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Fake California Cancer Doctor’s Home/Office Searched July 28th, 2015

162017_132140396847214_292624_nAn El Cerrito, California man’s home and his Richmond, California business address have been searched by law enforcement authorities in conjunction with an investigation into the man’s alleged illegal representations to patients that he was a cancer doctor, who physically examined them and treated them with prescription medications.

The raids by police reportedly resulted in the confiscation of over 25,000 doses of prescription medications. The fake cancer doctor is facing serious criminal charges of practicing medicine without a medical license and illegally furnishing prescription medications. There may be thousands of terminally ill cancer patients who were “treated” by the man, who himself had been a former cancer patient but was never a licensed doctor, throughout the State of California.

In one reported case, the fake cancer doctor received thousands of dollars from a cancer patient, who is the mother of two children and was desperate to find appropriate treatment for her serious cancer diagnosis. The man allegedly mixed medications in his office and instructed the woman to drink the mixture. She complained to the “doctor” that the medication was burning her mouth, to which the man reportedly responded by saying that the burning sensation meant that the mixture was still active. The woman became suspicious and contacted authorities, who began their investigation.

Investigators allege that the fake cancer doctor prescribed his “patients” dangerous medications, provided empty pills, and even prescribed “dirt” as cancer treatments.

Source

Terminally ill cancer patients are among the most vulnerable and desperate patients who may be willing to try (and pay for) just about any proposed therapy, no matter how strange or unusual it may seem, to extend their lives or achieve a promised cure. Desperate people are a magnet for unscrupulous con artists and criminals who prey on such people, to separate them from their money.

Whether health care criminals are licensed to practice their medical specialty or are outright cheats, it probably means little to those who are scammed and harmed by inappropriate or negligent medical care. An appropriately licensed but incompetent doctor or other health care professional is just as dangerous to patients as those who have no legitimate medical training or licensure.

An important difference for patients harmed by bad medical care, however, is that a licensed medical provider often has the backing of his/her medical malpractice insurance company that is willing to spend enormous amounts of money and provide an aggressive and prolonged defense no matter how bad the medical care, how bad the injuries and harm that resulted from the bad medical care, or who the victims of bad medical care (such as newborns, children, and the elderly) are.

If you or a loved one are the victim of medical malpractice in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find medical malpractice attorneys in your state who may assist you.

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Georgia Supreme Court Discusses Medical Expert Qualifications In Medical Malpractice Cases July 27th, 2015

162017_132140396847214_292624_nThe Supreme Court of Georgia issued an opinion on July 13, 2015 discussing Georgia’s requirements concerning medical experts who testify in Georgia medical malpractice cases: in particular, what sort of experience is required of a practicing surgeon who is offered as an expert witness in a medical malpractice case in order to render an opinion that another surgeon breached the applicable standard of care in performing a surgical procedure, under OCGA § 24–7–702 (“Rule 702″).

Rule 702(b) provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

Rule 702(c) sets forth an additional requirement for the admission of expert testimony about the applicable standard of care in all professional malpractice cases, including medical malpractice cases: in a professional malpractice case, an expert on the standard of care must have been “licensed by an appropriate regulatory agency to practice his or her profession … or teaching in the profession” at the time of the alleged negligence at issue.

Rule 702(c)(2)(C) requires that an expert in a medical malpractice case generally must be “a member of the same profession” as the defendant about whose alleged malpractice the expert will testify; Rule 702(c)(2)(A) and (B) require that such an expert had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result having been regularly engaged in: (A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or (B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue․

In the case the Georgia Supreme Court was deciding, the plaintiff claimed that the defendant surgeon negligently punctured his pancreas with a trocar during a laparoscopic procedure to repair his umbilical hernia. The plaintiffs’ expert general surgeon testified that he uses trocars to perform a variety of abdominal laparoscopic procedures and has performed laparoscopic procedures to repair umbilical hernias in the past, but he no longer performs the particular sort of laparoscopic procedure that the defendant surgeon had performed on the plaintiff but instead now repairs umbilical hernias by open surgery.

The defendant surgeon challenged whether the plaintiffs’ expert was qualified to testify on their behalf under Rule 702 because the expert had not regularly performed laparoscopic procedures to repair umbilical hernias in the past five years. The trial court denied the defendant’s challenge and the defendant appealed to the Georgia Court of Appeals, which concluded that the plaintiffs’ expert was not qualified as a matter of law under Rule 702(c)(2)(A) to offer any opinion about negligence in connection with a laparoscopic procedure to repair an umbilical hernia because he had not participated in laparoscopic procedures to repair umbilical hernias in the past five years (he had been involved in only one such procedure).

