Pharmacy Errors Common, While Major Chains Dominate Safety Panels

A USA TODAY examination shows employees of major drugstore chains or supermarket pharmacies accounted for nearly one in four of the 295 pharmacists on the panels assigned to oversee prescription drug safety for the American public this year. Also see their special report focusing on how the pharmacies' emphasis on speed and high volume leads to medication errors.

New Year's Near Top of List for Fatalities

Holidays are supposedly the most hazardous time for drivers, due to sharp increases in traveling and drunken driving. According to research by the Insurance Institute for Highway Safety, which examined accident data in the United States from 1986 to 2002, the day of the year with the most fatalities from accidents is the Fourth of July, with an average of 161. Not far behind are July 3 (149) and Dec. 23 (145). New Year’s Day is fourth, with 142.

Happy New Year.

Receiver Appointed for Marathon Nursing Homes

Connecticut Attorney General Richard Blumenthal has received appointment of a receiver for six Marathon Healthcare Center nursing homes, potentially impacting more than 500 nursing home residents at Marathon homes in New Haven, Norwalk, Prospect, Torrington, Waterbury and West Haven. Read more.

Check Your Car Floor Mats Every Time You Get In

Two years after a truck in Warwick, RI flew down a hill and through the wall of a living room after a shifting floor mat caused the driver to lose control as he tried to back out of a parking spot, a floor mat is being blamed for causing a driver to crash into people at a Chanukah celebration in Long Island. The problem is well known and widespread. Read more.

Reducing Preventable Errors Will Lower Malpractice Claims

USA Today's opinion blog editorializes that "Healthcare costs are out of control," but "that doesn't stop sensible physicians from shunning the sickest patients or ordering needless hospitalizations, drugs, tests, and invasive procedures." They contend "physicians practice 'defensive medicine' -- actions designed to protect themselves from lawsuits rather than serve patients' best interests" and that the cost of practicing defensive medicine costs the US "$60 million-plus, according to the Health and Human Services Department." USA Today argues that "change obviously is needed -- and aggressively resisted both by trial lawyers who profit from the system and by others who don't want to lose a deterrent to medical malpractice."

In response, Les Weisbrod, president of the American Association for Justice (AAJ), writes: "The field of medicine is filled with doctors devoted to improving lives and protecting patients. Trial attorneys also are passionately committed to these identical principles." In fact, "America's fair and open legal system helps injured people seek recourse, and leads to improved safety methods and standards." He argues that "98,000 people die every year from preventable medical errors," and that "by reducing medical errors, fewer people will be injured, leading to fewer malpractice claims." He also notes that a study conducted by Harvard's School of Public Health "found 97 percent of medical malpractice claims had merit, proving only those with real injuries seek any recourse." Weisbrod concludes, "If we want to reform healthcare, reducing the 98,000 preventable deaths is where progress is desperately needed." Meanwhile, the US "legal system provides justice for deserving, injured individuals while holding wrongdoers accountable."

Mixed Martial Arts Not Allowed in CT

Attorney General Richard Blumenthal has issued an opinion that Connecticut statutes do not allow Mixed Martial Arts fighting techniques, which allow fighters to hit opponents who are down, to use backhanded blows and to strike the part of the body that is over the kidneys.

Chapter 532a of the Conn. Gen. Statutes provides that the commissioner of the Department of Public Safety can regulate amateur and professional boxing that takes place at clubs, corporations and associations. An exception exists for college and university supervised boxing and sparring matches, if the DPS commissioner has found the athletic association is capable of ensuring the health and safety of participants. Otherwise, a “boxer” is defined as “a contestant in the sport or skill of fighting with the fist.” Connecticut boxing regulations disqualify boxers who hit an opponent who is down or who is rising from being down. Boxers are not permitted to strike the part of the body over the kidneys, use backhand or pivot blows, employ rabbit punches, hit with the butt or the inside of the hand, or wrestle someone who is on the ropes. Mixed Martial Arts fighting incorporates these forbidden techniques, and prize fighting is illegal in Connecticut. Unless the legislature passes special enabling legislation, Mixed Martial Arts events may not take place in Connecticut.

Plaintiff's Verdict Against Dentist for "Horse Teeth"

A jury in Bridgeport returned a verdict of more than $198,000 in favor of a woman who claimed her Stamford dentist promised her a "Hollywood celebrity" smile, but gave her what her attorney called "horse teeth." She went in for a permanent bridge to replace a false tooth, but woke up from the procedure to discover that the dentist had extracted three teeth and made a large bridge that allegedly resembled horse teeth. More.

Hospitals Still Not Safe Enough

Medical News Today reports that "Despite increased emphasis on patient safety, little progress has been made in making hospitals safer, says Johns Hopkins critical care specialist Peter Pronovost, M.D., Ph.D., in an article in the Dec. 24 issue of the Journal of the American Medical Association. He identifies physician autonomy and a lack of standardization of safety protocols as the culprits. . . . According to Pronovost, an average hospitalized adult will receive recommended therapy only 53 percent of the time. This accounts, in part, for the nearly 100,000 patients who die each year in the United States because of hospital error."

More Cribs Recalled

Newly recalled items include "about 3,000 Newport rubbed-black 4-in-1 cribs and 6,000 matching furniture pieces manufactured in Indonesia by Munire Furniture Inc. of Piscataway, N.J." The red paint under the black finish has high levels of lead, which is toxic if ingested by young children. The AP says the company has received one report of a child diagnosed with lead poisoning after ingesting the paint.

Interestingly, a Washington Post columnist noted that the Munire Furniture's website includes the following information: "You can have peace of mind that all Muniré products are coated with finishes that are in compliance with Federal Regulation 16CFR1303 for lead content and have been certified as such by Intertek, a testing laboratory recognized by both the American Society for Testing and Materials and the Consumer Products Safety Commission." Now, don't you feel better?

