Unsafe Drug Alert: Benicar High Blood Pressure Medication

Nearly 67 million Americans are prescribed Benicar to treat their high blood pressure.

After research surfaced linking it to severe gastrointestinal side effects, the Food and Drug Administration ("FDA") required a warning label, a flood of "failure to warn" lawsuits ensued, and Benicar manufacturer Daiichi Sankyo entered into a $39 million settlement agreement with the United States Department of Justice. 

What is Benicar? 

High blood pressure medication "Benicar" is in a class of drugs known as "angiotensin II receptor blockers" ("ARB"), the active ingredient in which lowers the body’s blood pressure by keeping blood vessels dilated. 

Also marketed as "Benicar HCT", "Azor "and "Tribenzor", Benicar is manufactured by Daiichi Sankyo and received FDA approval on April 25, 2002. 

In 2012 alone, over 1.9 million patients were prescribed Benicar from which Daiichi Sankyo received billions in sales revenue. 

Bennicar Side Effects 

After years on the market, research surfaced linking Benicar patients to serious and  deadly gastrointestinal complications including: 

• Sprue like enteropathy (a disease with Celiac-like symptoms)
• Vinous atrophy (damages small intestines ability to absorb nutrients)
• Kidney problems and failure
• Liver impairment
• Dehydration
• Chronic diarrhea
• Nausea and vomiting
• Malnutition
• Significant weight loss
• Abdominal pain
• Angioedema (rapid swelling of the skin)
• Chest pain
• Hair loss and rashes
• Irregular heart beat
• Arthritis

Benicare Lawsuits

After research surfaced linking Benicar to severe side effects, in April 2014, the FDA ruled that Benicar required a label warning associating it with specific and significant gastrointestinal ailments.

Shortly thereafter, a flood of "failure to warn" lawsuits ensued and, in early 2015, Daiichi Sankyo entered into a settlement agreement with the United States Department of Justice.

Specifically, to resolve allegations that it paid kickbacks to induce physicians to prescribe Benicar over other ARBs in violation of the False Claims Act, Daiichi Sankyo agreed to pay $39 million.

Four Things Never to Say to an Insurance Adjuster After an Accident

For most people, "insurance company" means the agent who sold them their home, life, auto, or health insurance policy; a salt-of-the-earth family man with a ready smile, genuinely interested in your life and family, and whom, after you signed the policy application, let you keep the pen! 

After an auto accident, you'll meet another insurance company representative: the adjuster.  While pleasant and charismatic, she acts on behalf of the other driver’s insurance company when he negligently injured you.  She’s matter-of-fact and businesslike, and, because insurance companies are in the business of making money, her primary goal is to minimize your claim.  

To receive the compensation you deserve for your injuries and property damage, there are four types of statements you should never make to an insurance adjuster. 

1. “In My Opinion” or “I Think”

An adjuster may ask you several things in several ways, and all your answers will be used to prevent you from getting your claim's maximum value.  If you do not know the answer to a question, say nothing and only state the facts.  Don’t guess or estimate anything.

 2. “I’m Sorry” or “It Was My Fault”

Apologize for nothing.  Apologies can be interpreted as admitting fault, you did not witness the accident and everything you say will be used against you.  Even if you feel you are at fault, the other driver may have caused the accident or have just as much responsibility for it as you do.  These statements should never be made to any insurance adjuster, police officer, or other driver.

3.“I’m Not Hurt”

Volunteer nothing.  Just because you may not have any visible injuries, it does not mean you are fine.  Some injuries may not show up right away and the initial shock's adrenalin may prevent you from feeling the pain you may experience in the ensuing days.  Have a doctor document any pain you may be feeling and avoid signing a medical release without speaking to an experienced accident attorney.

4. Recorded Statements

You have no obligation to give a recorded statement.  Because what you say to an insurance adjuster can be taken out of context, never agree to provide a recorded statement.

 Many accident victims are not aware of their claim's value and may be tempted to accept the insurance company's first offer.  Do not rush into a settlement without consulting an attorney able to calculate your claim's value, taking into consideration immediate and future injuries and expenses such as medical bills, out-of-pocket expenses, lost wages, pain and suffering, and the impact an injury may have on your life.

Takata Airbag Injuries Causes Nationwide Recall

On October 21, 2014, the National Highway Traffic Safety Administration ("NHTSA") reported that recall of Takata Corp. supplied airbags would affect 4.7 million vehicles.

A Tokyo-based supplier of seat belts, steering wheels and other auto parts, Takata's airbags contain faulty inflator mechanisms causing rupture and release metal shrapnel when deployed in a collision.  Presently, 4 deaths and 139 injuries (particularly affecting the face and neck) have been attributed to the defective Takata airbags.  

Since 2008, over 14 million vehicles have been recalled for Takata defects from automakers including Toyota, Honda, Mazda, BMW, Nissan, General Motors, Ford, Mitsubishi and Subaru.

Because the defect has been specifically seen in vehicles located in high humidity regions, the NHTSA advised that Florida, California, Hawaii, Texas, Louisiana, Mississippi, Alabama, Georgia, and South Carolina vehicles owners take immediate action. 