The Supreme Court of Georgia overturned the Georgia Court of Appeals’ decision, holding: a careful reading of the text shows that Rule 702(c)(2)(A) and (B) do not require that an expert actually have performed or taught the very procedure at issue. Rather, these provisions require only: that the expert has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given”; that this “actual professional knowledge and experience” is derived from the expert “having been regularly engaged in [t]he active practice of such area of specialty for at least three of the last five years [or] [t]he teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession”; and, that the expert has been “regularly engaged in [active practice or teaching] with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure [or] teaching others how to perform the procedure” – the pertinent question is whether an expert has “an appropriate level of knowledge in performing the procedure [or] teaching others how to perform the procedure,” not whether the expert himself has actually performed or taught it. If the Georgia General Assembly had meant to require absolutely that the expert actually has performed or taught the procedure in question, it presumably would have said so.

The Supreme Court of Georgia therefore held that the trial court properly could have concluded that the plaintiffs’ expert had experience enough to establish a reliable basis for the opinions that he proposed to render, and on the record before it, it cannot be said that the trial court abused its discretion when it found that the plaintiffs’ expert had an “appropriate level of knowledge in performing the procedure” to opine under Rule 702(c)(2)(A) that the defendant surgeon was negligent when he inserted the primary trocar.

Source Dubois et al. v. Brantley et al., No. S14G1192.

If you or a loved one were harmed as a result of medical negligence in Georgia or in another U.S. state, you should promptly find a Georgia medical malpractice lawyer, or a local medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find medical malpractice lawyers in Georgia or medical malpractice lawyers in your state who may assist you.

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Tennessee Supreme Court Applies Common Sense To Medical Malpractice Law July 26th, 2015

162017_132140396847214_292624_nOn May 29, 2015, the Supreme Court of Tennessee (“Tennessee Supreme Court”) prevented the medical malpractice defendants from benefiting from a potential “gotcha” in Tennessee’s medical malpractice law that requires plaintiffs to file a certificate of good faith in medical malpractice actions in which expert testimony is required: “A certificate of good faith shall disclose the number of prior violations of this section by the executing party.” Tenn. Code Ann. § 29-26-122(a), (c), (d)(4).

In the case the Tennessee Supreme Court was deciding, the plaintiff’s certificate of good faith failed to state the number of prior violations of the statute, and the defendants therefore filed a motion to dismiss, arguing that the plaintiff had failed to comply with the strict statutory requirement of section 29-26-122(d)(4).

It was undisputed that neither the plaintiff nor the plaintiff’s attorney had committed any prior violations of the statute, and therefore the plaintiff argued that if there were no prior violations, there is nothing to disclose (the statute does not state that zero prior violations must be disclosed).

The trial court granted the plaintiff’s request for voluntary dismissal without prejudice, the defendants appealed, and the Tennessee Court of Appeals affirmed the trial court’s order granting the plaintiff’s voluntary dismissal without prejudice. The defendants applied to appeal to the Tennessee Supreme Court, which approved the appeal application.

A prior Tennessee Court of Appeals case had held that if a plaintiff’s certificate of good faith is noncompliant with section 29-26-122(d)(4) by failing to disclose the absence of prior violations, then dismissal with prejudice was required. The Tennessee Supreme Court stated that it disagreed with the holding in the Tennessee Court of Appeals’ prior case, and held that the Tennessee Court of Appeals’ interpretation of the requirement of Tennessee Code Annotated section 29-26-122(d)(4) is inconsistent with a fair reading of the language of the statute (the plain language of the statute requires disclosure of “the number of prior violations” but does not require disclosure of whether or not there have been any prior violations – the Tennessee Supreme Court stated that the General Assembly could easily have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations; because it did not do so, if there have not been any prior violations, there is no “number of prior violations” to disclose).

The Tennessee Supreme Court stated, “we conclude that the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith disclose the number of prior violations of the statute does not require disclosure of the absence of any prior violations of the statute.”

Source Timothy Davis ex rel. Katherine Michelle Davis v. Michael Ibach, MD, et al., No. W2013-02514-SC-R11-CV.

If you or a loved one were injured as a result of medical malpractice in Tennessee, you should promptly consult with a Tennessee medical malpractice lawyer who may investigate your medical  malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to be connected with medical malpractice attorneys in Tennessee or in your U.S. state who may assist you.

