Cook County Personal Injury Lawyer

Hip Replacement Patients Taking Costs On The Chin

Jordan Margolis — Sun, 15 Jan 2012 17:13:55 GMT

New York Times journalist Barry Meier has recently written a series of articles alerting our nation's patients and consumers to the startling statistics on failing hip replacement devices. The NY Times informs on the "high cost of failing artificial hips" in that these devices have produced "the most widespread medical implant failure in decades — involving thousands of all-metal artificial hips that need to be replaced prematurely." These articles stem from recent years' recalls of metal on metal artificial joint replacements.

On July 22, 2008, the FDA announced a voluntary recall of the Zimmer Durom® Acetabular Component ("Durom Cup")
On August 24, 2010, the FDA there was a voluntary recall of the DePuy ASR™ total hip system.

Read more about the FDA's Recalls Specific to Metal-on-Metal Hip Implant Systems here.

Read our analysis of the study published in the Journal of Bone and Joint Surgery at our Justice Alerts Blog:

http://www.themargolisfirm.com/blog/

Originally posted at InjuryBoard by Jordan Margolis

Safety Regulations Need Tightening, Not Loosening

Jordan Margolis — Thu, 03 Nov 2011 10:34:46 GMT

Many of us likely remember last year’s tragic death of 29 miners in the Upper Big Branch mine in West Virginia. The deaths occurred following an explosion in the mine, which investigators now believe was cause by a buildup of coal dust and the failure of water-sprayers to douse sparks from machinery. That particular mine was owned by Massey Energy and the safety director at the mine was just recently convicted of lying to federal investigators and destroying records on hazardous conditions.

The Upper Big Branch mining accident is a particularly egregious example of how safety regulations failed to protect the 29 workers who died. In the year before the explosion in April of 2010, the mine was cited by safety inspectors 515 times and ordered to shut down operations 52 times. Yet all too often, those safety violations were allowed to go unaddressed and in that sense, the Upper Big Branch mining accident is evidence that stronger enforcement is also needed.

These issues—lack of safety regulations and lack of adequate enforcement—are issues that show up not only in mining, but across a wide range of industries where employees are working in dangerous positions. Throughout history, big industries have often been resistant to newer and stronger safety requirements, trying to protect their bottom lines and claiming that such regulation will stunt growth and job creation. These arguments have only gotten more forceful in the last few years with the economic recession. Our politicians are necessarily pushing for job creation and economic growth and in doing so seem to be on the side of big industry when it comes to worker safety. Many political leaders have tried to characterize safety requirements as an obstacle on the way of meeting these goals, and there has recently been a Republican clamor for deregulation

Setting aside for a moment the labor rights movement and the importance of workers rights, it is long past time to stop seeing worker safety requirements as the enemy and start seeing it as not only good for workers but good for business. Just like routine and preventative medical care is better than rushed emergency room visits for an individual, so too is industry “wellness” better than crisis response and management. While there are many moral and legal arguments to be made for safety requirements in multiple industries, if it is the bottom line profit that big business and Republican candidates care about most, then worker safety is a way to get there. In the long run, having safe working conditions and preventing accidents is far cheaper than the alternative.

Originally posted at InjuryBoard by Jordan Margolis

"If you are unable to afford an attorney, one will be NOT appointed for you"

Jordan Margolis — Mon, 05 Sep 2011 23:23:45 GMT

On June 20, 2011, the United States Supreme Court came down with a narrow decision on a constitutional rights issue that has produced dire results for many low-income Americans tangled in the civil justice system. Turner v. Rogers, et al. holds that poor or indigent individuals do not have an automatic right to free legal representation in a civil case where incarceration time is possible. This decision stands in contrast to Gideon v. Wainwright [wherein the USSC held that an indigent defendant in a criminal trial has a fundamental right to counsel pursuant to the 14th Amendment] and to United States v. Dixon [wherein the USSC held that the 6th Amendment grants an indigent criminal defendant the right to counsel.]

Turner v. Rogers, et al. involved an indigent South Carolina father with a large child support arrearage who was held in "willful" contempt of court for failure to make his monthly payments. Mr. Turner served a 6 month prison sentence followed by an additional 12 month sentence. The USSC held that:

The Fourteenth Amendment’s Due Process Clause does not automatically require the State to provide counsel at civil contempt proceedings to an indigent parent, even if that parent faces incarceration.