The Center for Auto Safety has warned that the potential for defective airbags goes beyond the recall's identified areas which does not include the 2 states - - Virginia and Oklahoma - - in which people have been killed due by defective airbags metal shrapnel.  

The vehicles contained in the "Takata Airbag Recall" list currently include:

◦2002–2004 Lexus SC

◦2003–2004 Toyota Corolla and Tundra

◦2002–2004 Toyota Sequoia

◦2003– 004 Pontiac Vibe

◦2001–2007 Honda Accord (4 cyl)

◦2001–2002 Honda Accord (6 cyl)

◦2001–2005 Honda Civic

◦2002–2006 Honda CR-V

◦2003–2011 Honda Element

◦2002–2004 Honda Odyssey

◦2003–2007 Honda Pilot

◦2006–Honda Ridgeline

◦2003–2006 Acura MDX

◦2002–2003 Acura TL/CL

◦2001–2003 Nissan Maxima and Pathfinder

◦2002–2003 Nissan Sentra

◦2001–2003 Infiniti I30/I35

◦2002–2003 Infiniti QX4

◦2003 Infiniti FX

◦2003–2004 Mazda 6

◦2004–Mazda RX-8

◦2000–2005 BMW 3 Series Sedan and Sports Wagon

◦2000–2006 BMW 3 Series Coupe

◦2000–2006 BMW 3 Series Convertible

◦2001–2006 BMW M3 Coupe and  Convertible

◦2002–2003 Buick LeSabre and Rendezvous

◦2002–2003 Cadillac DeVille

◦2002–2003 Chevrolet Trailblazer, Impala, Monte Carlo and Venture

◦2002–2003 GMC Envoy and Envoy XL

◦2002–2003 Oldsmobile Aurora, Bravada and Silhouette

◦2002-2003 Pontiac Bonneville and Montana

◦2005-2007 Mustang

◦2005-2006 GT

◦2004 Ranger

5 Tips For Picking Automobile Insurance

Which automobile insurance company is right for you?   

Whether bringing a car accident claim or just trying to understand costs, coverage and exclusions, avoiding the stinkers will make an enormous difference in both what you are able to recover and how you are treated. 

However, because Pennsylvania Insurance Department's website http://www.insurance.pa.gov/portal/server.pt/community/insurance_pa_gov/ lists hundreds of insurers, choosing the best carrier can be challenging.  

In selecting an insurance company the main points to consider are stability, service, comfort, licensing and cost.  

1. Stability 

Insurance is purchased for financial protection and to provide peace of mind.   

Research insurance companies to determine if the insurer is stable, financially sound, and likely to be around for the duration.   

Remember, because they are paid commissions by the insurance companies, insurance agents and brokers are often conflicted and unable to provide you fair and unbiased information.  

2. Service 

Your insurance company and its representatives should be able to answer your questions and handle your claims swiftly, efficiently and fairly.   

Talking to other customers who have used a particular company or agent is an excellent way of determining what level of service is being provided.  Further, in addition to state insurance departments, many national claims databases exist listing and indexing complaint information for particular a insurance company and service relative to the number of policies it sold.   

3. Comfort 

Whether purchasing insurance from a local agent or directly from the company over the phone or the Internet, you must be comfortable both with the insurance you purchased and ease and responsiveness of communication with the insurer.   

Make sure that the agent or company will be easy to reach if you have a question or need to file a claim.   Consider whether you prefer a company that has agents you can visit locally or how quickly and satisfactorily it responds to information requests. 

4. Licensing 

For your state insurance department to regulate your carrier and resolve any problem you may have, a prospective insurance company must be licensed to operate in your state.   

Contact the state insurance department (http://www.iii.org/state-organizations) to determine which companies are licensed in your state. 

5. Cost

 Because insurance policies' coverage and prices vary greatly, shopping around is critical.  

Get at least three (3) price quotes from companies, agents and from the Internet.  

Further, your state insurance department http://www.iii.org/state-organizations may publish a guide listing what insurers charge for different policies in various parts of your state.

Prescription Medication Error Medical Malpractice

According to a recent Yale-New Haven Hospital study, 3 out of 4 patients leave the hospital with either the wrong prescriptions or a lack of understanding about their medications.  

The chief researcher, Dr. Leora Horwitz, who also practices at the hospital, said healthcare providers “do a relatively poor job of educating patients about their medications.”  

Medical malpractice mistakes involving medication errors injuring more than 1.3 million persons a year.  

The study looked at 377 Yale-New Haven Hospital patients, ages 64 and older, who had been admitted with heart failure, acute coronary syndrome or pneumonia, then discharged to home.  

Of that group, 307 patients - - 81% - - either experienced a provider error in their discharge medications or had no understanding of at least one intended medication change.  

“We’re talking about the vast majority of our patients going home at potential risk” of medication problems, Horwitz said. “That’s huge. Collectively, something is not right.”  

The Yale study relied on interviews with patients after discharge, who were asked about their medication regimen. The researchers also reviewed patients’ admission and discharge medication records to see if all changes were intentional, or if any appeared to be errors.

Other study findings include:

•24% of medication changes were due to provider error.