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Federal Judge Rejects Strict Liability For Defective Medical Device Claim July 25th, 2015

162017_132140396847214_292624_nOn July 15, 2015, a federal judge with the U.S. District Court for Eastern District of Pennsylvania held that the exclusion from strict liability for prescription drug claims should also apply to prescription medical device claims.

Despite the fact that the Pennsylvania Supreme Court has yet to address whether the exemption for unavoidably unsafe drug products should apply to prescription medical devices, the federal judge relied on a ruling by the Pennsylvania Superior Court that had ruled in 2013 that there was no reason why the rationale for exclusion from strict liability for prescription drugs should not also apply to prescription medical devices.

A July 2014 federal court ruling from the U.S. District Court for the Eastern District of Pennsylvania had suggested that the Pennsylvania Supreme Court would extend the exclusion of strict liability claims in prescription drug cases to prescription medical device claims when the issue is presented to it, although a 2013 decision from the U.S. District Court for the Western District of Pennsylvania had allowed a strict liability claim for manufacturing defect against a medical device manufacturer.

The federal judge did allow, however, the plaintiffs to proceed with their claims for manufacturing defect, negligent design, negligence per se, and failure to warn against the defendant spinal implant manufacturer.

The plaintiff had surgery during which two rods called N-Hance spinal fixation rods manufactured by the defendant medical device manufacturer were implanted to repair the plaintiff’s spine. The plaintiff discovered two years later that the rods had failed and that his spine had fractured.

The plaintiffs’ product liability lawsuit alleged that a properly designed and manufactured spinal implant should not bend, break, or fail unless the implant was defectively designed and/or the implant was negligently manufactured. The defendant implant manufacturer filed a motion to dismiss, arguing that a strict liability claim against it was impermissible.

The federal judge stated that the plaintiffs’ sole argument for allowing strict liability for defective manufacturing claims against medical device manufacturers is that medical devices can be altered or manufactured in different ways to render them more fit for their purposes and therefore should be subjected to equal or greater liability than most products. The federal judge rejected the plaintiffs’ argument, stating, “I find this attempt to distinguish medical devices from prescription drugs to be unpersuasive, as both medical devices and prescription drugs could be manufactured in different ways to make them more fit for the purpose. Like prescription drugs, medical devices are known to cause possible harm, but the risks are outweighed by the benefits they provide for patients who need them.”

Source Wilson v. Synthes USA Products, PICS No. 15-1122.

If you or a loved one were injured as a result of a medical device in the United States, you should promptly consult with a medical device claim attorney who may investigate your medical device claim for you and represent you in a claim against a medical device manufacturer, if appropriate.

Click here to visit our website to be connected with medical device claim lawyers in your state who may assist you, or telephone us toll-free at 800-295-3959.

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Florida Appellate Court Upholds Defendants’ Ex Parte Communications With Medical Malpractice Plaintiffs’ Health Care Providers July 24th, 2015

162017_132140396847214_292624_nIn its opinion filed on July 21, 2015, the District Court of Appeal First District, State of Florida (“Appellate Court”) upheld certain 2013 amendments to the medical malpractice presuit notice sections of the Florida Statutes (Sections 766.106 and 766.1065) that allow for presuit ex parte interviews between potential medical malpractice defendants and the potential claimant’s treating health care providers, and require the potential claimant to sign a written waiver of federal privacy protection concerning relevant medical information prior to instigating a medical malpractice lawsuit.

Florida’s medical malpractice presuit notice statutes require a claimant to provide a potential defendant with notice prior to filing suit and implement a 90-day tolling period after service of the notice in order for the parties to investigate the claim presuit. § 766.106(3), Fla. Stat. (2013). Prior to the 2013 amendments, five methods of informal discovery were available to the parties when conducting this presuit informal investigation, including the taking of unsworn statements. § 766.106(6)(b)(1)-(5), Fla. Stat. (2012). The 2013 amendments added a new method of informal discovery for prospective defendants: interviews of treating health care providers. Ch. 2013-108 § 3, Laws of Fla. (codified at § 766.106(b)(5), Fla. Stat. (2013)); Ch. 2013-108 § 4, Laws of Fla. (codified at § 766.1065(3), Fla. Stat. (2013)).

The interviews are to be “consistent with the authorization for release of protected health information,” which must be signed by the claimant prior to the initiation of the medical malpractice lawsuit. § 766.106(2)(a), Fla. Stat. (2013). The authorization itself explicitly provides permission for potential medical malpractice defendants to conduct ex parte interviews with the claimant’s health care providers. § 766.1065(3)(E), Fla. Stat. Nonetheless, the statute does not require the claimant’s treating health care providers to submit to a request for an interview. § 766.106(6)(b)(5), Fla. Stat.