Supreme Court cases have yet to provide clear precedent on whether free legal representation should be provided to indigent defendants in a civil matter. The Turner Court acknowledged that this important legal issue remains a grey area, but failed to seize the opportunity that only these 9 justices could have taken to make the civil justice system more fundamentally fair for all citizens. Instead, the Supreme Court kept an extremely narrow focus on the question of "do poor or indigent defendants have a right to counsel in civil cases?" by limiting its decision to only "highly complex" civil contempt child support proceedings.

Fortunately for Turner, and other noncustodial parents like Turner, the USSC found that his 12 month prison sentence did violate the 14th Amendment's Due Process Clause because he was not afforded the basic procedural safeguards owed to him in civil contempt cases.

The Turner case brings up a fundamental constitutional question that people have been asking for years. The Official LawInfo Blog, LawInfo.com, gets right to the point: "Why do civil litigants NOT deserve to have an attorney appointed for them so long as the hearings are “Fundamentally Fair?”'

This blog's message echoes a certain nonprofit legal advocacy organization's mission, The Public Justice Center (PJC). PJC "seeks to enforce and expand the rights of people who suffer injustice because of their poverty or discrimination." There's no grey area from PJC's perspective; the organization lays the reality of our civil justice system out for us in black and white:

"The guarantee of counsel – bedrock of the American criminal justice system – is conspicuously absent from the nation’s civil justice system. In civil cases, people of limited means have no such right – not even when a home is threatened or a child is taken away; not even when the complexity of the matter guarantees an unfair result; and not even when the other side has counsel."

Many people think that the saying "if you can't afford an attorney, one will be appointed for you" is applied universally across both the criminal and civil justice systems, but it is not. PJC and many other organizations and individuals are dedicated to seeking the recognition of a poor/indigent person's constitutional right to receive legal representation when one's personal liberty is at stake. Please visit http://www.publicjustice.org/our-work/index.cfm?pageid=88 if you are interested in reading more about such an initiative.

Originally posted at InjuryBoard by Jordan Margolis

Protect Yourself From Identity Theft

Jordan Margolis — Wed, 22 Jun 2011 11:06:29 GMT

Some 200,000 Citigroup customer’s personal information was compromised recently when a team of sophisticated thieves cracked the bank’s system of personal financial data. The hackers captured names, account numbers, email addresses and transaction histories until they were detected in early May.

This isn’t an isolated case of its kind. In April, Sony’s PlayStation Network suffered an outage that affected more than70 million accounts due to a hack to its system.

Identity theft has ranked first among complaints to the Federal Trade Commission (FTC) for 11 consecutive years, with 1.34 million in 2010, reports the New York Times.

Dealing with identity theft can be a tedious and frustrating process but there are several ways you can protect your privacy and prevent it from happening to you. While many of these tips may seem like common sense, you would be surprised how many people skip these steps while dealing with the busyness of their day to day functions.

Identity Theft Prevention Tips

One man’s trash is another man’s treasure. Many would-be identity thieves go through trash to find the information they need to steal your identity. Get into the habit of shredding all old bills, bank and credit card statements and any and all important financial documents.

Many people tend to toss their statements to the side, but it is crucial to look them over regularly to ensure there is no suspicious activity or purchases.

Keep all numbers private – that includes your social security number, credit card numbers and bank account numbers. Don’t give these numbers over the phone unless you are certain you know who you are speaking with. And don’t write them down on envelopes or papers you keep in your wallet or laying around.

It goes without saying that you need to guard your personal information online as well. Don’t give your social security number out unless you are sure it is a secure site. Don’t click on any links that require you to give personal information – on a Web site or in an email. There are several ways these scams can infiltrate your computer thereby stealing your personal information. If PayPal or your bank, for instance, has an important message for you or requires action on your part, you will see a message when you log into your account. Or you will likely receive an email advising you to login to your account. Use anti-spyware and anti-virus software to help keep your computer system safe.

Lastly, federal law entitles you to receive a free yearly credit report from the three main credit bureaus – Equifax, Experian and TransUnion - get a copy from www.annualcreditreport.com.