•The average patient had no understanding of 60% of all stopped, re-dosed and new medications.

•Errors and misunderstanding were more common for medications not related to patient’s primary diagnosis than for those related to main ailment being treated.

•The electronic medical records system used at Yale and other hospitals makes it hard to track and reconcile medication changes.

•Patient discharge lists don’t flag which prescriptions are new and which have been stopped.

•Patients at many hospitals get a quick drug rundown from a nurse before discharge, but not a thorough review that ensures they understand the medications. 

Dr. Horowitz recounted a horror story in which one of her patients switched to a new beta blocker for high blood pressure during an inpatient hospital stay.  She landed back in the hospital after discharge when she took both the new medication and her old beta blocker – a combination that lowered her heart rate and blood pressure to dangerous levels.  

Medical malpractice errors – including prescription mistakes – are responsible for up to 98,000 wrongful deaths in American hospitals each year.  

The full Yale-New Haven Hospital is at: http://www.nhregister.com/articles/2012/12/03/news/doc50bd213d5f662015750301.txt

Higher Gas Prices Result in Motorcycle Fatalities

While traffic fatalities have dropped to record lows, motorcycle deaths have risen reflecting both an increase in the number of riders and cycles' inherent vulnerability. 

A strong relationship exists between gasoline prices and motorcycle fatalities - - as gas prices rise, so do the number of fatalities - - and wearing helmets is still the best method of reducing motorcycle deaths.  

Dangers of Motorcycle Travel 

According to the National Safety Council ("NSC"), motorcycles are the highest-risk form of travel and do not follow normal highway fatalities trends because circumstances leading to motorcycle deaths differ from automobile crashes. 

In 1975, 44,525 people died in US highway accidents of which 3,189 were motorcyclists.

By 2012, total highway fatalities had dropped to 33,561, while motorcycle deaths rose to 4,957.

In Pennsylvania, between 2001 and 2013 motorcycle fatalities rose 43% while fatalities in other vehicles dropped 27%.

Although millions more cars and motorcycles are on the road now than in 1975, the fatality rate has dropped for both vehicles with a threefold nationwide drop in car fatalities compared with a 14% drop for motorcycles.

Unlike motorcycles, cars have become safer by seat belts, air bags, antilock brakes and electronic stability control.  Conversely, according to the Governors Highway Safety Association ("GHSA"), little can be done to improve motorcycle safety other than helmet wearing which, unfortunately, has diminished over the past 30 years. 

In 1975, 47 states required all motorcyclists to wear helmets but that number has dropped to 19.

New Jersey requires helmets, but in 2003 Pennsylvania repealed its mandatory helmet law requiring helmets only for those under 21 or licensed for less than 2years (unless they have completed an approved safety course).

The National Highway Traffic Safety Administration ("NHTSA") estimated that in 2011 helmets saved 1,617 motorcyclists' lives and would have saved 703 additional lives if all motorcyclists wore helmets.

Further, according to Pennsylvania's Motorcycle Dealers Association, motorcyclists are much less visible to motorists distracted driving by talking on cellphones or texting which likely has contributed to accidents.

Gasoline Price and Motorcycle Fatality Correlation

An NSC analysis charting the trend since 1976 shows a strong correlation between gasoline prices and motorcycle fatalities. 

Specifically, because higher gas prices encourage using fuel-efficient motorcycles instead of cars leading to more - - and more inexperienced - - motorcyclists, as gas prices rise, so do the number of motorcycle deaths.

To reduce motorcycle fatalities, the GHSA recommends:

°Increasing helmet use.  In 2012, the U.S. Government Accountability Office concluded  that laws requiring all motorcyclists to wear helmets are the only strategy proven to be effective in reducing fatalities.

°Reducing drunken riding.  In 2010, 29% of fatally injured riders had a blood alcohol concentration at or above 0.08 % legal limit, the highest among all motorists.

°Reducing speed. 35% of motorcycle riders involved in fatal crashes were speeding and almost half of these crashes did not involve any other vehicle.

°Improving training.  While all states offer training, some courses may not be provided at convenient times and locations.

°Encouraging drivers to share the road.  According to NHTSA, when motorcycles crash with other vehicles, the other vehicle usually violated motorcyclist's right of way.

Injury Claims Against The Government

Ever get clobbered by the Government, literally?

Victims of accidents due to federal and state government employees' negligence - - and aviation, maritime, and negligent healthcare claimants at government owned facilities and military hospitals - - bring personal injury actions against the state or federal government to pay damages for losses and suffering.

What Are Governmental Claims

Like any other institution, the federal government and its employees can harm people through negligence.  A Veterans Administration doctor may cause a wrongful death through negligence and medical malpractice.  A law enforcement officer may commit a heinous act of brutality resulting in serious injuries.  A contractor working on a government project may cause a construction accident.

But suing the government to pay for losses and suffering caused by its employees' negligence and wrongdoing is different from any other personal injury action and requires getting around sovereign immunity, a legal doctrine immunizing the state from prosecution for a legal wrongdoing.

Federal Tort Claims Act

The Federal Tort Claims Act ("FTCA") is a statute enacted by the United States Congress in 1946 permitting private parties to sue the United States in a federal court for torts committed by persons acting on the United States' behalf.

