Trial Attorney Blog

Our medical malpractice attorneys are many times forced to turn away cases against emergency rooms where the patient is injured by clear negligence. This is caused by the gross negligence standard for emergency departments adopted by the Legislature in 2005.

With the Georgia Legislature meeting this week, Senators from both sides of the aisle, Democrats and Republicans, have joined to co-sponsor Senate Bill No. 286. This bill is designed to amend the provision of the so-called Tort Reform Bill initially passed in 2005, which essentially gave emergency rooms immunity from law suits. As part of the February 2005 bill, patients alleging malpractice in emergency rooms must prove gross negligence. Gross negligence is most often characterized under Georgia law as a reckless disregard for the safety of a patient, and in many cases has been interpreted to mean intentional harm.

Georgia’s gross negligence standard is the harshest in the country. Supporting this amendment are not only Republican and Democratic Senators, but Mothers Against Drunk Driving (MADD). MADD Director, Denise Themes, has commented that victims of drunk driving accidents usually go directly to an emergency room for treatment. She points out that given the unique conditions in the statute, it’s nearly impossible for one of those victims to prove gross negligence after the fact.

Our firm is working on a police chase metro Atlanta case involving an officer who has been in two separate high speed pursuit cases resulting in two deaths. We have learned in this case that another officer in the same department has also been involved in two other accidents that have resulted in four deaths. Thus, between these two officers within the same police department there have been 4 high speed pursuit cases we know of involving six deaths. Is the public being protected when police officers engage in these high speed police chases? We think not.

An officer cannot fire his service revolver into a crowded mall in order to stop a shoplifter. Most people understand that it would be too dangerous for an officer to fire his weapon in a crowded mall to apprehend a suspect for such a minor offense. In short, the danger to the public would far outweigh the need to apprehend the suspect. And yet, in a police pursuit context, the police are firing their proverbial guns (engaging in chases) on crowded streets, sometimes in residential areas, sometimes at night and sometimes under circumstances where there are many innocent motorists on the road, and yet, even in those cases where the need to apprehend the suspect is far outweighed by the danger to the public, the chase proceeds. The question is why these practices continue to occur year after year in this country with no meaningful decrease in the carnage on the roads.

Regrettably, it appears that the deaths and injuries which do occur in these cases simply have not affected the right people. When the injured are the family of politicians, perhaps there will be a change in the law. If the next police chase victimizes a prominent politician’s family perhaps there will be an understanding of the dangers of these high speed pursuits. Until such time, the public will continue to be “entertained” by television shows depicting the excitement and adrenalin that one feels when viewing a high speed pursuit. We can assure the public that such adrenalin and excitement would not be felt if their loved one was killed as a result of a pursuit involving a minor offense such as shoplifting. Indeed, as of the writing of this blog, we are reviewing a case where a shoplifter was fleeing from a police officer and during that pursuit, two adults and a child were killed and another adult seriously injured. Was the price worth it? Again, we think not.

Our serious injury attorneys frequently see cases in which insurance companies refuse to pay valid claims and then turn on their insureds accusing them of fraud.

Last Tuesday, the Western Missouri Court of Appeals upheld a jury verdict of nearly $8.5 million against State Farm Mutual Automobile Insurance Company for breach of contract claims and malicious prosecution against a claim holder. The case originated in 1997 when Jennie Hampton reported that her vehicle had been stolen and filed a claim with her insurer, State Farm. Several days later, the car was found abandoned and burned.

State Farm allegedly investigated the claim and denied it on the grounds that Hampton had listed her engine as being in excellent condition when State Farm contended that the car had suffered an engine failure. The Company further alleged that Hampton and an acquaintance towed the car after the engine failure and burned the vehicle. State Farm took their claims to the district attorney’s office and allegedly pressured prosecutors there to file insurance fraud criminal charges against Hampton and the acquaintance.

The consumer group, Public Citizen filed a lawsuit in the U.S. District Court for the District of Columbia, asking the court to force the Food and Drug Administration to act upon a petition the consumer group filed with the agency 16 months ago. According to the lawsuit, despite long-standing evidence that fluoroquinolone antibiotics can cause tendon ruptures, the FDA has failed to increase its warnings to patients and physicians about the dangers of the medicines.
The FDA failed to respond to the Public Citizen asked the agency to put a “black box” warning on fluoroquinolone antibiotics (such as Cipro, Levaquin and others) to make doctors and patients more aware of the risk of serious tendon injury before tendons actually rupture. The petition also urged the FDA to send a warning letter to physicians, as well as require an FDA-approved medication guide to be dispensed when prescriptions are filled. According to the lawsuit, the FDA is violating the Administrative Procedure Act by not acting upon the petition.
From November 1997 through December 2005, the FDA received 262 reports of tendon ruptures, mainly of the Achilles tendon, 258 cases of tendinitis and 274 cases of other tendon disorders in patients using fluoroquinolone antibiotics. An additional 74 tendon ruptures have subsequently been reported to the FDA for a total of 336. Because only a small fraction of cases are typically reported to the FDA, the actual number of ruptures and other tendon injuries attributable to the antibiotic is much higher.