For more information about identity theft visit the FTC Web site.

Originally posted at InjuryBoard by Jordan Margolis

Heart Surgery Patients Left in the Dark Due to Patented Conflicts of Interest

Jordan Margolis — Sat, 28 May 2011 20:31:47 GMT

Patients with leaky heart values and other life-threatening medical conditions put their lives and trust in their doctors' hands when they are wheeled into the surgery room. They already know the risks, they've already read the fine print and signed on the dotted lines of the obligatory hospital forms, and they've already given their informed consent... or have they?

The Chicago Tribune recently ran a series of alarming articles about a specific medical device which was the subject of a study on new annuloplasty rings. Myxo ETlogix, invented by Northwestern's "world-class" heart surgeon, Dr. Patrick McCarthy, was implanted into Northwestern Memorial Hospital's patients' hearts before it was FDA approved... by Dr. McCarthy himself. Tribune reporters Deborah L. Shelton and Jason Grotto have opened Chicago patients and their families eyes to a potentially life-threatening wrongdoing on the part of Chicago's doctors, one of its leading hospitals, and a major medical device company called Edwards Lifesciences.

Tribune reporters introduced us to Antonitsa Vlahoulis of Niles, Illinois. She, among 700+ other patients, learned the full truth about the medical device permanently stitched into her heart a little too late. After she was released from the hospital from receiving leaky heart valve surgery, she received a warranty card in the mail regarding the device her surgeon chose to implant. It was his creation: McCarthy Annuplasty Ring (now Myxo ETlogix). This product wasn't one of the options Dr. McCarthy had discussed giving her pre-surgery and, more shockingly, it wasn't on the FDA's list of approved devices. In fact, when Vlahoulis received the implant, it was still being studied. She did not give her informed consent to receive the "experimental" product, and a few years later, suffered permanent injuries due to the device.

We also read Maureen Obermeier's story from the Chicago Tribune article series covering this story. She received a Myxo ETlogix during her 2006 heart surgery, and only learned she had the device implanted in her when her doctor forwarded her information about it from a cardiology journal.

"As inventor of the ring," Obermeier said, "McCarthy had a financial and professional conflict of interest that gave him incentives to select it over others."

McCarthy reported in a the Tribune's interview that he was unaware his device had yet to be approved by the FDA when he was implanting them into patients' hearts. The Tribune reported that McCarthy, who does about 150 valve surgeries a year, said that at the time of the controversy, "he had no knowledge of the rules governing medical devices and that he relies on industry and the FDA to ensure the ones he uses are safe and effective." In short, he said: "There are no guideposts for us. You don't learn about this stuff in med school." Dr. McCarthy did admit to the Tribune that he had stopped telling patients some of the heart rings he uses were his inventions because most didn't seem interested in such details.

So who's the main culprit here? The doctors and hospitals who rely on the manufacturer's word regarding the products they are purchasing being FDA approved? Or the manufacturers themselves? Perhaps both. California-based Edwards Lifesciences did not submit McCarthy's heart rings to the FDA for review before McCarthy was given the green light. The company argued (incorrectly) that it wasn't required to do so, reports the Tribune. While the FDA investigation found that Edwards Lifesciences should have sought clearance before allowing surgeons to use the heart devices, it didn't take action against the company due to its "good faith effort to follow the law."

Lest us not forget the procedure that's involved in implanting these controversial devices: patients' "chests are opened, their hearts are stopped and the life-sustaining device is stitched into the valve while a heart-lung bypass machine keeps them alive." These patients can't exactly bring in their warranty card after the fact and request a refund or exchange.

So who should we as consumers of products like these trust? The FDA who does seemingly non-thorough investigations of such important, life-saving devices? The manufacturer itself whose "driven to help patients and develop innovative technologies that save and enhance lives" and just happens to make billions in the industry doing so? Or should we trust the doctors who receive royalty checks from their own patented creations that they choose over other devices to implant in their patients? The surgeon who co-authored the study of Myxo ETlogix, Dr. Rajamannan, believed the device was experimental at the time the surgeries took place. However, in January 2009, Northwestern hospital's president and CEO, Dean Harrison, sent a letter to Vlahoulis and other patients who had received the Myxo ring stating that "we do not consider this device to be experimental," reports the Tribune.