The medical malpractice claimant may revoke the authorization for release of protected health information; however, if the claimant does so, the presuit notice that was served with the authorization “is deemed retroactively void from the date of issuance, and any tolling effect that the presuit notice may have had on any applicable statute-of-limitations period is retroactively rendered void.” § 766.1065(3)(G), Fla. Stat. Thus, since the 2013 amendments, a Florida medical malpractice claimant cannot institute a medical malpractice lawsuit without authorizing ex parte interviews between the claimant’s health care providers and the potential defendants. § 766.1065(3), Fla. Stat.

The plaintiff in the Florida medical malpractice case decided by the Appellate Court challenged the 2013 amendments on federal preemption and on constitutional grounds, arguing that the amendments violated the separation of powers doctrine, violated the constitutional limitation on special legislation, impermissibly burdened the constitutional guarantee of free access to the courts, violated the decedent’s constitutional right to privacy, and were preempted by the Health Insurance Portability Accountability Act of 1996 (“HIPAA”).

The Appellate Court held that the informal discovery methods outlined in the medical malpractice presuit statute, like the presuit notice requirement itself, are integral to promoting “the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding” and, therefore, cannot be divorced from the other substantive aspects of the statute; the amendments are not procedural but rather are integral to the substantive presuit notice statute.

The Appellate Court further determined that the 2013 amendments to the medical malpractice presuit notice statute do not intrude upon the Florida Supreme Court’s procedural rule-making power because they are integral to other substantive portions of the statute, and they do not conflict with rule 1.650; that the statutes do not amount to an impermissible special law, but rather amount to a general law that properly applies to an open class of claimants and potential defendants (a special law is one relating to, or designed to operate upon, particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal); that treating medical malpractice plaintiffs and medical malpractice defendants differently than other tort claimants and defendants is justified by the purpose of protecting the public health by ensuring the availability of adequate medical care (Sections 766.106 and 766.1065 were supposedly enacted by the Florida Legislature to combat the financial crisis in the medical liability insurance industry by encouraging early settlement and negotiation of claims; informal pretrial discovery, including the ex parte interview method, allows the parties to collect the information necessary for settlement discussions prior to trial); that a statute that merely imposes conditions to the right to sue must be upheld as long as it does not impose a hurdle that is either impossible to surmount, or so significantly difficult that it is the effective equivalent of a bar to suit (a statute which merely imposes a condition precedent to suit without abolishing or eliminating a substantive right must be upheld in the face of a constitutional challenge unless the statute creates a significantly difficult impediment to right of access; the presuit notice requirement itself is a reasonable condition precedent to filing suit and, thus, does not violate the plaintiff’s right to access the courts); and, “It is well-established in Florida and across the country that any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a medical malpractice claim.”

The Appellate Court stated in a footnote, “We also note information not relevant to the potential lawsuit is not discoverable during the informal discovery process.”

Some Of Our Concerns:

However, how would a potential medical malpractice claimant and/or the claimant’s attorney know if “not relevant information” is sought, disclosed, or discussed if the communications between the medical malpractice claimant’s various health care providers and the potential medical malpractice defendants and their attorneys is secret?

What purpose does ex parte (secret) communications serve except to foster improper mischief? Wouldn’t the public interest be better served if the claimant and/or his attorney is present for the communications between a medical malpractice claimant’s health care providers and the potential medical malpractice defendants, to insure that the discussion and disclosure of sensitive health information is proper?

When newly enacted laws promote and protect secrets among a special class of citizens, then such laws are not only suspect but they are unfair, one-sided, and contrary to the fundamental purpose of government: to protect and serve all of its citizens. An important purpose of our courts is to protect everyone from the over-reach and unnecessary intrusion in our lives by the other branches of government. We believe that the Appellate Court’s affirmation of Florida’s 2013 amendments to the presuit medical malpractice notice requirements is in derogation of the courts’ duty to its citizens to quash improper laws.

Source Weaver v. Myers, M.D., et al., Case No. 1D14-3178.

If you or a loved one were harmed as a result of medical malpractice in Florida, you should promptly find a Florida medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find medical malpractice attorneys who may assist you.