MERRY CHRISTMAS!

Merry Christmas and Happy New Year from the Law Firm of Stephen M. Reck.

NJ Court: Damages to Amputee Amounting to $8/Day "Grossly Insufficient and a Miscarriage of Justice"

Interesting decision from the New Jersey Superior Court, Appellate Division, which held that a medical negligence plaintiff was entitled to a new trial on compensatory damages after the damages awarded amounted to just $8 a day.

The case arose out of a claim that her doctors were negligent in treating her vascular disease, resulting in amputation of her leg. The jury awarded $800,000 for economic damages (ie medical bills, lost wages) but only $100,000 for pain and suffering. Plaintiff moved for an additur or a new trial on damages. In granting her request for a new trial on damages, the court observed:

"Here, after seven surgeries, plaintiff's leg was amputated above the knee. She experienced substantial pain and suffered permanent injury. Although she may learn to walk with a prosthesis, the evidence indicated she will ultimately be relegated to a wheelchair. As plaintiff has noted, the compensatory damages award, based upon plaintiff's life expectancy, amounts to $8.00 per day. We are convinced that the compensatory damages award is grossly insufficient and a miscarriage of justice. We are also persuaded that a recalculation of damages based upon the trial transcripts without having the opportunity to observe the witnesses would be a further miscarriage of justice. Accordingly, the matter is remanded for a new trial on the issue of compensatory damages."

Chamber to Obama: Protect Corporate Interests

Attorney Andrew Cohen on CBS Online: "Like the child who kills his parents and then begs for mercy because he is an orphan, the U.S. Chamber of Commerce now is begging President-elect Barack Obama to protect corporate interests in the nation's civil litigation system as a way of restoring jobs and bolstering an economy shattered largely (as we now know) by corporate greed and misfeasance." He notes that the president of the Chamber's legal arm wrote an open letter to Obama, stating "We understand the critical necessity of revitalizing the economy by restoring American jobs, encouraging the growth of U.S. businesses, and protecting the savings and investments of millions of Americans. However, we are concerned that the potential expansion of legal liability significantly impairs these much needed steps toward a national recovery." Cohen notes, "The Chamber has been pushing tirelessly for decades to rein in plaintiffs' attorneys (who look to punish corporate negligence or fraud with civil lawsuits), deregulate industry and commerce (we all know how well Wall Street did with its freedom), and nullify important consumer protection laws (like the one in Maine which is allowing smokers to go after tobacco companies for false advertising). The lobbying effort has been national and local, highly-public and super-secret, and devastatingly successful."

Beware of Diet Pills

CBS News reported last night that the FDA has listed more than 25 weight loss products as potentially harmful because they contain ingredients that are not labeled and could cause serious health problems. Of course, many of these products claim to be natural or contain herbal ingredients. CBS News says "The FDA warning comes after an analysis found that the 'undeclared active pharmaceutical ingredients' in some of the products contained a controlled substance, a drug not approved for marketing in the United States and a suspected cancer-causing agent." Isn't that great. FDA enforcement lawyer Michael Levy sums it up best: "if it sounds too good to be true, it is likely to be too good to be true."

Student Loses Slip & Fall

The Law Tribune reports that a student who claimed she fell down a stairway at the A.I. Prince Technical High School failed to prove that the defendant State of Connecticut had actual or constructive notice of water on the stairs, according to the court (Langenbach, J.T.R., Judicial District of Hartford). The plaintiff, Macklin, maintained that a leaky overhead pipe caused water to fall on the steps, but a maintenance supervisor testified that the pipes were insulated, and he never observed condensation or water on the steps, and received no reports about leaking. He also testified that if water had fallen from the overhead pipe, it would have accumulated in a different location, not where the plaintiff slipped and fell. Also, a teacher who witnessed the slip and fall did not see any dripping water, although he did see some liquid on the step. However, he testified that sometimes students eat in the nearby cafeteria and spill liquid on the steps, raising the possibility that there was something else on the floor, of which the defendant lacked notice.

More On Nursing Home Ratings

The Day reports on the new CMS 5-star rating system for nursing homes. Kathy Pajor, president and executive director of a New London home that got 4 stars, notes the online rating "is no substitute for a first-hand visit." She states: "The public needs to understand that this is only a snapshot of a two-week period,” and is concerned that the rating uses data that fails to distinguish between violations found based on paperwork, and those based on actual patient care. "My concern is that you can jump to conclusions about a building because it has one star or five stars,” she said. “You have to physically go and look. Notice if there are odors, how the residents look, are they neat and clean, does the staff seem happy. When you observe staff taking care of a resident, do they do it in a loving way?”

The National Senior Citizens Law Center made a similar point in press release last week, calling the five-star system "a beginning, not an end." The NSCL says better nursing homes today offer "resident-centered" care in which "the nursing home meets residents' individual needs." When looking for a nursing home, consumers should talk to the staff about how they will meet their loved one's needs, and existing residents and their family members should be asked for their opinions. "It may not always be true that (for example) a four-star nursing home is better than a two-star nursing home."

Take Politics Out of DOJ

USA Today says Obama should resist the trend of replacing the top prosecutors at the Dept. of Justice. Probably a good idea if they're doing a good job. Law enforcement shouldn't be "political."

Rhode Island AG Meets With Obama Transition Team

The Providence Journal reported that on Dec. 18, Attorney General Patrick C. Lynch became Rhode Island's first Democratic official to meet with President-elect Barack Obama's transition team in Washington, DC. Lynch, who is head of the National Association of Attorneys General, traveled to the capitol with several of his colleagues for a daylong meeting with the transition team at the Department of Justice. Lynch said he was looking forward to working with the new administration, and hopes the relationship leads to limits on federal preemption of state laws, a doctrine which was expanded under the Bush administration.