The Tribune reporters who covered this cautionary tale tell us that "soon, medical device companies may be required to disclose more information about payments they make to doctors. The Physician Payments Sunshine Act was passed last year, and Congress, the FDA and the industry are wrangling over how to implement it." Hopefully other actions will be taken from those in power who can make a difference in the medical community. At the end of the day, it's not about blame-shifting and pointing fingers, it's about righting a wrong and making the medical industry safer for patients.

Originally posted at InjuryBoard by Jordan Margolis

United States Supreme Court Rules in Favor of Corporations over Individual Consumers

Jordan Margolis — Sat, 07 May 2011 16:48:06 GMT

On April 27, 2011, the United States Supreme Court unleveled the playing field between big business and individuals by circumventing the class action mechanism consumers and employees use to fight for justice. AT&T Mobility LLC v. Concepcion, 2011 WL 1561956, holds that the Federal Arbitration Act (FAA) preempts a California state law which says that class action bans in mandatory arbitration clauses are unconscionable. The U.S. Supreme Court majority ruled that this state law requiring the availability of class action arbitration interferes with the“fundamental attributes of arbitration” and creates a scheme inconsistent with the Federal Arbitration Act.

Now, you may be wondering what this case was all about:

Liza and Vincent Concepcion sued AT&T in 2006, alleging that the wireless carrier defrauded millions of customers in California by advertising phones as “free,” then tacking on an undisclosed $30 charge for the phone.
If multiplied across all AT&T customers, the $30 charge would amount to millions of dollars in allegedly wrongful gains.
AT&T sought to dismiss the case by invoking a forced arbitration clause containing a class-action ban that it had placed in the Concepcion’s contract.
Both the California District Court and the Ninth Circuit rejected AT&T’s request, holding that the class-action ban was unconscionable under California law because it would exculpate the company from accountability for wrongdoing.

INTERESTING TO NOTE THAT:

Courts applying the contract law of 20 states have struck down class-action bans for the same reason – because they would function as a “get out of jail free” card for corporate wrongdoing.

What does this landmark decision mean for American businesses? Dewey & LeBoeuf LLP tells us: "Companies may now use contract provisions with California consumers that prohibit consumers from pursuing class arbitration of contract disputes. Thus, companies that do business in California should be aware that inserting a class action waiver into an arbitration clause in consumer contracts is now a viable option."

But what this decision really means is that American consumers and employees have been left with less recourse to hold corporations accountable for their widespread wrongdoings. The class action mechanism evolved in American jurisprudence to ensure than a defendant who engages in illegal activity (be it fraud, discrimination, physical harm, etc.) on a nominal, individual level must compensate all plaintiffs (in the aggregate) for their injuries.

American Associate for Justice President Gibson Vancecomments that this latest US S. Ct. decision:

"...leaves Americans with practically no recourse to challenge corporate wrongdoing and gives corporations a blueprint to draft forced arbitration clauses to avoid accountability for a wide range of unfair or illegal practices."

Courtney L. Davenport of the AAJ writes that "the dissent—written by Justice Stephen Breyer and joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—took issue with the majority’s finding that individual arbitration is a fundamental attribute of arbitration, saying that class arbitration is a long-recognized procedure for seeking redress for injury and is necessary to protect individuals with small-dollar claims that wouldn’t be cost-efficient to bring alone."

The Supreme Court has effectively done big business' bidding for them, and at American consumers' expense. By preventing individuals to band together to gain equal power in court or in abritration, corporate America is free to protect their deep pockets with fine print contracts of adhesion and force unassuming individuals to forgo their basic right to sue.