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Illinois Appellate Court Discusses Forum Non Conveniens In Medical Malpractice Case July 23rd, 2015

162017_132140396847214_292624_nIn an Order filed on July 15, 2015 by the Appellate Court of Illinois Fifth District (“Appellate Court”), the Appellate Court discussed the equitable doctrine of forum non conveniens in the context of a medical malpractice case where the defendant, who lived in Illinois, tried but failed to move the pending Illinois medical malpractice case to Missouri. The Appellate Court held that the trial court did not abuse its discretion in denying the medical malpractice defendant’s motion to dismiss on the grounds of forum non conveniens where the plaintiff filed the suit in the home county of the individual defendant and the convenience factors did not strongly favor dismissal.

The Doctrine Of Forum Non Conveniens

Under the doctrine of forum non conveniens, a court may decline jurisdiction over a case in favor of another forum if it appears that litigating the matter in the other forum will be more convenient for the parties and better serve the ends of justice. Forum non conveniens is an equitable doctrine based on principles of fundamental fairness and sensible and effective judicial administration. The Appellate Court stated that although courts have the discretion to decline jurisdiction, they should do so only in exceptional circumstances because a plaintiff has a substantial interest in choosing the forum in which to vindicate his rights – a key consideration is the plaintiff’s choice of forum because the plaintiff’s choice is always entitled to deference.

However, the plaintiff’s choice of forum is not always entitled to the same level of deference: when a plaintiff chooses his home forum or a forum where the incident giving rise to his claim occurred, it is presumed that he chose this forum because it was convenient, but when the plaintiff chooses a forum other than his home county or the site of the events at issue, the presumption is not as strong and the plaintiff’s choice is entitled to somewhat less deference than it otherwise would be in those circumstances (one concern underlying forum non conveniens jurisprudence is the need to discourage forum-shopping by plaintiffs because it may burden communities with litigation over disputes that arose elsewhere, although the Appellate Court noted that both plaintiffs and defendants engage in forum-shopping with equal fervor).

The Appellate Court stated that in determining whether to grant a forum non conveniens motion, trial courts must balance all of the relevant private and public interest factors. Private interest factors include: (1) the convenience of the parties; (2) the relative ease of access to testimony and other evidence; (3) the availability of compulsory service to secure the attendance of unwilling witnesses; (4) the cost to secure the attendance of willing witnesses; (5) the possibility of a jury view of the premises, if appropriate; and (6) all other practical considerations that make a trial easy, expeditious, and inexpensive. The public interest factors include: (1) the administrative difficulties of trying cases in courts with congested dockets; (2) the unfairness of imposing jury duty on residents of a county with little or no connection to the lawsuit; and (3) the interest in resolving local disputes locally.

The Appellate Court stated that in ruling on a forum non conveniens motion, courts must consider all of the private and public interest factors and determine whether, on balance, they strongly outweigh the plaintiff’s interest in choosing a forum, and the decision to grant or deny a forum non conveniens motion rests within the sound discretion of the trial court that will not be overturned absent an abuse of discretion (an abuse of discretion occurs where no reasonable person could take the position of the trial court).

In the case it was deciding, the Appellate Court determined that the convenience of the parties favored the Illinois court filing; the remaining private interest factors, on balance, do not favor either filing in the Illinois court or filing in the Missouri court; and, that all three of the public interest factors weigh in favor of a Missouri court. Nonetheless, the Appellate Court held that the trial court did not abuse its discretion when it ruled that the medical malpractice defendant had not met her burden of demonstrating that the factors favoring the Missouri court strongly outweighed the plaintiff’s interest in choosing a forum (the Illinois court).

Source Dickerson v. Barker, 2015 IL App (5th) 130578-U, No. 5-13-0578.

If you were injured as a result of medical malpractice in Illinois, you should promptly consult with an Illinois medical malpractice attorney who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to be connected with medical malpractice lawyers in Illinois who may assist you.

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Did Maryland Hospital Use Counterfeit Spinal Hardware? July 22nd, 2015

162017_132140396847214_292624_nA Maryland hospital has reportedly been sued by health insurers that allege that some spinal fusion patients who had their surgeries at the hospital may have been implanted with counterfeit spinal hardware. A spine surgeon who operated at the Maryland hospital has also been named in lawsuits, which allege that he received kickbacks pursuant to allegedly sham consulting contracts to use the spinal hardware at the hospital, which had spent over $1 million for the fake products.

