Reno Personal Injury Lawyer

Illinois Cap on Medical Malpractice Damages Unconstitutional

Steve Klearman — Thu, 04 Feb 2010 16:35:57 GMT

Since 2004, Nevada statute has limited jury awards in medical malpractice actions to $350,000 for noneconomic damages, such as pain and suffering.

Illinois has a similar statute, which limits noneconomic damages to $500,000 for doctors and $1 million for hospitals.

Today, the Illinois Supreme Court ruled that the Illinois statute limiting damages was unconstitutional. As the Chicago Tribune notes, the Court struck down the under the Illinois Constitution because it "violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts."

While the parties arguing for upholding the statute cited the several states which have enacted medical malpractice damage caps, the Illinois Supreme Court refused to uphold the statute based on the status quo. According to the Court's opinion, "That 'everybody is doing it," is hardly a litmus test for the constitutionality of the statute."

Originally posted at InjuryBoard by Steve Klearman

Commercial Drivers Prohibited from Texting While Driving

Steve Klearman — Thu, 04 Feb 2010 16:34:38 GMT

In further attempts to combat the dangers of distracted driving, The U.S. Dept. of Transportation has prohibited commercial drivers from texting while driving.

Commercial drivers include drivers of interstate buses and trucks over 10,000 pounds. Drivers who violate the ban may be subject to civil or criminal penalties of up to $2,750.

The USDOT press release cited the dangers of texting while driving as the motivation for the ban:

Federal Motor Carrier Safety Administration (FMCSA) research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers. Because of the safety risks associated with the use of electronic devices while driving, FMCSA is also working on additional regulatory measures that will be announced in the coming months.

Originally posted at InjuryBoard by Steve Klearman

Cell Phone and Texting Bans Increasing by State

Steve Klearman — Tue, 02 Feb 2010 16:59:00 GMT

As of February 2010, according to the Governor's Highway Safety Association, many states prohibit or limit the use of cell phones while driving.

The GHSA reports the state laws currently in effect:

Handheld Cell Phone Bans for All Drivers: 6 states (California, Connecticut, New Jersey, New York, Oregon and Washington), the District of Columbia and the Virgin Islands prohibit all drivers from talking on handheld cell phones while driving.
- With the exception of Washington State, these laws are all primary enforcement—an officer may ticket a driver for using a handheld cell phone while driving without any other traffic offense taking place.
All Cell Phone Bans: No state completely bans all types of cell phone use (handheld and hands-free) for all drivers, but many prohibit cell phone use by certain segments of the population.
- Novice Drivers: 21 states and the District of Columbia ban all cell use by novice drivers.
- School Bus Drivers: In 17 states and the District of Columbia, school bus drivers are prohibited from all cell phone use when passengers are present.
Text Messaging: 19 states, the District of Columbia and Guam now ban text messaging for all drivers. Fifteen states, D.C., and Guam have primary enforcement. In the other four states, all driver texting bans are secondarily enforced. Some states have limited texting bans.
- Novice Drivers: 9 states prohibit text messaging by novice drivers.
- School Bus Drivers: 1 state restricts school bus drivers from texting while driving.

Nevada, however, is one of six states that has preemption laws that prohibit local jurisdictions from enacting cell phone and/or texting while driving bans.

For more info, visit the GHSA

Originally posted at InjuryBoard by Steve Klearman

FocusDriven to Raise Awareness of Distracted Driving

Steve Klearman — Tue, 02 Feb 2010 16:59:00 GMT

The National Safety Council and the U.S. Dept. of Transportation announced a new, non-profit advocacy group, FocusDriven. The advocacy group's mission is to "Support victims of cell phone distracted driving and families of victims, and increase public awareness of the dangers of cell phone distracted driving by putting a human face on the disastrous impact of this behavior, in order to promote corresponding public policies, programs and personal responsibility."