The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment.   Under the FTCA, the government can only be sued "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."  Thus, the FTCA does not apply to conduct that is "uniquely governmental" and incapable of performance by a private individual.

The FTCA further provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.  However, the FTCA provides an exception that the government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.

FTCA Exposure Exceptions

The FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances.

These exceptions include the "discretionary function exception" barring a claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."  28 U.S.C. §2680(a).

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two‑part test.  First, determine whether the conduct involved "an element of judgment or choice" which is not satisfied if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow."

If an element of judgment is established, the second inquiry is "whether that judgment is of the kind that the discretionary function exception was designed to shield" in that it involves considerations of "social, economic, and political policy."

Mechanics of Bringing a Government Claim

The FTCA specifies that government's liability is to be determined "in accordance with the law of the place where the [allegedly tortious] act or omission occurred."

Thus, in an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law.  

A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law

Unsafe Drug Alert: Testosterone Replacement Products

On January 31, 2014, the Food & Drug Administration ("FDA") launched an investigation into the risks of testosterone replacement therapy through the use of products including AndroGel®, AndroDerm®, Axiron®, and Testim®.  

Alarming new research suggests that millions of men may be at risk for a heart attack, stroke or premature death by taking testosterone therapy they don’t actually need and “Low T” testosterone replacement therapy lawsuits have already been filed in Federal District Court.  

Booming "Testoterone Replacement Therapy" Market 

In the past several years, testosterone replacement therapies manufacturers have aggressively marketed their product for treatment of common and natural effects of aging in men - - like normal decline in sexual drive, energy and athleticism - -  by describing these effects as a new medical condition called “Low T.”  

According to the industry, such symptoms call for treatment with testosterone replacement therapy and a prescription for one of their testosterone supplement products. 

While testosterone has been in limited clinical use since 1937 and approved by the FDA since 1953, testosterone can now be administered by patients at home, and the drug comes in at least five forms including patches, gels and injections.  

According to the FDA, prescription testosterone is only indicated for men with demonstrated low testosterone levels and an associated medical condition known as “hypogonadism.”  In recent years, "testosterone replacement treatments" use has increased radically, largely due to increased manufacturers advertising on websites www.isitlowt.com and www.low-testosterone-option.com.  

Since 2001, the number of testosterone prescriptions given to American men has tripled and in 2012 sales were estimated at $2 billion with three million prescriptions being written for the market leader AndroGel® alone.  

Testoterone Replacement Therapy Litigation 

Alarming new research suggests that millions of men may be at risk for a heart attack, stroke or premature death by taking testosterone therapy they don’t actually need.

 On January 29, 2014, the respected medical journal PLoS ONE found that prescription testosterone can double the rate of heart attacks in men 65 and older and triple the risks in younger men with a history of heart disease.  Another study published by The Journal of the American Medical Association found that men age 60 and older using testosterone drugs had a 30 percent greater risk for stroke, heart attack, and death compared to those who didn’t use testosterone replacement drugs.  

Lawsuits related to the use of testosterone replacement therapy for so-called “Low T” which seek compensation for such injuries have already been filed in Federal District Court.

OSHA Launches Online Whistleblower Claim System

To protect employee "whistleblowers", on December 5, 2013, the Occupational Safety and Health Administration ("OSHA") launched an online whistleblower complaint system at http://www.whistleblowers.gov/.

"Whistleblowing activity" includes reporting a work-related injury, illness, or fatality, participating in safety and health activities, or reporting a statutory or regulatory violation.

Although known primarily as the federal agency responsible for regulating workplace health and safety under Occupational Safety and Health Act, OSHA's "Whistleblower Protection Program" enforces the whistleblower protection provisions of 22 different federal statutes including:
°Asbestos Hazard Emergency Response Act;
°Clean Air Act;
°Comprehensive Environmental Response, Compensation and Liability Act;
°Consumer Financial Protection Act;
°Consumer Product Safety Improvement Act;
°Energy Reorganization Act;
°Federal Railroad Safety Act;
°Federal Water Pollution Control Act;
°International Safe Container Act;
°National Transit Systems Security Act;
°Pipeline Safety Improvement Act;
°Safe Drinking Water Act;
°Sarbanes-Oxley Act;
°Seaman's Protection Act;
°Section 1558 of the Affordable Care Act;
°Solid Waste Disposal Act;
°Surface Transportation Assistance Act;
°FDA Food Safety Modernization Act; and
°Toxic Substances Control Act.

Mirroring the existing paper complaint form, OSHA's free online system provide workers with an accessible way to file whistleblower complaints without fear of retaliation. 

Workers can now file whistle blower complaints by calling an agency hotline or a regional office, submitting a written complaint, or using the online form. 

Given the ease with which employees now can file complaints, employers should anticipate a likely whistleblower claims increase by updating internal policies and educating managers on the whistleblower statutes.

"Bad Faith" Insurance Claims

Accidents aren't the only cause of personal injury harm

 

Injured plaintiffs are often victims of wrongful delaying, withholding, or denying of benefits by either their own or the injury-causing-party's insurance company known as "bad faith".