The Maryland hospital has sent letters to about 250 former spinal surgery patients who may have received the fake spinal hardware provided by a California company that was required by the FDA to recall some of its spinal products in 2013, and later filed for bankruptcy protection. The Maryland hospital reportedly began its own investigation covering the years 2007 to 2012 but has not uncovered evidence that any fake spinal products were implanted in patients treated at the hospital. The Maryland hospital noted that the recalled spinal implant products were used in a very specific type of spine surgery that represented only a very small percentage of the total spine surgeries performed at the hospital.

One particular difficulty in determining whether counterfeit products were implanted in patients is that the counterfeit products may have been commingled with legitimate products and may be difficult if not impossible to visually distinguish from the genuine products.

The health insurers’ lawsuit reportedly alleges that hospitals and surgeons willfully failed to insure the material was genuine and FDA approved. The insurers claim that they were overcharged for the counterfeit products and that they paid for genuine products when fakes may have been used. The concern for patients is that their safety may have been compromised if they received fake spinal products, and those involved in the alleged counterfeit surgical products scheme had little regard for the health and well-being of spine surgery patients who received the unapproved products, which include fake screws and fake rods used in spinal surgery. If the counterfeit screws and/or rods fail within the first six weeks to six months after surgery, the bones may not heal properly, causing pain and requiring further surgery.

To read an exhaustive investigative report by The Center for Investigative Reporting, which is an independent nonprofit newsroom based in the San Francisco Bay Area of California, regarding the California company allegedly involved with the counterfeit spinal screws, click here.

If you or a loved one had spinal surgery in Maryland or elsewhere in the United States and you suspect that you may have received counterfeit spinal hardware, you should promptly find a Maryland medical malpractice lawyer, or a medical malpractice lawyer in your U.S. state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website to complete a short, secure form to find medical malpractice attorneys in Maryland or in your U.S. state who may assist you with your medical malpractice or product liability claim.

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Illinois Medical Malpractice Wrongful Death Lawsuit Filed After Botched Hernia Repair July 21st, 2015

162017_132140396847214_292624_nAn Illinois medical malpractice lawsuit was recently filed by the wife of a man who died after having emergency exploratory surgery following hernia repair surgery. The wife’s medical malpractice lawsuit claims that the defendants negligently failed to diagnose and treat her husband’s bowel leakage after his hernia surgery, which led to his death.

The medical malpractice plaintiff alleges in her medical negligence lawsuit filed against three doctors and various other health care providers that her husband had laparoscopic incisional hernia repair surgery performed at the defendant hospital on January 30, 2015. After the surgery, the man complained that he was unable to urinate, after which a catheter was inserted. The next day, the man continued to complain that he could not urinate and that his abdomen was distended. He also stated that had nausea and had vomited during the night. Despite his complaints and difficulties, the defendant doctor discharged him from the defendant hospital, with the Foley catheter still in place.

On February 4, 2015, the man was seen by another of the defendant doctors, complaining of significant pain, nausea, difficulty urinating (urinary retention), and continuing abdominal distention. The defendant doctor reassured the man and his wife at that time and took no further action.

The following day, the man went to a hospital emergency room, complaining that he was having abdominal pain. He was found to be hypotensive and had tachycardia. A CT scan found gas and fluid collecting in his pelvis and abdomen, which suggested the potential of a bowel leak and/or abscess, according to the widow’s medical malpractice lawsuit. While in the hospital, the third defendant doctor (a surgeon) was consulted but did not recommend or perform emergency surgery at that time.

The next day, the defendant surgeon transferred the man to the hospital where the original hernia repair surgery had taken place. The original surgeon performed an exploratory laparotomy with abdominal washout, repair of a small bowel enterotomy, removal and explant of synthetic abdominal wall mesh and placement of biologic Strattice mesh, according to the Illinois medical malpractice lawsuit. Nonetheless, the man died three days later.

The man’s widow filed her medical malpractice lawsuit containing sixteen counts on July 10, 2015, alleging medical malpractice wrongful death and survival actions and seeking compensatory damages in excess of $800,000 ($50,000 per count).

Source

While an injury to the bowel is a known risk of laparoscopic hernia repair surgery, a bowel injury during surgery may nonetheless be due to medical negligence, and/or there may be medical negligence involving a delay in diagnosis of the bowel injury and/or delay in properly treating the bowel injury.

If you were injured as a result of medical malpractice in Illinois or elsewhere in the United States, you should promptly consult with an Illinois medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to be connected with medical malpractice lawyers in Illinois or in your U.S. state who may assist you.