Jordan Margolis, The Margolis Firm PC

www.themargolisfirm.com When An Accident Changes Your Life, We Pursue Justice For You

Originally posted at InjuryBoard by Jordan Margolis

A New and Improved Way to Burden Victims Instead of Those at Fault: NY Public Health Law 2999-h[1]

Jordan Margolis — Wed, 27 Apr 2011 13:09:39 GMT

New York's Governor, Andrew M. Cuomo, has taken revenge on opponents of his mission to enact caps on non-economic damages in medical malpractice cases. Gov. Cuomo successfully garnered legislators' support to enact a new statute- Public Health Law §2999-h[1]- which provides for a state-sponsored fund to pay the medical expenses of those New York infant-victims of medical malpratice who suffer from severe neurological damage. Here's how this all began:

In January 2011, Gov. Cuomo created the Medicaid Redesign Team (MRT) in an effort to reduce the cost of New York's Medicaid program and "achieve measurable improvement in health outcomes . . . and a more efficient administrative structure." (See Gov. Cuomo's 1/5/11 State of the State Address.) Unfortunately, but not so surprisingly, this team is solely comprised of hospital and insurance representatives. No patient advocates, representatives of malpractice victims, or bar associations were included in MRT's taskforce. MRT endorsed Gov. Cuomo's Neurologically Impaired Infant Medical Indemnity Fund, an in doing so, enacted regressive legislation that mandates victims of catastrophic injuries apply for their life-long medical aid on a yearly basis, through beaurocrats instead of the court system, effectively stripping those most in need of their basic rights to fair compensation. This fund is set to go into effect on October 1, 2011.

Joel Stashenko of the New York Law Journal informs us that MRT's proposal to impose a cap of $250,000 on non-economic damages for any victim of medical malpractice was denied (before the budget was adopted on March 29) by the NY Assembly thanks to opponents such as the New York State Bar Association.

In his op-ed, Stashenko also offers us information straight from the horse's mouth. Jason Helgerson, Gov. Cuomo's chief Medicaid reform adviser, has been said to describe the Infanct Medical Malpractice Fund as "the best of both worlds" by providing medical costs on an annual basis to injured children, "while their parents or guardians can pursue medical malpractice actions on the basis of emotional distress and other losses." Helgerson expects that between 150 and 200 babies will qualify annually for the new fund. Explaining the "need" for this new fund, Helgerson touts that "courts tend to err on the side of victims when calculating medical costs 10 or more years down the road, in part because better and more expensive medical treatments regularly become more available."

The flaws in Cuomo and MRT's public policy, right-winged theories behind the fund are rampant, as are the flaws in how the fund will actually be administered. Stashenko explains:

"Medical care will be decided on a case-by-case basis. In the event the fund is reduced to 20 percent or less of its annual size, the law contains a default stipulation allowing suits to be brought for medical expenses.

The services of some health-care professionals, such as home health aides, are to be paid according to the prevailing Medicaid rate, which opponents said would prohibit many patients from getting the top-notch treatment they deserve.

The newly created entity that will emerge from the combination of the state insurance and banking departments . . . will be responsible for administering the fund."

Public scrutiny and litigation on specific regulations is much anticipated and much deserved. This piece of special legislation serves to protect hospitals and doctors who made mistakes, rather than protecting the victims--innocent babies who were catastrophically injured when brought into this world, and will be suffering from their doctors' mistakes for the rest of their lives. Now these babies and their families will be forced to fight a second battle. Instead of receiving a jury verdict or an out-of-court settlement, these victims will have to navigate an inconsistent Medicaid style system at the mercy of bureacrats who will provide their treatment options. Jeff Adams of the Adams Law Firm PC of New York has said it well: "A family that suffers devastating loss due to medical negligence should be permitted to make their own treatment decisions. They should not be victimized twice." See http://www.injurylaw-ny.com/Caps-and-Gov-Cuomo-Truth-and-Fallacy.shtml

Blair Horner, the legislative director of New York Public Interest Research Group (NYPIRG), admonishes that MRT's "approach is the wrong course to minimizing medical errors. He contended that strengthening the state's standards-of-care for obstetrical and birthing practices would go a longer way to reducing costly hospital errors." Likewise, Thomas A. Moore, a New York Law Journal columnist, wrote in his 4/5/11 column:

"The fund will deny some deserving children health care at the highest quality and force their parents or guardians to wrestle bureaucrats for coverage for some procedures."

"The new law makes 'vague and non-substantive' demands on health-care providers to improve the quality of care while burdening malpractice victims and their families."

"The Medicaid task force opted to advocate a bill that impairs the rights of children victimized by negligent obstetric care rather than one that would have prevented children from becoming damaged and would have achieved greater savings."