Happy Chanukah!

Happy Chanukah from the Law Firm of Stephen M. Reck.

Rhode Island Becomes First State to Get Global Medicaid Waiver

Rhode Island's governor announced yesterday that the state has finalized a "landmark" deal with federal regulators that may result in far-reaching changes to Medicaid coverage of nursing homes, prescription drugs, group homes for the disabled and transportation for the elderly.

"The agreement gives the state unprecedented authority to restructure Medicaid programs, which are now closely regulated by the federal government. In exchange, Rhode Island has agreed to limit Medicaid spending over the next five years to roughly $12.075 billion, which is about $375 million less than state negotiators had hoped." The governor believes the current cost of Medicaid programs is "simply unsustainable", and that the new deal will allow the state to better control costs while improving service to residents. Last year, Medicaid paid for services for 180,000 disabled, elderly and low-income state residents.

Medicaid consumes roughly 25% of the total state budget, about $1.8 billion in state and federal spending this year. Currently, the federal government pays about 52 cents of every dollar spent on Medicaid programs in Rhode Island. Critics of the new deal fear that if the state spends its five-year limit too soon, "it would be forced to slash programs or pay for them only with state funds." More.

Norwich Diocese Settles Another Sex Abuse Case

The Diocese of Norwich has settled a lawsuit filed by Mary Jane Leverone, who claimed the late Rev. Thomas Shea repeatedly sexually assaulted her at Our Lady of Lourdes Church in Gales Ferry, beginning when she was 10 years old. She is one of many women who alleged Shea kissed and fondled them as girls during his 37 years as a priest, many of which were spent in parishes in southeastern Connecticut, including New London, Norwich, Mystic, Groton, Gales Ferry, Montville and Plainfield, Leverone's attorney, James Hall, did not discuss the amount of the settlement. The Day reports that Leverone previously had offered to settle the suit for $1.2 million but the diocese's insurance would only pay $500,000; any amount above that would have come from the diocese directly.

Should Disney Be Liable for Pooh Bassinet Death?

The Chicago Tribune reports that "The family of a child who died this year in a Winnie the Pooh bassinet has sued the Walt Disney Co., alleging the company allowed sales of the bassinets despite a flawed design that had been linked to another baby's death a year earlier." The bassinet had a drop-down side for easy access, but the design created a gap where babies could slide through and hang to death. Only after a 6 month old baby died on Aug. 21 did the CPSC direct retailers to stop selling the bassinets, which were manufactured by Simplicity Inc. Disney's consumer products division licensed its Winnie the Pooh name and image to Simplicity, according to court records. The lawsuit "raises questions about a common practice in the nursery products industry: Are companies that license their names and characters to other manufacturers responsible when those products turn out to be deadly?"

Industry Fears New Nursing Home Rating System

Nursing home operators are worried about getting one or two stars under the new five-star rating system (five stars being the highest) for nursing homes. The Centers for Medicare and Medicaid Services has just introduced the system, which rates homes based on state inspections, staffing levels and quality measures, as well as overall quality, and already the industry is questioning the validity of the rankings. The system "is poorly planned, prematurely implemented and hamhandedly rolled out," said Larry Minnix, president and chief executive officer of the American Association of Homes and Services for the Aging. Federal officials insist the rankings will put nursing homes "on the path to improvement" because they know family members will think twice before putting someone in a one-star home.

To compare nursing homes in your area and check ratings, click here.

RI Federal Judge Announces Retirement

Senior U.S. District Judge Ernest C. Torres, who has presided over some of Rhode Island's highest-profile cases, including the tax evasion trial of Survivor winner Richard Hatch, has announced his retirement from the federal bench. Read more.

Doctors for Responsible Gun Ownership

Doctors for Responsible Gun Ownership (DRGO) is a project of the Claremont Institute launched in 1994. Its "mission is to expose the poor medical scholarship—and the anti-gun bias behind it—held out as truth by organized medicine and medical journals." This work includes the Claremont Institute-Criminologists amicus curiae brief they filed in the landmark U.S. Supreme Court case District of Columbia v. Heller. The brief sets forth the arguments and authorities supporting their position that under the handgun ban, D.C. had not been made safer, but instead had become even more dangerous; that the studies relied upon by the city are unreliable; that criminological data from the United States and other nations disproves the idea that “more guns equals more murder;” that national gun bans fail to reduce violence; and that any benefits offered by “gun control” can be accomplished by a permit or background check system.

Prescription Leaflets Often Lack Key Safety Info

Federal regulators say pharmacies too often fail to provide consumers with necessary drug-safety information in the leaflets stapled to their prescriptions, the quality of which vary greatly. Many leaflets don't specify standard doses or warn users they should stop taking medicines if side effects arise. At the same time, other leaflets were cluttered with extraneous information, such as vitamin promotions or nail-care tips, that distract patients from important information they needed. Read more.

CT & RI Get Funds From Mattel Lead Settlement

The Courant reports that "Toy maker Mattel Inc. will pay Connecticut and 38 other states $12 million in a settlement aimed at getting toys contaminated with lead out of the marketplace. The company also agreed to quickly adopt new federal standards that cut the amount of lead allowed in toys, and to help remove lead-tainted toys from stores." Connecticut's share will be $218,028 of the settlement, which grew out of various state investigations begun in 2007 of lead-tainted toys imported from China for Mattel and its subsidiary Fisher Price. Attorney General Blumenthal said at least half of that money will go to the state's general fund. The rest may go to the Department of Consumer Protection for enforcement and education.

Attorney General Patrick C. Lynch told the Providence Journal that Rhode Island’s share of the settlement will be $198,636, which will be allocated to the state’s general fund.