Bad faith law requires an insurer who has acted in bad faith to compensate the policyholder the original claim's amount, any other losses resulting from the denial of benefits, and, to deter future wrongful acts, punitive damages.

Types of "Bad Faith"

"First Party" bad faith regards insurance companies' obligation to their injured policyholders to settle claims in a reasonable amount of time and for a reasonable amount of money.

"Third Party" bad faith regards claims made against the injury-causing-party's policy.   For example, if you're injured in an accident where someone else is clearly at fault, their insurance company, the Third Party insurer, is responsible for compensating for your injuries and settling the claim in a reasonable amount of time and for a reasonable amount of money. 

Examples of bad faith include undue delay in handling claims, inadequate investigation, refusal to defend a lawsuit, threats against an insured, refusing to make a reasonable settlement offer, or making unreasonable interpretations of an insurance policy.

Bad Faith Law and Claims 

Because it is among the United States' most powerful and profitable industries, insurance companies wield significant influence over the federal government which has no bad faith law or requirements that insurers act in good faith and fairly with their insureds.  

Instead, the insurance industry is regulated by state created bad faith law which deems insurers as having a "fiduciary relationship" - - a special relationship of trust and of acting in good faith - - with policyholders and define "bad faith" as delaying, withholding, or denying policyholder benefits based on legitimate claims filed under valid insurance policies.  

Bad faith laws require insurance companies to "adjust", i.e., deny or pay, a claim within a reasonable period of time, cooperate with claimants through all dealings, including promptly responding to policyholder inquiries, and express the exact reason for denying requested benefits by citing the policy provision upon which that decision relies.   

Bad Faith Claims and Recovery 

When it wrongfully delays, withholds, or denies benefits, bad faith law empowers injured policyholders to seek relief from the insurance company through a tort, or personal injury, lawsuit.  

Bad faith law requires an insurer who has acted in bad faith to compensate the policyholder both the original claim's amount and any other losses resulting from the denial of benefits.  Further, to deter future wrongful acts, bad faith law provides for recovery of punitive damages from insurance company.

Class Action and Mass Tort Actions

Class actions are procedural device to determine the rights and remedies of large numbers of people whose cases involve common questions of law, fact and harm suffered in areas including insurance, banking, securities, workers' rights, maritime and unfair trade and consumer protection.

Unlike "class actions", in which the plaintiff seeks court approval to litigate on behalf of a group of identically situated persons, mass tort actions involve similarly situated people whose claims are brought in one "mass tort " complaint seeking the efficiencies and economic leverage that class action's provide. 

What Are Class Actions 

A class action is a civil lawsuit brought by one person on behalf of a larger group of people who have suffered a similar harm or have a similar claim.  Class actions can be brought in federal or state courts and are used when too many people have been affected by the subject of the claim for each to file separate lawsuits frequently involving injuries resulting from hazardous products and drugs like tobacco, asbestos, Agent Orange, breast implants, and contraceptives.  

Class actions are also used in securities (e.g., fraudulent financial statements or releasing false information about stocks and other forms of market manipulation) and employment (e.g., wage/hour laws violations and mass dismissals) cases or to stop illegal or harmful practices like oil spills, manufacturing pollution, or Constitutional protection violations. 

Mechanics of Class Action Proceedings 

A lawsuit becomes a class action when a plaintiff, called the "Lead Plaintiff", files a lawsuit claiming that a harm has been suffered and requesting that the case be certified as a class action.  

To have the case certified, the Lead Plaintiff must demonstrate that:

• a legal claim exists against the defendant(s);

• a significantly large group of people have been injured in a similar way and their respective claims involve similar issues of fact and law as that of the Lead Plaintiff; and

•the Lead Plaintiff is typical of the class members, has a reasonable plan and ability to adequately represent the class, and has no conflict with other class members.  

If certified as a class action, the court will order that the class of affected people be notified including through direct mailings.  Class membership is usually automatic and, unless they choose to "opt out", everyone affected by the wrongdoing will be part of the case.

Unless they have evidence to offer, class members generally are not involved in the case nor the settlement negotiations.  Instead, the Lead Plaintiff consults with the class action attorneys to develop the case's strategy (including and accepting settlement offers) and other class members only may choose to accept or opt out of the settlement.

 

Class Action Recoveries 

Because few class actions proceed to trial, and often settle following class certification, a large portion of the proceeding involves forging a settlement. 

The court decides how to divide any recovery and the attorneys are given costs and fees, often calculated as a percentage of the entire recovery.  The Lead Plaintiff receives an amount partly determined by his participation, and the rest of the recovery is then divided among the class members.

Mass Tort Actions 

Unlike "class actions", in which the plaintiff seeks court approval to litigate on behalf of a group of identically situated persons, many disputes involve similarly situated people whose claims are brought in one "mass action" complaint seeking the same efficiencies and economic leverage as if a class had been certified. 

Because they operate outside class action's detailed procedures, mass torts actions can pose special difficulties.  For example, unlike a class action settlement, which follows a predictable path of negotiation with class counsel and representatives, court scrutiny, and notice, a uniform method for settling all mass tort claims may not exist.  