A U.S. Dept. of Transportation news release states that "FocusDriven is a direct outgrowth of the September 2009 national Distracted Driving Summit in Washington, DC called by Secretary LaHood. Since the two-day meeting that brought together affected families, law enforcement, researchers, public officials and others, family members of distracted driving victims have worked to establish an advocacy organization with support from the Department of Transportation and the National Safety Council (NSC), a nonprofit organization that uses leadership, research, education and advocacy to prevent injuries and save lives. FocusDriven's new website, www.focusdriven.org, hosts information on distracted driving, help for victims and family members, and ways to get involved."

For more info on the new group and its vision, visit FocusDriven.org.

Originally posted at InjuryBoard by Steve Klearman

Affidavit Requirement in Med Mal Cases Applies to Professional Medical Corporations and Nurses

Steve Klearman — Tue, 26 Jan 2010 17:42:49 GMT

Nevada statute NRS 41A.071 requires that a complaint for medical malpractice be accompanied by an affidavit prepared by a medical expert: "If an action for medical malpractice or dental malpractice is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice.

Without such an affidavit, the claim is void ab initio and fails.

In Fierle v. Perez, 125 Nev. Adv. Op. No. 54 (November 19, 2009), the Nevada Supreme Court held that NRS 41A.071's requirement applies to medical malpractice actions filed against a defendant professional medical corporation, as opposed to a defendant physician.

The Court also held that NRS 41A.071 applies to professional negligence actions against providers of health care, including nurses and nurse practitioners.

The Complaint contained claims for res ipsa loquitor, which are an exception to the requirements of 41A.071 and which do not require an affidavit to survive. The Court held that those claims survived.

The Court then tackled the issue of whether the Plaintiff's amended complaint, containing an affidavit, could relate back to the original complaint and therefore cure the original complaint's defect. The Nevada Supreme Court had previously held that when a complaint is void ab initio for lack of affidavit, it cannot be cured by an amended complaint. However, the Plaintiffs here argued that the surviving claims saved the entire complaint from dismissal, such that the defective claims could be cured by an amended complaint. The Court rejected this argument, holding that "an amended complaint may not relate back to a complaint that lacked a required medical expert affidavit, but contained some claims that do not require a medical affidavit, thereby making the entire complaint valid."

Originally posted at InjuryBoard by Steve Klearman

Nevada Supreme Court Addresses Pharmacy Liability to Third Parties

Steve Klearman — Tue, 26 Jan 2010 15:53:25 GMT

In Sanchez v. Wal-Mart Stores, 125 Nev. Adv. Op. No. 60 (December 24, 2009), the Nevada Supreme Court examined the scope of a pharmacy's duty of care.

In June 2004, Gregory Sanchez, Jr., stopped on the side of the road to fix a flat tire and was assisted by a co-worker, Robert Martinez. The two men were hit by a vehicle driven by Patricia Copening, who was subsequently arrested for driving under the influence of controlled substances. Sanchez was killed and Martinez seriously injured as a result of the collision.

One year prior to the collision, in June 2003, the Prescription Controlled Substance Abuse Prevention Task Force ("Task Force") sent a letter to all of the pharmacies and physicians that had dispensed narcotics to Copening or had written prescriptions for Copening. The letter warned that "from May 2002 to May 2003, Copening had obtained approximately 4,500 hydrocodone pills at 13 different pharmacies."

The court was faced with two issues:

1) Whether, in Nevada, pharmacies owe a duty of care to unidentified third parties injured by a pharmacy customer or whether public policy creates a duty of care for pharmacies, which when breached, supports a common-law negligence claim.

2) Whether Nevada's pharmacy statutes and regulations create a statutory duty to support a negligence per se claim against the pharmacies.

Duty of care under common-law negligence claim

The Court held that pharmacies do not have a duty to act to prevent a pharmacy customer from injuring an unidentified third party.

The Court rejected the assertion that pharmacies have a special relationship with a third party. The Court noted that the pharmacy has no direct relationship with a third party injured by a pharmacy customer, and third parties such as Martinez and Sanchez are unidentifiable members of the general public. Accordingly, the pharmacies' dispensing of narcotics to Copening did not create a legal duty to Martinez and Sanchez.