ACEP Ranks Rhode Island #2 for Emergency Medicine

The American College of Emergency Physicians (ACEP) has issued a new "report card" on emergency medicine, ranking Rhode Island second in the nation, tied with the District of Columbia for a “B-” grade overall. Massachusetts came in first, scoring a “B,” while the nation as a whole received a “C-.” The report card "paints a bleak picture of emergency medicine across the country, with conditions worsening as economic woes and a failing health care system drive more people to rely on emergency rooms for care."

According to ACEP, Rhode Island gets an “A” for quality and patient safety (as did Mass.), a “B+” for public health and injury prevention and for disaster preparedness, and a “B-” for access; but ACEP gives the state an “F” for the medical liability environment, based on Rhode Island's "resistance to tort reform." Dr. Gary Bubly, president of the Rhode Island Chapter of ACEP, while expressing pride in the No. 2 overall ranking, stated: “If the state does not enact medical liability reform, we may lose physicians to states with better environments, which will hurt access for our patients.”

The Rhode Island Association for Justice (RIAJ), however, disagrees, arguing that patient safety is actually enhanced when patients have the ability to sue for medical malpractice. The ACEP report actually backs this up, the RIAJ noted, as the 10 states with the “best liability environment” only scored “D+” on safety. Perhaps the threat of litigation helps to keep providers focused on safety and preventing mistakes.

Internist Cites Unfamiliarity With Patients, Not Lack of Sleep, as Cause of Mistakes

Internist Jay Resnick tells the NY Times that "Further shortening hospital doctors’ workweeks will only increase the mistakes patients endure. The all-too-frequent errors my patients encounter when hospitalized are almost always caused by doctors who don’t know them well enough, not by doctors who are too sleepy. . . . Every patient should have a doctor who is in charge throughout the entire hospital stay. Internet technology should make that resident available 24 hours a day, 365 days a year, through real-time audiovisual links . . . . Error rates would drop, the quality of care would improve and doctors in training could experience the emotional rewards of actually shepherding someone through an illness. And the length of the on-site workweek could be reduced."

Waterbury Verdict Leads to $63,000 Settlement in Rear-End Case

The Conn. Law Tribune reports that a plaintiff who suffered neck and lower back injuries in a rear-end collision prevailed at trial in Waterbury Superior Court, where a jury awarded $4,169 in medical damages, $19,000 for future medical treatment and $11,424 for future prescription medication, plus $32,752 in non-economic damages, for a total of $68,270. After post-verdict motions, the plaintiff agreed to a 50% reduction of the prescription award, for a $63,000 settlement.

Medication Warnings May Cause Side Effects to be Exaggerated

Research has shown that expecting to feel ill can bring illness on in some instances, particularly when stress is involved. The phenomenon is known as the “nocebo effect,” placebo’s "evil twin". Experts say it is not a psychiatric disorder: "it’s the way the mind works,” says Arthur Barsky, director of Psychiatric Research at Brigham and Women’s Hospital in Boston. Read more.

Providence Girl Dies After Crashing Through Glass Table

An 11-year-old Providence girl, identified as Christiana Sarty, has died after suffering "a severe puncture wound to her leg when she jumped on or fell into a glass coffee table in her home, the police announced today." She died at Hasbro Children's Hospital as a result of uncontrollable bleeding, according to the police.

Police said that Christiana was with her eight-year-old sister when the accident occurred. Their mother was not home at the time. The accident remains under investigation.

Prof. Argues OSHA is Unconstitutional

Cass Sunstein, the Felix Frankfurter Professor of Law, Harvard Law School, argues that OSHA is unconstitutional in an article published in the Virginia Law Review.

Poll Suggests Washington Trusts the U.S. Chamber

Legalnewsline reports that the U.S. Chamber of Commerce, a champion of tort reform, "is among the most trusted and powerful interest groups in Washington," according to a poll by Harris Interactive. The Chamber, led by President and CEO Thomas Donohue, was ranked as the fifth most powerful group. "Under Donohue's leadership, the Chamber opened its Institute for Legal Reform in 1998 to help curb frivolous lawsuits and counterbalance the influence of trial lawyers."

RI Chief Justice to Retire

Rhode Island Supreme Court Chief Justice Frank Williams, is retiring from the post he has held since 2001. Williams' retirement, effective Dec. 30, was announced yesterday. The 68-year-old said in his retirement letters that the Court has accomplished all the goals he set more than seven years ago, and cited family health issues as a reason for retirement. Talk of a replacement has already begun.

USA Today Looks at Air Quality Around Schools

USA Today used an EPA model to track the path of industrial pollution against their map of 128,000 schools around the country to determine air quality. The results are widespread. Check if your kids' school is on the list, here.

Child Restraint Recalls

The NHTSA has announced that Britax is recalling certain Frontier child restraint systems, Models E9L54E7 (Frontier Red Rock), E9L54H6 (Frontier Rushmore), E9L54H7 (Frontier Pink Sky), E9L54M6 (Frontier Canyon), and E9L5490 (Frontier Sahara), manufactured between April 1 and September 18, 2008. If the harness straps are loosened using one strap at a time, the harness straps may become detached from the metal yoke located on the back of the child seat. Should the harness straps become detached, the child will not be properly restrained, possibly resulting in an increased risk of injury in the event of a vehicle crash. Britax will mail the consumer notice and remedy kits to all registered owners free of charge. Owners that have not registered their seats with Britax must call Britax at 1-704-409-1700 and request a kit. The recall is expected to begin on or about January 7, 2009. Information and instructions related to the campaign will be posted on the Britax website at http://www.britaxusa.com no later than December 17, 2008. Owners with other questions can contact Britax at 1-704-409-1700.