Some states permit plaintiff's counsel to settle all mass tort plaintiffs claims according to a majority vote while others require each plaintiff to approve the settlement of that plaintiff's respective claims.

Construction Accidents

People working in construction are exposed to tremendous hazards and dangers with thousands of construction workers seriously injured or killed each year. 

Despite state and federal regulations, as well as industry standards, requiring owners, general contractors and subcontractors to implement a wide variety of safety measures, each year U.S. workers experience 6,000 job related deaths and 5.7 million occupational injuries, illnesses and accidents. 

Because of nearly daily changes at construction sites, construction accidents require early legal intervention and investigation.

General Construction Site Accidents 

Each year more workers are hurt and killed doing construction than in any other industry.

Construction site injuries frequently result from objects or workers falling from elevated areas,  workplace motor vehicle machinery and equipment accidents (including trucks, cranes and forklifts), electrocution, fires, explosions, exposure to harmful substances and environments, a lack of excavation shoring, and unsafe ladders.

Construction Site Falls and Scaffolding Accidents

The most common causes of construction site catastrophic falls and deaths include unprotected sides and wall openings, holes in floors and unguarded protruding steel rebars, and falls off the edges of - - or holes in - - roofs.

An estimated 2.3 million construction workers work on scaffolds and each year 4,500 workers are injured in - - and 60 die as a result of - - scaffolding accidents.

Scaffolding accidents often involve falls due to lack of fall protection, instability or overloading caused scaffold collapse or tip-over, or being struck by falling tools, work materials or debris.

Structural Collapse Accidents

Structural collapses occur both in existing structures or structures being built.

For buildings under construction, structural collapse accidents require examining construction codes and blueprints to determine:

            ° whether structure was being built properly according to its design or if it's design was                             improper;  

            ° were the foundation and building materials appropriate;

            ° was the building properly braced during construction; and

            ° was it engineered to be structurally stable.

For an existing structure's collapse accident investigation involves ascertaining the structure's age, how well it was maintained, and whether owner was aware of any potential safety hazards and, if so, what it did - - or failed to do - - to address these dangers.

Liability and Damages in Construction Site Accidents

Workplace injuries range from broken limbs to severe brain and spinal cord injuries to death. 

Further, construction site injuries often devastate the injured worker's family members whom may have depended on his income and now are responsible for his care. 

The property's owners, general contractors, contractors, construction managers, construction companies and equipment manufacturers may all be liable for compensation for pain and suffering, emotional trauma, medical costs, lost income and future earnings.

Defective Road Conditions

Sometimes it's the road - - and not the driver or vehicle - - that causes the car accident.
 

The American Society of Civil Engineers' ("ASCE") “2010 Report Card for Pennsylvania’s Infrastructure” gave our roads - - which are the state and local municipalities' responsibility - - an overall D-minus grade rating 38% of Pennsylvania's roads as "fair" or "poor".

 

Defective road conditions like potholes and sinkholes can cause a driver to lose control of his vehicle leading to accidents resulting in serious personal injury or death.

 

Accident Causing Defective Pennsylvania Roads

 

According to ASCE, Pennsylvania's 40,000 miles of state roads and 76,000 miles of local roads are among the nation's oldest and have exceeded their design capacity including cracking and expanding because of temperature and weather changes and rapidly deteriorating due to chemicals used for snowy/icy conditions.

 

Further, ASCE says that 27% of Pennsylvania’s 22,280 bridges are structurally deficient deeming 17% as "functionally obsolete".

 

Potholes, crumbling roads giving way to soft shoulders, drainage problems causing water or ice hazards, and other defective roadway conditions can lead to car accidents, injury and death.

 

Governmental Liability for Defective Road Conditions

 

Although Pennsylvania’s Sovereign Immunity Act generally bars suits against the government, dangerous highways conditions created by potholes, sinkholes or similar conditions are exempted.

 

Thus, the Commonwealth and local governmental entities are liable if the dangerous condition creates a reasonably foreseeable risk of injury that’s suffered by a motorist and the government had actual written notice of the "dangerous condition" sufficiently prior to an accident to protect against it.

 

Pennsylvania law allows lawsuits against the government seeking damages for past and future loss of earnings and earning capacity, pain and suffering, and medical and dental expenses and loss of consortium.

 

Unlike most personal injury claims, lawsuits against government entities for injuries caused by dangerous road conditions require written notice of the claim made within six (6) months of the accident.

 

Product Liability for Defective Road Conditions

 

If a defective product - - such as asphalt or pavement supplied by a private contractor - -was a “substantial factor” in causing the injury, a product liability lawsuit may be filed.

 

Anyone in the product's chain of distribution can be held liable, including manufacturers, wholesalers, distributors, and retailers.

 

Further, because Pennsylvania is a “strict liability” state, claimants need not show that someone’s negligence caused their property damage or personal injury.  Instead, claimants must only show the defect's existence and its relationship to the harm that was caused.

Teleradiology: Misleading Patients As To Who is Reading Their Film

Although patients know that hospitals have third parties perform laboratory testing, few question the source of their CT scan's reading.

However, recognizing the financial advantages of outsourcing radiological services, hospitals have begun to outsource both beyond their own institution and the United States' borders.