Negligence Per Se Claim

The Court held that NRS 453.1545(1) does not create a duty to third parties upon which a negligence per se claim could be based. NRS 453.1545(1) calls for a program that tracks prescriptions that are filled by pharmacies.

Negligence per se claims are based on breaches of statutory duties. Negligence per se arises when an injured party is in the class of persons whom the statute is intended to protect and the injury is of the type against which the statute is intended to protect.

Here, the negligence per se claim failed because "the duty owed under these statutes or regulations is to the person for whom the prescription was written, the pharmacy's customer, if anyone, and not for the general public's protection."

Originally posted at InjuryBoard by Steve Klearman

Toyota and Lexus floor mats causing unintended acceleration

Steve Klearman — Tue, 24 Nov 2009 16:54:25 GMT

On September 29, the National Highway Traffic Safety Administration alerted consumers about Toyota and Lexus vehicles experiencing unintended acceleration due to the accelerator becoming stuck.

According to the NHTSA press release, floor mats in certain Toyota and Lexus models have caused the accelerator pedal to catch, causing rapid acceleration after releasing the pedal.

Toyota began mailing letters to owners of potentially affected vehicles. For the time being, NHTSA and Toyota urge vehicle owners to take out any removable floor mats. The mats should not be replaced with any other mat.

Toyota and Lexus vehicles affected by this consumer alert are:

2007-2010 Camry

2005-2010 Avalon

2004-2009 Prius

2005-2010 Tacoma

2007-2010 Tundra

2007-2010 ES 350

2006-2010 IS 250 and IS350

Kurt Niland, of Beasley Allen Legal News offers more information on the recall and Toyota's remedial measures:

The recall is the largest ever for Toyota and the fifth largest recall of a consumer product in the United States.

Toyota formally notified the NHTSA of the recall in a letter on October 5. Owners of the recalled vehicles, which include eight Toyota models manufactured in the last six years, are being notified by first-class mail in a mailing that was sent out on Friday, October 30th.

This first mailing will alert owners to the potential dangers posed by the floor mats but will not announce a fix. When Toyota decides on a solution, it will contact owners about the availability of a free remedy in a second mailing.

Some early reports indicated that rather than focusing on the floor mats, Toyota was researching on-vehicle countermeasures such as a "smart pedal" that would tell the vehicle to ignore the gas pedal if the brakes were applied simultaneously. Such a measure, which is standard in most German-made vehicles and Chryslers, would enable drivers to regain control of their vehicles easily and instantly despite the cause of unintended acceleration.

However, retrofitting 3.8 million vehicles with smart pedal technology would be extremely costly. A modification to the pedal in the affected vehicles would cost as much as $440 million, according to a Tokyo Shimbun report cited by Reuters.

A recall involving redesigned floor mats, on the other hand, would cost about $100 million. New reports say that the latest Toyota recall will indeed be a floor mat fix of some kind.

Toyota's largest recall comes during its toughest financial time. The company expects to lose $4.7 billion for the year ending March 31 -- its second consecutive annual loss. The economic downturn and a poor exchange rate are obvious culprits, but according to Toyota President Akio Toyoda, the troubles run even deeper.

"Toyota has become too big and distant from its customers," President Akio Toyoda, he told journalists in Tokyo last month. "We are grasping for salvation," he added, after apologizing for an accident that occurred in San Diego last August, which investigators say was caused when a floor mat jammed the accelerator pedal in a Lexus ES 350. The horrific accident claimed the lives of a California Highway Patrol officer and three of his family members, finally prompting the massive recall.

Originally posted at InjuryBoard by Steve Klearman

FDA Announces Safe Use Initiative

Steve Klearman — Wed, 18 Nov 2009 10:00:00 GMT

On November 4, 2009, the FDA introduced its "Safe Use Initiative," an effort to collaborate with the health care field to reduce the preventable harm resulting from medication use and misuse.