Highway Deaths Down This Year

Officials from the National Highway Traffic Safety Administration say there were 31,110 auto fatalities in the first 10 months of this year, an almost 10 percent decline over the same period in 2007. If the trend continues for the last two months of the year, highway deaths would reach their lowest level since Lyndon Johnson was president. Article here. One wonders if the drop in deaths is attributable to high gas prices/less driving.

Overdose Deaths Linked to Non-Medical Use of Prescription Pain Meds

A study of unintentional overdose deaths indicates a majority are associated with "the nonmedical use and diversion of prescription drugs, especially pain relievers". Read more.

Foreign Manufacturers of Dangerous Products Benefit From Our Inability to Hold Them Accountable

Prof. Andrew Popper of American University, Washington College of Law, writes: "There is no mystery regarding the flood of dangerous and even deadly consumer products manufactured abroad and sold in the United States. Foreign manufacturers are not naïve. They understand the effect of state and federal laws that limit or eliminate tort liability, known, oddly enough, as tort reform. They understand the difficulty of securing a product liability judgment against a domestic wholesaler or manufacturer – and they understand that as foreign producers, they are not only shielded by tort reform but also protected by the complex web of laws, policies, and practices that make it difficult if not impossible to sue successfully foreign manufacturers in domestic courts. Stripped of the incentive value the tort system provided, it should come as no surprise that domestic consumers have been exposed to tens of millions of defective products produced by foreign suppliers." Read his white paper, Defective Foreign Products in the United States: Issues and Discussion.

Researcher Attempt to Quantify the Social Costs of Dangerous Products

New research suggests that dangerous products have the potential to create significant external economic costs in the billions of dollars, not including the pain and suffering that injured people endure. Get the report here.

W.A.T.C.H. 10 Worst Toys List Includes Some Familiar Names

Report here.

Actress, Scientist Team Up to Promote Vaccines

NPR notes that movie star Amanda Peet and Paul Offit, chief of infectious diseases at Children's Hospital of Philadelphia, have teamed up to reassure the public that childhood vaccines are safe and do not cause autism. Peet, who investigated vaccines when she was pregnant, says she was "bewildered and frustrated by 'the disparity between what I was hearing from other moms here in Hollywood and what I was hearing from the doctors.'" Offit hopes Peet's celebrity will lead more parents to investigate the facts about vaccine safety.

Almost 1 Million Children Die From Preventable Injuries

A new report from the World Health Organization finds nearly a million children worldwide die every year as a result of unintentional injuries. The biggest killer: traffic accidents, followed by drowning, fires and burns, falls, and poisoning. About 830,000 children under 18 die every year, and millions more children suffer preventable, disabling injuries. Read more.

Doctors Beholden to Drugmakers Resist Generics

An editorial in the NY Times notes that "Health care reformers have high hopes that the relentless rise in prescription drug costs can be slowed by replacing brand-name medicines with cheaper generic versions. Unfortunately, so many physicians are so captive of the drug industry that it would take a huge effort to persuade more patients and doctors to use generics." Read more.

Feel Better About High-Fructose Corn Syrup

Researchers who previously linked high-fructose corn syrup to obesity are now back-tracking. "It doesn't appear that when you consume high-fructose corn syrup, you have any different total effect on appetite than if you consume any other sugar," he says. Read more.

Expulsion Leads to Lawsuit

A federal lawsuit filed recently in U.S. District Court against Miss Porter's School in Farmington alleges that students in a "secret society" orchestrated a bullying campaign against student tatum Bass for her role in planning a multi-school prom. The "Oprichniki," as the group called itself according to the suit, took its name from the 16th-century Russian secret police force that brutally eliminated the czar's enemies. Read more.

HHS Finds Nursing Homes Failing Badly

The HHS Office of Inspector General has found that in each of the past three years, over 91% of nursing homes surveyed were cited for deficiencies, and a greater percentage of for-profit nursing homes were cited than not-for-profit and government nursing homes. The most common deficiency categories cited were quality of care, resident assessment, and quality of life. In 2007, 17% of nursing homes surveyed were cited for actual harm or immediate jeopardy deficiencies, and 3.6% were cited for substandard quality-of-care deficiencies.

In Connecticut, a whopping 98.7% of nursing homes were cited, up from 97.4% the previous year and 95.6% in 2005. In Rhode Island, 76.3% were cited for deficiencies, down from 86.8% in 2006. The average number of deficiencies per home in Connecticut increased from 8 in 2005 to 9 in 2007, while in Rhode Island the average per home was only 2.5 in 2007, down from 3.5 in 2006 and 4.9 in 2005.

Scan Results May Not Correlate to What's Causing Pain

"Scans — more sensitive and easily available than ever — are increasingly finding abnormalities that may not be the cause of the problem for which they are blamed. It’s an issue particularly for the millions of people who go to doctors’ offices in pain." Read more.

Bobcat Struck, Killed in RI

While at least 1,000 deer in Rhode Island are struck and killed by motor vehicles each year, occasionally some rarer wildlife are lost too. Last week a 17-lb. female bobcat was hit and killed in South Kingstown, just north of the Great Swamp Management Area. Read more.

Judge Gets Alcohol Ed Program

Superior Court Judge E. Curtissa R. Cofield, criticized for sideswiping a state police car while drunk and then calling a black state trooper "Negro Washington", was accepted into the state's alcohol-education program. If she successfully completes the program, charges of driving under the influence and failure to drive in the proper lane will be dismissed. Read more.

Railroad Suits Will Be Preempted

Beginning later this month, railroad companies will be immune from state tort lawsuits under a new "midnight regulation" adopted by the Transportation Safety Administration (TSA).

The new regulation, which takes effect Dec. 26th, is included in the final rule of the rail transportation security measure that the TSA published in the Nov. 26 Federal Register. "The rule is based on the premise, adopted by the Bush administration in numerous other regulations, that state tort lawsuits are impliedly pre-empted by federal law." The American Association for Justice, however, says Congress did not intend for state court claims against railroads to be preempted, and will seek to have Congress remove the pre-emption provision next year. Read more.