The damages victims of catastrophic brain injuries suffer are not intangibles. They are not non-economic pain and suffering. Making the victims bear the brunt of their doctors, nurses, and/or hospitals' mistakes is fundamentally unfair and should not be tolerated.

Jeff Adams urges us to join the opposition and fight the good fight. For more information on what you can do to help those most in need receive fair compensation for their tragic injuries, click here.

Originally posted at InjuryBoard by Jordan Margolis

Safety First: How Dedicated Are Chicagoland Hospitals to Intercepting Preventable Injuries?

Jordan Margolis — Mon, 04 Apr 2011 12:51:39 GMT

Healthgrades Seventh Annual Patient Safety In American Hospitals Study of March 2010 provided us with an updated report on patient safety incidence rates among Medicare patients at nearly all 5,000 nonfederal hospitals across the nation. The 2010 study examined trends in important patient saftey issues, provided state specific incidence rates, identified "best-performing hospitals to establish a benchmark against which other hospitals can be evaluated" and more. This leading independent healthcare ratings organization can only provide as current and accurate of information about preventable patient injuries to the public as our nation's hospitals are willing to provide. Unfortunately, hospitals have a history of "hiding behind legal barriers of their own making", rather than touting a full-disclosure policy on reporting patient safety incidence information.

It's about time for hospitals to start publicly sharing updated information and error report data on preventable injuries that occur within their walls. In doing so, other hospitals, clinics, and individual physicians can help prevent the preventable and save more lives. The general public deserves better, as do the individual patients who put their trust, and their lives, into healthcare professionals' hands.

According to Chicagobusiness.com, on March 18, the Cook County medical examiner's office ruled that the death of James Tyree, a prominent Chicago figure as chairman and CEO of Mesirow Financial Holdings Inc., was an accident. This "mishap" involved an air embolism in Tyree's dialysis catheter which, many of us do not know, is a preventable occurrence. According to healthcare consultant Michael M. Millenson of the Chicago Tribune, many of us also don't know the statistics regarding how likely it is for an average-Joe like ourselves to get injured once admitted to a Chicagoland hospital. This is because few deaths due to preventable medical mistakes make the news. Tyree's did because he was a public Chicago figure whose family allowed the release of the Medical Examiner's results.

Millenson proffers that "if national figures apply to our area, at least 10 people die from preventable medical mistakes in local hospitals every day and another 100 are injured." This reporter uncovered information on preventing medical mistakes in our community at whynotthebest.org. This website is sponsored by Commonwealth Fund, an entity dedicated to "motivate and enable hospitals to improve care". Here's an overview of what Millenson discovered:

"All eight hospitals (Lutheran General, the academic medical centers of Loyola, Northwestern, Rush, the U. of C. and the University of Illinois, and Stroger, Cook County's public hospital) reported data for three serious safety problems that were part of a 'bundle' of standardized safety measures — decubitous ulcers (bedsores), infections due to medical care (particularly catheters and IV lines) and post-operative sepsis, a serious bacterial infection. The latter two complications are often life-threatening."
"Loyola's rate of bedsores was almost nine times the state average, the only hospital of the eight ranked 'significantly worse' in that category."
"Loyola, the U. of Chicago and the U. of Illinois all were reported to be 'significantly worse' on the rate of infections caused by medical care."

Healthgrades' 7th Annual Student reported other alarming statistics on patient safety concerns:

The Institute for Healthcare Improvement estimated 40,000 instances of medical harm occur in the healthcare delivery system daily.
Patient safety events have costed the federal Medicare program nearly $8.9 billion and resulted in 96,402 potentially preventable deaths from 2006-2008.
From 2006 through 2008, 88,180 Medicare in-hospital patients who experienced one or more patient safety events died.
Of the 99,180 actual in-hospital deaths, 97.19% or 96,402 could have potentially been avoided.

Healthcare consultant Michael Millenson explains why patient-safety-incident public reporting is so critical:

"It shows whether a hospital's managers and clinicians are working together to reduce or eliminate serious safety problems. The best efforts of caring and hardworking individuals won't be successful unless systematic error prevention is built into traditional care delivery processes as part of a genuine culture change. High-tech medicine poses inherent risks, but given a government study that nearly one-third of hospitalized Medicare patients suffer some sort of adverse event, a hospital that doesn't have its act together on safety can be downright dangerous."