In a study published yesterday in the New England Journal of Medicine, the authors concluded that in nearly one-third of cases of sudden cardiac arrest occurring in hospitals, the staff takes too long to respond, greatly increasing the risk of brain damage and death. The authors research indicates that these delays contribute to thousands of deaths a year in the United States alone.

The study was based on the records of 6,789 patients at 369 different hospitals whose hearts suffered from conditions that could be reversed by the use of an electronic defibrillator.

Experts say that the defibrillator shock should be administered to the patient within two minutes after the heart stops beating. But, the study found that it took longer in 30% of the cases. The results of the delays were striking. When the defibrillator was delayed, only 22.2% of patients survive long enough to be discharged from the hospital as opposed to 39.3% when the shock was administered properly.

A few months ago there was a large amount of news coverage regarding the death of a woman from eating contaminated oysters at an Atlanta restaurant. Now, the Georgia Department of Agriculture is alerting consumers that norovirus has been found in some raw oysters harvested in Louisiana. Georgia Agriculture Commissioner Irvin announced that raw oysters harvested from the West Karako Bay Section of Growing Area 3 in Louisiana from Dec. 3 through Dec. 21 may possibly be contaminated with norovirus. Inspectors are looking for these oysters in Georgia retail and wholesale facilities.

The FDA has received reports of norovirus infection in seven people who ate raw oysters on Dec. 13 at a restaurant in Chattanooga, Tenn. The Tennessee Department of Health’s test results from two of the ill patients were positive for norovirus. The FDA confirmed the presence of norovirus in shell oysters harvested from the West Karako Bay section of Growing Area 3 and served at the Tenn. restaurant.

The Louisiana Department of Health and Hospitals closed the affected growing area on Dec. 21. The FDA is working with the states involved to determine if any additional actions may be necessary to ensure public health protection.

The Food and Drug Administration has issued a warning about fentanyl pain patches. The fentanyl skin patch contains fentanyl, a potent narcotic. The skin patch was approved by FDA in 1990 for use in patients with persistent, moderate-to-severe pain who have become opioid tolerant – meaning that they have been using another strong opioid narcotic pain medicine around-the-clock, and have been using the medicine regularly for a week or longer. The skin patch is most commonly prescribed for patients with cancer.

The FDA has continued to receive reports of deaths and life-threatening side effects after doctors have inappropriately prescribed the patch or patients have incorrectly used it.

In addition, the agency is asking manufacturers of all fentanyl patches to update their product information and to develop a medication guide for patients.

Drug manufacturer Genentech has been involved in a dispute with physicians over the use of its drug Avastin. Ophthalmologists became concerned last October when Genentech announced it was changing the distribution channels for Avastin, which would make it much more difficult for patients to receive the drug. Doctors accused the company of making the change to force the use of its more expensive drug, Lucentis.

Lucentis is approved to treat macular degeneration, a condition that causes blindness and is encountered frequently in elderly patients. It costs approximately $2,000 per injection. Most patients require monthly injections.

Many ophthalmologists have been Avastin, which is approved only to treat cancer, but works in the same way as Lucentis. Compounding pharmacies divide a vial of Avastin into small portions for use in the eye. In small doses, Avastin costs between $20 to $100 per injection.

As serious injury attorneys we frequently see cases in which insurance companies refuse to pay for treatment for their insureds, knowing that any appeal by the insured will take months, if not years, and that there is no legal remedy which can force the companies to offer timely treatment. In fact, in many cases the only legal remedy is that the company will be required to pay what they already owe, with no allowance for attorney fees and expenses. Unfortunately, in many cases the remedy comes too late.

An article was just published describing how a 17-year old died just hours after her health insurance company reversed its decision not to pay for a liver transplant that doctors said the girl needed. Nataline Sarkisyan died last Thursday night at University of California, Los Angeles Medical Center. Nataline had been battling leukemia and received a bone marrow transplant from her brother. She developed a complication, however, that caused her liver to fail.

Doctors at UCLA determined she needed a transplant. They sent a letter to CIGNA Healthcare on Dec. 11. requesting approval for the procedure. Cigna denied payment for the transplant. Last Thursday, about 150 teenagers and nurses protested outside a California CIGNA office. The company then reversed its decision and said it would approve the transplant. But, it was too late.

Companies that produce dangerous products suffered a major defaet last week in the United States House of Representaatives. By a vote of 407 to 0, the House of Representatives passed legislation reauthorizing the Consumer Product Safety Commission (CPSC) and included statutory language specifically prohibiting the CPSC from issuing any rule or regulation that expands the scope of federal preemption of state law.

During the Bush administration, the CPSC has issued rules and regualtions which it argues preempt state laws governing dangerous products, thereby depriving innocent parties injured by these products from seeking redress in the courts. Obviously, based upon the vote, both Democratric and Republican lawmakers in the House recognized the dangers of this practice.

Seeking to end this unfair practice, the House Energy and Commerce Committee included specific language in the Committee Report, which is the official statement of congressional intent. The Committee Report language formally and specifically disapproves the CPSC’s effort to override state common law by including preemption language in preambles to its proposed rules and final rules. Specifically with regard to preemption language in the preamble to a recently issued rule on mattress flammability, the Report states “this preamble should not be accorded deference by State or Federal Courts.”