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Florida Appellate Court Limits Medical Malpractice Attorneys Fee To $100,000 July 20th, 2015

162017_132140396847214_292624_nIn its decision dated July 15, 2015, the District Court of Appeal of the State of Florida Fourth District (“Appellate Court”) limited to $100,000 the medical malpractice attorneys fee and costs that the plaintiffs’ Florida medical malpractice lawyers could receive for their highly successful and exhaustive efforts on behalf of a child severely and permanently injured at birth.

In September 1997, a newborn sustained a catastrophic brain injury during his birth as a result of the medical negligence of the employees at a local Florida hospital. The Florida medical malpractice law firm began representing the child and his parents in 1999, pursuant to a standard contingency fee agreement that provided an attorneys’ fee of 40% of any recovery if a lawsuit was filed, plus costs; however, if one of the parties was a governmental agency, the attorneys’ fee would be the amount provided by law.

The five-week Florida medical malpractice trial in 2007 resulted in the medical malpractice jury determining that the hospital’s employees had been negligent and that their negligence had resulted in damages to the plaintiffs. The jury awarded the child over $28.3 million, his mother was awarded $1,340,000, and his father was awarded $1,000,000. However, the trial court found that the defendant hospital was an independent special district of the State of Florida and, pursuant to the sovereign immunity damage limitations in section 768.28(5), Florida Statutes (2007), entered a judgment against the hospital in the amount of $200,000.

The Florida medical malpractice law firm took the extraordinary step to submit a claims bill to the Florida Legislature to obtain more money for the child. After a public campaign in support of the bill, the Florida Legislature passed Claims Bill 2012-249 in 2012, directing the defendant hospital to appropriate $10 million, with an additional $5 million payable in annual installments, “to the Guardianship of Aaron Edwards, to be placed in a special needs trust for the exclusive use and benefit of Aaron Edwards, a minor,” but no money was appropriated for the use and/or benefit of either parent for their damages. The claims bill also included a stipulation stating “[t]he total amount paid for attorney’s fees, lobbying fees, costs, and other similar expenses relating to this claim may not exceed $100,000.”

After the first $10 million installment had been paid into the child’s special needs trust, the various trial, appellate, and lobbyist firms that had worked on the child’s case petitioned the guardianship court to approve a closing account statement transferring $2.5 million to them based on a 25% fee cap provision in section 768.28(8), arguing that the fees and costs limitation in the claims bill was unconstitutional (more than 7,000 hours had been devoted to representing the plaintiffs at trial, on appeal, and during the claims bill process, and more than $500,000 in costs had been incurred).

The guardianship court, relying on precedent from the Appellate Court and the Florida Supreme Court, determined that it lacked judicial authority to grant the requested relief in contravention of the language of the claims bill regarding fees and costs. The Florida medical malpractice law firm appealed, arguing that the language of the claims bill limiting the recovery of attorneys’ fees and costs is an unconstitutional impairment of their contract with the plaintiffs and should be severed from the otherwise valid private relief act for the child. They argued, in the alternative, that the guardianship court had inherent judicial discretion to depart from the limitation imposed by the Florida Legislature and grant reasonable fees and costs up to the 25% limit provided by section 768.28(8), Florida Statutes (2007).

The Appellate Court stated that the Florida Supreme Court, in no uncertain terms, has held that the limitation of attorneys’ fees in a private relief act/claims bill is a constitutionally permissible exercise of legislative authority and does not constitute an impairment of contractual obligations proscribed by article I, section 10 of the Florida Constitution, and the Appellate Court therefore affirmed the lower court’s decision.

A dissenting opinion stated, in part: Because the claim bill’s limitation on attorneys’ fees and costs is an unconstitutional impairment on the Edwards family and firm’s right to contract, I would reverse. I have taken the liberty to also write to remind the readers of this dissent and all Florida lawyers, that contingency fee agreements are directly connected to every citizen’s right to access to our courts. I cite to the Florida Code of Professional Responsibility which contemplates the ethical and moral obligation of “us lawyers” licensed to practice in this state, to always consider the contingency fee agreement as the “poor man’s key to the courthouse.”

Source Searcy Denney Scarola Barnhart & Shipley, P.A. v. State of Florida, No. 4D13-3497.

If you or a loved one were harmed as a result of medical negligence in Florida, you should promptly find a Florida medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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California Appellate Court Rules In Favor Of Actos Plaintiffs July 19th, 2015

162017_132140396847214_292624_nIn its decision filed on July 17, 2015, the Court of Appeal of the State of California Second Appellate District Division Three (“Appellate Court”) held that the trial court erred in striking the plaintiffs’ medical expert’s testimony (the trial court required that the expert rule out all other possible causes for the plaintiff’s bladder cancer, other than the defendants’ diabetes drug, Actos, even where there was no substantial evidence that other such causes might be relevant) and that the trial court exceeded the proper boundaries of its gatekeeping function in determining the admissibility of the complex scientific testimony.