May Not Want to Wear Crocs on Escalators

"Several times a week people are injured on metro Atlanta escalators, reports to Georgia regulators show," leading some to argue that escalators are "inherently dangerous". They question the "blame recently heaped on Crocs-type shoes, which several children were wearing in highly publicized accidents across the country, including at Atlanta's airport."

“If escalators were designed properly and met all the standards, it wouldn’t matter that they were wearing Crocs,” said Scott Anderson, a Houston petroleum engineer who petitioned the U.S. Consumer Product Safety Commission in 1997 to require closing dangerous gaps along the sides of escalator stairs. In 1996 — long before Crocs were on the market — Anderson’s 4-year-old son lost three toes when his tennis shoe was sucked into an escalator."

The National Elevator Industry Inc., an escalator trade group, maintains escalators are "inherently safe and that injuries "are rare compared with the number of riders." Read more.

Greenwich Hospital May be "Product Seller"

A Bridgeport judge (Hiller, J.) denied Greenwich Hospital’s motion to strike a product-liability count, because a former patient might prove the hospital was in the business of selling medical products such as a helical basket that allegedly broke during surgery.

Plaintiff Mark Basso’s complaint alleged that a Bagley Helical Basket, which was manufactured by the defendant, Boston Scientific Corp., was used to remove part of his kidney stone, but the helical basket was defective and broke. Allegedly, the surgeon incised the plaintiff’s ureter. The plaintiff sued the hospital, alleging the helical basket was defective and unreasonably dangerous, and the hospital negligently and intentionally failed to preserve the remains of the helical basket.

In response, the hospital moved to strike product-liability counts on the grounds that hospitals are not “product sellers,” within the meaning of the Connecticut Product Liability Act, C.G.S. §52-572m(b). The statute provides, “A product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.” Product sellers include “any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products where the sale is for resale or for use or consumption.” The court concluded the plaintiff might prove the hospital was in the business of selling medical products such as the helical basket, and it denied the hospital’s motion to strike. The court also denied Basso's spoliation of evidence claim, in which he alleged that his spouse asked the hospital’s director of risk management to preserve the helical basket after the operation. Allegedly, the director agreed, but the hospital lost or failed to preserve the helical basket. The plaintiff sufficiently alleged the hospital knew the plaintiff might sue, and the hospital’s agent agreed to preserve the helical basket.

Summary Judgment Denied in West Haven Police Brutality Case

The U.S. District Court (Hall. J.) held genuine issues of material fact precluded summary judgment in civil rights/police brutality case.

The plaintiff, John Ries, alleged in his complaint that two West Haven officers tripped him, threw him to the ground, tasered him and jumped on his neck. In addition to the allegedly violent arrest, he claimed a violation of his constitutional rights and 42 U.S.C. §1983. The defendant officers moved for summary judgment, which the court denied, citing a genuine issue of fact.

In June 2004, Reis found a condom in the garbage and believed that his daughter, 14, might have had sexual intercourse with her boyfriend, who was 16. Reis first talked with his daughter, who cried, then visited the boyfriend to tell him to stay away from his daughter. The boyfriend told his mother, who then called the police, who went to Reis’s home and questioned him. Reis alleged that he asked the police if they were going to arrest him, and they responded no, at which point he said he was returning to bed. At that point, he alleges the officers tripped him, threw him on the ground, tasered him and jumped on his neck. The officers claimed that Reis abused them verbally, resisted arrest and failed to follow commands.

Sounds like a genuine issue of material fact to me.

West Haven Settles Police Dog Bite Case

The city of West Haven will pay nearly $400,000 to the family of Gary "Chris" Tyson, who was killed on Interstate 95 while running from police. "Officers used a police dog to track and bite Tyson after he was allegedly involved in a fist fight on Sept. 23, 2002. He hid in bushes along I-95, and was struck and killed by a truck while trying to run across the highway. " His autopsy showed he had 24 puncture wounds on his thigh and buttocks from multiple dog bites. Read more.

UCONN Hospital on Probation

The Conn. Department of Public Health again has placed the John Dempsey Hospital in Farmington on probation for two years. "It is the third time the health department has disciplined Dempsey, part of the University of Connecticut Health Center, in the past three years. As part of a Nov. 26 consent agreement, the hospital agreed to bring in a consultant to recommend improvements for areas including nursing services and staffing levels, infection control, pharmacy, the operating room, emergency department, psychiatric services and patient assessments." Read more.

CPSC Sued For Allowing Sales of Banned Toys

The Natural Resources Defense Council and Public Citizen "have gone to court to challenge the Consumer Product Safety Commission's (CPSC) decision to allow makers of children's products containing phthalates to continue selling those goods so long as they were made before a congressional ban takes effect Feb. 10," arguing that "the congressionally mandated ban should apply retroactively to inventory made before Feb. 10. But the CPSC says it shouldn't." Read more.

More Recalled Toys This Week

Ebay lists some toys recalled this week:


-JCPenny recalls Arizona Newborn and Infant Denim pants due to choking hazard;
-Groovy Fashions and Sassy Jammies doll clothing sets recalled by Manhattan Group due to violation of the Lead Paint Standard;
-OKK Trading recalls Army Figure toys due to violation of the Lead Paint Standard;
-Meijer Inc. recalls Toddler Girl's Hat and Mitten set due to choking hazard.

Yale Physician Favors Preemption of Drug Cases

Dr. Peter McAllister, a clinical instructor in the Department of Neurology at Yale University, writes in an op-ed piece in the Providence Journal, "Having chased so many physicians out of medicine, trial lawyers now have begun to limit the number of treatments available to patients by filing lawsuit after lawsuit against drug makers."

