussion.
While a player will be removed from the game if he shows signs of a concussion, hits that do not cause concussions, especially those that are experienced repeatedly, are equally damaging, if not more so, due to their accumulative effects. According to Damir Janigro, Ph.D. who was one of the researchers who worked on the study: “Much attention is being paid to concussions among football players and the big hits that cause them, but this research shows that more common, ‘sub-concussive’ hits appear to cause damage too.”
While athletic-related TBIs (traumatic brain injuries) are a major concern, they make up only a fraction of the different causes of TBIs. Fortunately there are options for those who have been diagnosed with brain injuries, and while preventative measures are certainly the best remedy, medications, surgery, and different types of rehabilitation are all current options for individuals who have suffered a traumatic brain injury. If you are currently participating in full-contact sports at any level and you have experienced numerous hits, regardless of whether you sustained a concussion, please contact your physician to assess your situation and prevent any further damage.
Source: http://www.pissd.com/2013/04/athletics-and-traumatic-brain-injury/
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Technology Increasing Dangers of Distracted Walking
I’ve written many times about the dangers of driving while distracted, whether by cell phones or conversations with passengers. But good grief — now we also have to worry about the dangers of distracted walking!
So many of us walk around with earphones blaring and focused on our smart phones, reading e-mail or sending text messages, that we’re placing ourselves in harm’s way. This problem was detailed in a recent article in the San Francisco Chronicle. Here are excerpts:
A young man talking on a cell phone meanders along the edge of a lonely train platform at night. Suddenly he stumbles, loses his balance and pitches over the side, landing headfirst on the tracks.
Fortunately there were no trains approaching the Philadelphia-area station at that moment, because it took the man several minutes to recover enough to climb out of danger. But the incident, captured last year by a security camera, underscores the risks of what government officials and safety experts say is a growing problem: distracted walking.
On city streets, in suburban parking lots and in shopping centers, there are usually people strolling while talking on phones, texting with their heads down, listening to music or playing video games. The problem isn’t as widely discussed as distracted driving, but the danger is real.
Reports of injuries to distracted walkers treated at hospital emergency rooms have more than quadrupled in the past seven years and are almost certainly underreported. There has been a spike in pedestrians killed and injured in traffic accidents, but there is no reliable data on how many were distracted by electronics.
State and local officials are struggling to figure out how to respond, and in some cases asking how far government should go in trying to protect people from themselves.
In Delaware, highway safety officials opted for a public education campaign, placing decals on crosswalks and sidewalks at busy intersections urging pedestrians to “Look up. Drivers aren’t always looking out for you.”
Philadelphia officials are drafting a safety campaign that will be aimed in part at pedestrians who are looking at their devices instead of where they’re going. “One of the messages will certainly be ‘Pick your head up’ – I want to say ‘nitwit,’ but I probably shouldn’t call them names,” said Rina Cutler, deputy mayor for transportation and public utilities.
A University of Maryland study found 116 cases over six years in which pedestrians were killed or seriously injured while wearing headphones.
About 1,152 people were treated in hospital emergency rooms in the United States last year for injuries suffered while walking and using a cell phone or some other electronic device, according to the Consumer Product Safety Commission. But that’s likely an underestimate because patients may not mention they were using a device at the time they were injured, said Tom Schroeder, director of the commission’s data systems.
Source: http://www.pissd.com/2012/08/technology-increasing-dangers-of-distracted-walking/
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Social services – Disability – Bipolar disorder
Where the plaintiff was denied supplemental security income and disability insurance benefits, the administrative law judge’s decision that there exist jobs in significant numbers in the national economy that she could perform despite her bipolar disorder is based on substantial evidence.
Source: http://masslawyersweekly.com/2013/05/24/social-services-disability-bipolar-disorder/
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