Healthcare providers and hospitals need to have a serious death reduction discussion, with a focus on better medicine and patient safety procedures. The focus has too often been placed on red herrings such as "the need" for tort reform, and reducing medical malpractice lawsuits and victims' recovery awards. Millenson speaks the truth when he writes: "Most patients don't want to sue. They only want fair compensation, compassion and the knowledge that someone else won't be harmed again in the same way." Let's hit the refresh button on this discussion. Common complaints by hospitals highlight "inaccurately coded Medicare claims" and faulty reporting results due to outdated information, says Millenson. This is precisely why the need is so great for hospitals' comeplete transparency in reporting annual safety events.

This shouldn't be about cutting quarters, defensive doctoring, and blaming medical malpractice lawyers. The need for publicly reported incidents and safety reports stems from the goal of preventing, not covering up, additional injuries, infections, and conditions patients develop during their hospital visits.

HealthGrades' 2010 report says it best:

"Avoiding mistakes by chance is no longer acceptable. When patients enter the health care system, they entrust their health and their lives to their caregivers. The health care system must continue to put systematic safe practices in place to ensure that the system create to save them doesn't unintentionally harm them"

"There's an important distinction between great doctoring and great safety" says Millenson, and he's right. It's time for Chicago and nationwide hospitals to come to terms with this reality.

Originally posted at InjuryBoard by Jordan Margolis

Introducing... H.R. 862! Because US Supreme Court Justices Should Be Following The Rules Too, Right?

Jordan Margolis — Mon, 07 Mar 2011 17:34:26 GMT

On March 1, 2011, Rep. Chris Murphy, D-Conn. and Rep. Anthony Weiner, D-N.Y., introduced in the House of Representatives, H.R. 862, a new bill which aims to set recusal rules for US Supreme Court Justices, so as to compel the Highest Court to adhere to the same ethical code as do federal judges. Section 2 of this measure, entitled "Code of Conduct", proposes the following:

Apply "the Code of Conduct for United States Judges adopted by the Judicial Conference of the United States . . . to the justices of the United States Supreme Court to the same extent as such Code applies to circuit and district judges."
"The Judicial Conference shall establish procedures . . . under which (1) complaints alleging that a justice of the Supreme Court has violated the Code of Conduct . . . may be filed . . . by the Conference; (2) such complaints are reviewed and investigated by the Conferences; and (3) further action, where appropriate, is taken by the Conference."

H.R. 862's Section 3, entitled "Recusal of Justices", gets to the meat of the bill by requiring "the justices to publicly disclose the reasoning behind any recusal from hearing a case, as well as the reason for refusing to recuse after a motion is made for them to do so. It would also establish a process for reviewing decisions by justices who have refused to step aside from a case," says Kimberly Atkins of Lawyers USA.

Atkins informs that this bill was introduced in response to "recent reports of Justices Antonin Scalia and Clarence Thomas attending private events hosted by energy magnates and hefty political donors Charles and David Koch. The lawmakers assert that Koch Industries benefited from the Court’s ruling in Citizens United v. FEC, which relaxed campaign finance limits on corporations."

Citizens United v. FEC, a highly publicized and politicized USSC decision (which came down in January 2010), held that "political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections."

Possible conflicts of interest surround Justice Thomas in particular when it comes to his wife, Virginia Thomas, and her increasingly "outspoken political activism." Last month, Eric Lichtblau of the New York Times reported that Ms. Thomas, a lobbyist, political consultant, and self-appointed “ambassador to the Tea Party movement", is stirring up controversy with her aggressive involvement in propogating a conservative political agenda on issues regarding health care, campaign finance, and a limited goverment.

The question remains: has Ms. Thomas' husband really remained neutral in his role as a United States Supreme Court Justice on these "hot topic" issues? Lest we not forget that Justice Thomas failed to report on his Supreme Court financial disclosure forms his wife's $686,589 in "noninvestment income" that she received from the conservative think tank Heritage Foundation between 2003 and 2007.