He charges that in "focusing on whether a drug's label goes far enough to warn patients of any possible risk, lawyers force the FDA to constantly reevaluate warning labels, distracting the agency from its core mission of approving safe and effective drugs." The case of Wyeth v. Levine now pending before the Supreme Court, "could have a profound impact on what medicines are available to my patients," McAllister argues, because, "if the Supreme Court rules for the trial lawyers, the court may limit access to pharmaceuticals in same way that excessive litigation has cut patient access to physicians."

McAllister says what's at stake is an "important way to curb the negative influence of trial lawyers on patient access to quality health care:" pre-emption. "A ruling in favor of pre-emption will strike a blow to the trial lawyers' who profit from litigation at the expense of patient access to health care."

$2.5 Million Award to Injured 72-Year-Old Pedestrian Reduced to $600,000 UIM Policy Limit

A Stamford judge (D'Andrea, J.T.R.) awarded non-economic damages of $2.5 million to a 72-year-old, Helen Powell, who had her leg amputated above the knee, after a driver crashed into her in a parking lot. The plaintiff also broke her clavicle, toe and hip. After the crash she was depressed and wished that she had died. She spent four months in the hospital and rehabilitation facilities, and later sold her multi-level condo where she lived for 30 years and moved into an apartment near a relative. The plaintiff remains depressed and has been diagnosed with post traumatic stress syndrome.

The plaintiff obtained the $20,000 maximum from the driver's insurance policy and sought to collect underinsured-motorist (UIM) benefits from her own insurance company, The Standard Fire Insurance Co. The court awarded $2.5 million in non-economic damages but since the insurer’s policy limit was only $600,000, the court reduced the award to $600,000. The court then subtracted the $20,000 received from the driver and awarded $580,000 in non-economic damages.

Court Denies Motion Dismiss Suit Against Lessee of Club Located in Mohegan Sun

A New Haven Superior Court judge concluded the court has subject-matter jurisdiction and denied a motion to dismiss the plaintiff’s suit alleging a customer assaulted him at a nightclub in the Mohegan Sun Casino. Frank Coppola sued Plan B LLC, the lessee of Ultra 88 Lounge, which is located in the casino, alleging that another customer who had been served alcohol at the nightclub assaulted him at about 1 a.m. on Aug. 27, 2006.

The defendants had moved to dismiss or, alternatively, to transfer venue, arguing that the Mohegan Gaming Dispute Court possessed exclusive jurisdiction. They relied on the Mohegan Torts Code, which provides that it applies to “any and all torts claims that may be brought against the MTGA and its employees, by patrons, invitees, guests and other persons who have a valid and legitimate reason to be on the Reservation or within the Mohegan tribe’s gaming, hotel, resort, or entertainment facilities.” The plaintiff, who did not file suit against the Mohegan Tribal Gaming Authority, objected. The court concluded that because the plaintiff did not file suit against the Mohegan Tribal Gaming Authority or its employees, the Connecticut Superior Court possessed subject-matter jurisdiction. The court also held there was no evidence the court’s decision might threaten the economic security, health or welfare of the tribe. The plaintiff resides in East Haven, Conn. and venue in the Judicial District of New Haven was correct.

$2.3 Million Settlement for Death of Greenwich College Student

The estate of Justin Brown, of Greenwich, received court approval for a $2.3 million settlement of its wrongful death claim arising out of an accident in which Brown was a passenger of Evan Kimia three years ago. The men were classmates at Greenwich High School and had just finished their first week of classes at Norwalk Community College when the accident occurred at 12:40 a.m. Sept. 2, in Greenwich.

The suit alleged Kimia, now 20, was drunk and speeding when he lost control on a tight curve near Lake Avenue. "His Volvo slammed into a tree, tearing off the passenger door and leaving a 200-foot trail of debris. Although wearing a seat belt, Brown suffered serious skull and face injuries and died as a result of the crash." Read more.

Contaminated Waste at Charlestown Site Exceeds All Prior Estimates

The amount of buried contaminated waste at the Kenyon Piece Landfill site in Charlestown, RI is "far greater than what was originally estimated when clean-up crews began excavating the site two months ago," according to a report by the EPA official overseeing the cleanup. Read more.

Young Doctors Too Tired for Safety

A new report finds doctors-in-training are still too exhausted and need more rest. This should be a no-brainer. The Institute of Medicine recommends that anyone working the maximum 30-hour shift should get an uninterrupted five-hour break for sleep after 16 hours. This recommendation follows regulations that capped the working hours of young doctors just five years ago, limiting them to about 80 hours a week. Experts agree that sleep deprivation is a serious problem "that can lead to serious medical mistakes." Read more.

U.S.-Made Toys Have Toxins Too

Healthy Toys, a Michigan nonprofit group, reports that 1/3 of the toys tested were found to have significant levels of toxic chemicals. "While products made in China were often found to have higher lead levels than those made elsewhere, a toy's "Made in the USA" status was no guarantee that it was lead-free." Read more.

Meanwhile, still concerned about what's in your kids' toys? Check out "dress up pirate" (above) and the many other all-natural products available at Papoose, all of which can be ordered through their site's on-line store.

Malpractice Insurance Premium Rates Stable

The Courant reports that doctors' malpractice premiums are likely to remain stable for 2009 — or even drop a bit — at a time when consumers are spending more for health insurance. "The Connecticut Insurance Department says it has not received any company proposals for higher malpractice rates in 2009, and some physicians may even see some premium decreases as a result of credits for being claim-free." Read more.

Feds Seek to Take Medically Unfit Commercial Drivers Off the Road

The AP reports that federal safety regulators have begun taking steps to get medically unfit truck drivers and bus operators off the road.