Beyond misleading patients as to whom is providing their care, a patient injured through a teleradiologist not subject to the hospital's credentialing requirement suboptimal reading may have corporate negligence and informed consent claims case against the hospital.

What is Teleradiology

As a result of technological improvements, imaging can be easily transmitted to remote locations preventing physicians from travelling back to the hospital to interpret a study or film that could be done on their home computers.

When teleradiology studies are provided by a Pennsylvania-licensed radiologist directly affiliated with the institution at which the patient is receiving care, teleradiology can be a cost-effective way of improving patient care.

Unfortunately, because digital technology also enables transmitting the images anywhere around the world, overseas radiologists are often used to do interpretations.

Beyond the lack of communication between the clinician and doctor reading the study, the interpretation-providing-overseas-physician's frequent lack of credentials makes teleradiology an inferior form of care.

No Current Bar Against Teleradiology

Although patients and their families often select an institution based on its overall reputation, hospitals are not presently required to disclose the practitioner's interpreting the radiology studies location and credentials.

Further, to get around Medicare's refusal to pay for medical services performed outside the United States, offsite radiology services often perform "preliminary interpretations" contracted and paid for by a local radiology group servicing the hospital which follows up the with a "final reading" that is billed to Medicare.

"Corporate Liability" and "Lack of Informed Consent" Claims

Although there is no presently recognized requirement that treatment recommendations conveyed to the patient or family include a disclosure that they are based upon interpretations provided by practitioners not directly affiliated with the hospital or located in the United States, patients injured as a result of a teleradiologist's suboptimal reading may have corporate negligence and lack of informed consent claims against the institution.

In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), Pennsylvania's Supreme Court recognized that hospitals are directly liable to patients under the doctrine of corporate liability establishing a duty that the hospital owes directly to the patient to oversee all persons who render care and to adopt adequate policies ensuring quality care.

Because corporate liability involves hospital's direct negligence (as opposed to vicarious liability for hospital employee's act) and is based on the institution's negligent acts arising from its policies, an injured party need not establish a doctor's negligence to prevail under a corporate liability theory.

Further, in 2002, Pennsylvania's law of informed consent was legislatively changed to include misrepresentation where a patient was misled as to the doctor's training, experience or credentials.

The use of teleradiology without full disclosure is no less misleading to a patient than a surgeon exaggerating his or her experience performing a procedure and goes to the heart of a hospital's duty to its patients.

Marcellus Shale Accidents

The shale gas industry's rapid expansion has introduced risks of serious accidents, explosions, worker injuries, property damage and environmental harm. 

Specifically, Marcellus Shale exploration and drilling causes industrial accidents including well blowouts, fires, methane leaks, loss of well control and gas migration.

 

Marcellus Shale 

Marcellus Shale -- a deep underground rock formation extending from Ohio and West Virginia into Pennsylvania -- holds the United States largest natural gas reserve comprised of hundreds of trillions of cubic feet of natural gas.

 

Although geologists have known about this massive reserve for years, recent drilling innovations including hydraulic fracturing ("Fracking"), coupled with higher energy prices, have greatly increased mining of Marcellus Shale natural gas.  

According to the Pennsylvania Department of Environmental Protection, 2,500 Marcellus Shale drilling permits were issued between 2007 and 2009 and 5,000 permits were issued in 2010.

 

Fracking

 

Each project involves constructing a "well pad" and drilling a "well bore" to depths of up to 6,000 feet.

 

The majority of Marcellus Shale wells use “fracking”, high pressure pumping of millions of gallons of chemically-treated water mixed with sand deep into the ground to break up the shale and release trapped natural gas.

 

Because it involves withdrawing millions of gallons of freshwater, contaminates water and groundwater wells and results in improper drilling fluid and wastewater disposal, Fracking raises significant environmental concerns.

 

Drilling fluid wastewater spills or leaking into holding pits pollutes rivers, streams and aquifers killing fish and contaminating local water supplies.

 

Marcellus Shale Accidents 

The oil and gas exploration industry's growth has strained existing state regulatory safeguards exposing property owners, businesses and workers to accidents, injuries and environmental damage.

Drill operators often encounter unexpected natural gas pressures in areas that haven’t been drilled previously causing blowouts and injuries.  Further, sparks from a drill bit can ignite trapped methane, a highly volatile gas, severely burning workers.

 

Natural gas also migrates underground from improperly constructed wells, building up to explosive pressure beneath houses and buildings.

 

Injuries in a Marcellus Shale well drilling accident often result from the employer's negligence or lack of workplace safeguards.  

Further, those whose property is damaged or contaminated by well drilling, may have claims against a drilling rig operator or gas exploration companies.

Texting-While-Driving Accidents

The National Highway Traffic Safety Administration describes sending or reading a text message while operating a motor vehicle as “by far the most alarming distraction” leading to death, injury and property damage on our nation’s highways.

Beyond forming a crime, texting-while-driving is negligence the victims of which are entitled to be compensated for their injuries and financial losses.

Texting-While-Driving Accidents

According to the U.S. Department of Transportation ("DOT"), texting while driving creates a 23 times greater crash risk than driving while not distracted.