The Initiative is in response to the millions of consumers who are harmed each year because of the misuse of medications. The inappropriate use of medications can be a result of several factors, including (1) incomplete access to information, (2) unintentional misuse of medications, medication abuse, and attempts by people to harm themselves with medications, or (3) taking prescription drugs prescribed for other people.

Taking prescription drugs prescribed for other people is a serious abuse, as even one single dose of certain medications, such as opioid drugs, can cause severe harm or death to the person not prescribed the medication.

Through the Initiative, the FDA will work alongside health care professionals to identify drugs that are linked to preventable harm. The FDA intends to collaborate with health care professionals to (1) evaluate consumer medication information, (2) communicate about the risk of inadvertent overexposure to acetaminophen, (3) apply safeguards against surgery fires caused by alcohol-based surgical preparations, and (4) avoid contamination of multiple-use medication vials.

Originally posted at InjuryBoard by Steve Klearman

Exposing Myths About Medical Malpractice

Steve Klearman — Tue, 17 Nov 2009 11:15:58 GMT

The American Association for Justice, in its efforts to promote health care reform, has attacked health care reform opponents' arguments that reform will be a heavy financial burden on the health care system.

“All the facts and evidence show that tort law changes will do practically nothing to lower costs or cover the uninsured,” said AAJ President Anthony Tarricone. “It’s no wonder the tort reformers, insurance lobby, and other corporate front groups have to gin up lies and phony stats, since no legitimate data or research supports their claims. Our focus should be on reducing the 98,000 deaths by medical error that occurs every year, not limiting patients’ legal rights.”

The American Association for Justice takes a look at the misconceptions behind the most common positions of health care reform opponents in its Five Myths About Medical Negligence:

Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits. Only one in eight people injured by medical negligence ever file suit. Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket. A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

Myth #3: Doctors are fleeing.

Fact: Then where are they going? According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth. Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims. A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

Myth #5: Tort reform will lower insurance rates.

Fact: Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

For Five Myths About Medical Negligence in its entirety, click here

Originally posted at InjuryBoard by Steve Klearman

Beware of Unapproved H1N1 Products

Steve Klearman — Tue, 17 Nov 2009 10:53:53 GMT

The FDA urges caution when searching for H1N1 products on the internet because many unapproved H1N1 products purport to prevent, diagnose, or treat H1N1.

The FDA warns consumers of the potential danger of these products and cautions consumers that they should use only FDA approved products from licensed pharmacies. The potential dangers of using unapproved FDA products include an "increased risk of suffering life-threatening adverse events such as side effects from inappropriately using prescription medications, dangerous drug interactions, contaminated drugs, and impure or unknown ingredients found in unapproved drugs."

Currently, Tamiflu and Relenza are the only two FDA-approved antiviral drugs to treat H1N1.

With unapproved products, you can't be sure what you're getting. For example, the FDA, in monitoring the web for unapproved products, ordered a shipment of what was purported online to be Tamiflu. The FDA received an an unmarked envelope postmarked from India. The envelope contained "unlabeled, white tablets taped between two pieces of paper." The tablets were analyzed, and it was determined that they contained talc and acetaminophen (fever reducer and pain reliever). The tablets did not contain oseltamivir, the active ingredient of Tamiflu.

Among the products that the FDA has targeted:

a shampoo said to protect against the H1N1 flu virus
a dietary supplement said to protect infants and young children from contracting the virus
a "new" supplement said to cure H1N1 flu infection within four to eight hours
a spray that claims to leave a layer of ionic silver on one's hands that kills the flu virus
several diagnostic tests that have not been approved to detect the H1N1 flu virus
an electronic instrument whose sellers claim uses "photobiotic energy" and "deeply penetrating mega-frequency life-force energy waves" to strengthen the immune system and prevent symptoms associated with H1N1 viral infection

For more info from the FDA, click here

Originally posted at InjuryBoard by Steve Klearman