The Federal Motor Carrier Safety Administration will require states to merge commerical truck and bus drivers licenses and drivers' medical examination certificates into a single electronic record. Combining the two will allow states to check whether drivers have met medical requirements to operate commercial vehicles. A government study earlier this year found hundreds of thousands of drivers operating trucks and buses despite having qualified for medical disability payments.

Motorcycle Helmet Proposal Includes Preemption Language

NHTSA’s proposed rule on motorcycle helmets, while significantly increasing the safety requirements, includes language that could preempt state tort law claims related to motorcycle helmets. The preemption language in question would prohibit consumers from legally holding helmet manufacturers liable for helmets that meet the NHTSA’s minimum safety standard proposed by the new rule.

“On the one hand, the agency tries to strengthen the helmet safety standard for consumers, but then attempts to takes away consumers’ right to hold manufacturers accountable for the products they produce,” said AAJ President Les Weisbrod.

The NHTSA, in a report on motorcycle helmet effectiveness, acknowledged that technological changes over the years have led to improvements in helmet design and materials that have saved thousands of lives. The agency data showed the effectiveness of helmets increased from 29% in 1982 through 1987, to 37% between 1993 through 2002, saving 7,808 riders' lives. "Clearly technology made a difference in thousands of motorcycle riders’ lives, however, if NHTSA’s proposed rule continues with the preemption language, manufacturers of helmets have little incentive to continue to make helmets safer for consumers,” added Weisbrod. “The civil justice system provides an added incentive that NHTSA’s helmet proposal erodes.”

The motorcycle helmet rule is one of 21 proposed rules from the Bush administration with preemption that AAJ is monitoring. For a list of the rules AAJ is following, click here.

Bad Behavior Leads to Medical Mistakes

It is well established that surveys of hospital staff members "blame badly behaved doctors for low morale, stress and high turnover." Now, "recent studies suggest that such behavior contributes to medical mistakes, preventable complications and even death."

One survey of health care workers "found that 67 percent of respondents said they thought there was a link between disruptive behavior and medical mistakes, and 18 percent said they knew of a mistake that occurred because of an obnoxious doctor." Another "found that 40 percent of hospital staff members reported having been so intimidated by a doctor that they did not share their concerns about orders for medication that appeared to be incorrect. As a result, 7 percent said they contributed to a medication error." Dr. Peter B. Angood, chief patient safety officer at the Joint Commission, the nation's leading independent hospital accreditation agency, said that "a hostile environment erodes cooperation and a sense of commitment to high-quality care," which "increases the risk of medical errors." Read more.

Hospital Infection Suits Said To Be On the Rise

"A new type of med-mal lawsuit is on the increase -- claims based on hospital infections." The argument is that hospitals can no longer maintain that these infections are inevitable." Betsy McCaughy, founder and chair of the Committee to Reduce Infection Deaths, a non-profit patient safety organization, notes "Now that the evidence is overwhelming that nearly all infections are preventable, hospitals that don't follow the proven protocols are inviting lawsuits." Read more.

All Eyes on the Coming Midnight Regs

"The clock is ticking for lawyers specializing in consumer safety litigation as they wait to see what 'midnight regulations' the Bush administration squeaks through before leaving office in January," anticipated to "offer greater liability protection to manufacturers and less regulation."

The AAJ "is tracking 21 pending consumer safety regulations," and Gerie Voss, director of regulatory affairs for the AAJ, said that if they pass, "You will be looking at thousands of consumers who will be left with no recourse and manufacturers who have the ability to walk away with complete immunity." Of particular concern is the pre-emption language. On a regulation to strengthen vehicle roofs, "plaintiffs lawyers claim the roof strength standards are still too low, and that automakers that meet that rule will be granted complete immunity from all lawsuits." Also, an FDA regulation on updating warning labels regarding the use of prescription drugs during pregnancy and breast-feeding "includes a pre-emption clause, which the AAJ fears will offer drug makers blanket immunity and give injured women no recourse." Read more.

Docs May Stop Giving Vaccines

A new survey shows "about one in 10 doctors who vaccinate privately insured children are considering dropping that service largely because they are losing money when they do it. . . . A second survey revealed startling differences between what doctors pay for vaccines and what private health insurers reimburse: For example, one in 10 doctors lost money on one recommended infant vaccine, but others made almost $40 per dose on the same shot." Read more.

FDA To Ramp Up Food Inspections

The FDA reportedly "is stepping up efforts to convince the public and skeptical lawmakers that it is making progress in overhauling the nation's food defenses." The agency plans to release a report that "summarizes what officials call a 'hugely ambitious' campaign to reshape its food inspection arm to root out safety hazards through things like sophisticated software and certifiers from the private sector." The FDA "maintains that its overhaul is well under way," although Dr. Davis Acheson, associate commissioner for foods, acknowledged that the agency did not have enough money to put in place all its plans. Read more.

New Report on Elder Abuse in RI

Rhode Island women in their 50s are more likely than older females to be abused by spouses or other intimate partners. Women over 60 are most often victimized by their grown children and grandchildren.

In a groundbreaking study of domestic abuse of older women, the first statewide study ever in the U.S. to focus solely on this group, researchers have found that while Rhode Island police investigate hundreds of cases of domestic abuse reported each year, many of them never go through the court system and those who are prosecuted rarely get sentenced to prison. Read more.

Holiday Weekend Has More Accidents, Fewer Fatalities This Year

State police reported 421 accidents on the state’s highways during the extended holiday weekend from Wednesday to Sunday. Two people were killed, and 67 were injured.

There were more accidents but fewer fatalities compared to last year’s Thanksgiving weekend, when there were 408 accidents with four fatalities. Read more.

Cheers for the Demise of the Clamshell

The Courant praises Amazon's decision to ditch impossible clamshell packaging, which is blamed for thousands of injuries nationwide.