Recently, Rep. Weiner and several dozens of house Democrats wrote to Justice Thomas requesting his recusal from any future deliberations on the constitutionality of the new health care law, as Ms. Thomas' lobbyist efforts create "the appearance of a conflict of interest." The full text of this letter can be read here. Felicia Sonmez of the Washington Post opines that this letter is "the latest indication that the court battle over health-care law's constitutionality--which is expected to be ultimately decided by the Supreme Court--has already become a political tit-for-tat."

Perhaps H.R. 862 has arrived just in time to ensure that everyone, including the members of our Highest Court, follows the rules of their trade.

Originally posted at InjuryBoard by Jordan Margolis

US Supreme Court Narrows Preemption Defenses In Automobile Product Liability Litigation

Jordan Margolis — Fri, 04 Mar 2011 15:28:11 GMT

Defective products defense attorneys may have one less weapon in their arsenal to combat products liability litigation after last week's United Statements Supreme Court decision in Williamson v. Mazda Motor of America (No. 08-1314).

On February 23, 2010, the USSC reversed a California decision that found in favor of Mazda's preemption defense against a state tort lawsuit regarding a products liability claim. The plaintiffs, the Williamson family and Thanh Williamson's estate, brought a products liability lawsuit after Thanh Williamson died in a car accident because the rear aisle seat of the Mazda minivan in which she was sitting had only a lap seat belt, rather than the more customary lap-and-shoulder belt. The California trial court dismissed the Williamson's claim on the pleadings, holding that federal vehicle safety regulations conflicted with their state tort claim, and therefore preempted it. The California Court of Appeal affirmed the decision, despite the Williamson's contention that their state claim not only does not conflict with federal regulations, but that it furthers federal objections of car safety.

Manufacturer liability will certainly be affected by the USSC's decision to curb the extention of preempting state-law claims in favor of minimum standards set by federal regulations. The California Court of Appeals relied heavily on a 2000 decision involving implied preemption, Geier v. American Honda Motor Co. In Geier, the USSC found that the 1984 version of Federal Motor Vehicle Safety Standard (FMVSS) 208 preempted a state tort suit against a car manufacturer on a failure to install airbags. However, in Williamson, the USSC held that the most current version of FMVSS, which requires the installation of lap-and-shoulder belts on all seats positioned next to doors or frames, but allows manufacturers to decide for themselves whether to install those belts or only lap belts on rear aisle seats, does not preempt state common-law tort claims resulting from the failure to install lap-and-shoulder seatbelts.

For a legal tune up on the Supremacy Clause and preemption principles, see Hines v. Davidowitz, 312 U.S. 52, 67 (explaing that "under ordinary conflict pre-emption principles, a state law that stands as an obstacle to the accomplishment of a federal law is preempted).

In Geier, the contested state law did "stand as an obstacle to the accomplishment" of an airbag federal regulatory objective: to provide manufacturers the choice among several kinds of passive restraint systems. Surveying the regulation's history, the USSC found that the Department of Transportation (DOT) had a long-standing objective to give car manufacturers their freedom of choice in terms of airbag installment.

However, the USSC made it clear last week that airbag installation and seatbelt design choice are mutually exclusive. The USSC unanimously held that Geier's implied preemption argument was inapplicable to the instant case because car manufacturers' seatbelt-design choice "was not, in and of itself, a significant objection of the federal regulation in question," as it was for airbag federal regulations at issue in Geier, says James Black of SCOTUSblog. Unlike the choice between installing active passenger restraints (seatbelts) versus passive seat restraints (airbags) discussed in Geier, FMVSS 208's decision "not to mandate a more elaborate restraint system was motivated primarily by cost, and . . . an agency’s cost-effectiveness judgment was not, by itself, preemptive, since the statute specified that the agency could only enact minimum standards," explains Black in his analysis of the Williamson opinion.

The Court concluded its opinon that state tort lawsuits "may restrict the manufacturer's choice" but any such resstriction "did not rise to the level of a preemptive 'obstacle to the accomplishment of" FMVSS's national objectives.

The Williamson decision will hopefully preserve the once-threatened legal platform in state court for future victims of car accidents to seek the justice they deserve for manufacturers' "choices" in seatbelt design.

Originally posted at InjuryBoard by Jordan Margolis