The plaintiffs, husband and wife, had sued Takeda Pharmaceuticals America, Inc., Takeda Pharmaceuticals U.S.A., Inc. (formerly Takeda Pharmaceuticals North America, Inc.), and Takeda Pharmaceutical Company Limited (collectively, “Takeda”), alleging that Takeda’s diabetes drug, Actos, caused the husband to develop bladder cancer. In early 2013, a California jury found Takeda liable on causes of action for strict liability failure to warn, negligent failure to warn, and loss of consortium, finding that Takeda failed to adequately warn the husband’s treating physician of the risk of bladder cancer, and that this failure to warn was a substantial factor in causing the husband’s harm. The jury awarded damages to the husband in the amount of $5 million and damages to the wife in the amount of $1.5 million for loss of consortium.

At trial, the trial court permitted the plaintiffs’ expert to testify that, based on his performance of a differential diagnosis, he believed Actos was a substantial factor in causing the husband’s bladder cancer (“[A]fter review of all the potentials, differential diagnosis, ruling in, ruling out, carefully evaluating the occupational, environmental, and smoking, that it’s my opinion that the most substantial causative factor for [the husband] was his length of Actos and cumulative dose of Actos”), but later the court ordered the expert’s testimony stricken, concluding that the testimony was speculative and lacking in foundation and therefore granted Takeda’s motion for judgment notwithstanding the verdict. The trial court also granted Takeda’s alternative motion for new trial on the grounds that without the testimony of plaintiffs’ expert, the evidence was insufficient to support the verdict. The plaintiffs appealed.

The Appellate Court held that the trial court erred in striking the plaintiffs’ expert’s testimony – by requiring that the expert rule out all other possible causes for the husband’s bladder cancer, even where there was no substantial evidence that other such causes might be relevant, the trial court exceeded the proper boundaries of its gatekeeping function in determining the admissibility of the complex scientific testimony. The Appellate Court also held that the evidence supported giving a jury instruction on multiple causation.

The Appellate Court explained: “In the instant case, the trial court’s reasoning concerning the flaws in Dr. Smith’s differential diagnosis held Cooper’s expert to a more rigid standard than is required to prove causation in civil cases. Under the applicable substantial factor test, it is not necessary for a plaintiff to establish the negligence of the defendant as the proximate cause of injury with absolute certainty so as to exclude every other possible cause of a plaintiff’s illness, even if the expert’s opinion was reached by performance of a differential diagnosis. The jury here was required to determine whether there was any substantial evidence that other known risk factors for bladder cancer acted on plaintiff and provided an alternative explanation for his disease. But only if the existence of an alternative explanation, supported by substantial evidence and not mere speculation, as a matter of law defeated the explanation proffered by Cooper (i.e., Actos®) would JNOV be appropriate … because California has rejected the notion that a plaintiff must definitively “exclude all ‘possibilities’” other than the defendant’s conduct or product as the cause of plaintiff’s harm, clearly an expert, in reaching a specific causation opinion, need not exclude all other possibilities before he or she can express an opinion that defendant’s conduct or product caused the plaintiff’s harm … [t]o be admissible, an expert physician’s testimony, even in the context of the physician’s performance of a differential diagnosis, need not rule out the applicability of all other possible causes of disease where there is no substantial evidence that other known risk factors for bladder cancer acted on Cooper and provided an alternative explanation for his disease.”

The Appellate Court remanded the matter to the trial court with directions to enter a new judgment based on the jury’s verdict (“We find that the trial court erred in excluding Dr. Smith’s opinion testimony regarding specific causation as being clearly speculative, unreliable, lacking in intellectual rigor, and based only on studies that did not actually support his reasoning. Dr. Smith is one of the foremost experts in the world on bladder cancer, and provided helpful and appropriate expert testimony to assist the jury in deciding the complicated issue of whether Cooper’s cancer was caused by Actos®”).

Source Cooper v. Takeda Pharmaceuticals America CA2/3

If you or a loved one suffered injuries (or worse) as a result of a drug, you should promptly find a drug claim attorney who may investigate your drug claim for you and represent you in a lawsuit against a pharmaceutical company, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find drug claim lawyers in the United States who may assist you.

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