According to the DOT, sending or receiving a text removes a driver’s eyes from the road for approximately 4.6 seconds, which, when traveling at 55 miles per hour, is like driving the length of a football field blindfolded.

Further, due to immaturity and lack of experience behind the wheel, younger drivers are more likely to text while driving with 23% percent of a 2011 AAA Foundation survey respondents between 17 and 26 admitting that they or their friends texted while driving.

The Pennsylvania Department of Transportation revealed that 13,000 crashes occurred between 2005 and 2010 involving 16 to 19 year old distracted drivers resulting in 60 fatalities. 

Texting-While-Driving is a Crime in Pennsylvania

Because of the dangers posed by distracted driving, it is a crime in Pennsylvania to use a cell phone,  IPAD, or portable computer to send, read or write a text message, instant message, email or other written communication while operating a vehicle. 

Because texting while driving is a form of distraction that a driver chooses, texting accidents comprise reckless or negligent driving. 

If a texting driver causes death, injury, or property damage, crash/collision victims have the right to seek compensation for their losses.

Handling Texting-While-Driving Cases

Most critical to prevailing in a texting-while-driving accident case is conducting an independent investigation to determine how the accident occurred including obtaining cell phone records to ascertain whether a driver was texting at the time of the crash.

The Schain Law Firm works closely with a network of medical experts, economists and life-care planners who can fully document the extent of a texting accident victim’s injuries and financial losses.

Black-Box Recorders in Automobiles

Most drivers are unaware that their vehicle is equipped with a “black box” gathering information regarding the events immediately before and during a motor vehicle accident.
Eighty five percent (85%) of current automobiles have event data recorders (EDR), more commonly known as black boxes, installed in them.

The National Highway Traffic Safety Administration (“NHTSA”) defines an EDR as a device recording a “vehicle's dynamic, time-series data during the time period just prior to a crash event or during a crash event, intended for retrieval after the crash event."

On March 14, 2012, the U.S. Senate passed “Moving Ahead for Progress in the 21st Century Act” (“MAP-21”), a transportation bill making event data recorders mandatory in all new cars and there is pending Pennsylvania EDR legislation - - the Pennsylvania Motor Vehicle Event Data Recorder Act - - currently under review by the Committee on Transportation.

While those protective of privacy may not support a law making black boxes mandatory, in all vehicles, data obtained from an EDR can help establish liability and deconstruct a motor vehicle accident streamlining accident claims and litigation processes, facilitating prosecution of drivers disobeying traffic laws and resulting in improved vehicle and roadway design.

Background on Black Boxes in Cars

Although historically identified with airplane crashes in which downloaded data was used by aircraft accident investigative engineers, the use of black boxes in automobiles dates to the early 1970s, when the National Transportation Safety Board (“NTSB”) recommended that automobile manufacturers and the NHTSA use onboard sensors and recorders to gather crash data.

Within a few years, General Motors began installing early versions of EDRs in its vehicles mainly used to control airbag deployment and document crash severity data.

Black boxes became more sophisticated recording data from minor accidents during which airbags did not deploy and by 2005, General Motors, Ford, Isuzu, Mazda, Mitsubishi, Subaru and Suzuki were voluntarily equipping their vehicles with EDRs.

Recent Vehicular Black Box Legislation

Beyond making EDRs mandatory in all vehicles, starting in 2015, MAP-21 requires manufacturers to make EDR data accessible with commercially available equipment.

Starting with 2013 models, EDRs must keep a record of 15 discrete variables in the seconds before a crash including the car's speed, how far the accelerator was pressed, the engine revolutions per minute, whether the driver hit the brakes, whether the driver was wearing a safety belt, and how long it took for the airbags to deploy.

On March 10, 2012, the Pennsylvania Motor Vehicle Event Data Recorder Act was filed and transferred to the Committee on Transportation and requires that a manufacturer of a new motor vehicle sold or leased in Pennsylvania disclose both whether the car is equipped with ,and what type of data can be recorded by, an EDR.

The pending act also provides an outline for information retrieval, requiring consent from the motor vehicle owner to download data and provides that illegally downloaded information is inadmissible as evidence in any civil, criminal or administrative action and is insufficient to support an adjudication of the motor vehicle accident’s cause unless corroborated by other evidence.

Vehicular Black Box Data’s Impact and Privacy Protections

If made readily available, this information gathered by EDR’s will greatly affect criminal and civil cases involving motor vehicle accidents.

Specifically, accident claims and litigation processes should be streamlined for insurance companies leading to settlement and saving insurers millions of dollars in litigation fees.

Additionally, retrieved data can establish the speed of vehicles and lead to the prosecution of drivers disobeying traffic laws.

Further, increased awareness of, and accessibility to, black-box data will result in improved vehicle and roadway design and lead to safer driving.

Although previously unclear if black-box data to belonged to the car owner or to the manufacturer, MAP-21 establishes that EDR compiled data from belongs to the car owner.

Therefore, outside of a court order granting law enforcement access, where an emergency medical team needs the data, or in the event of an NTSB investigation, insurance companies would be unable to collect EDR data without owner consent.

Electronic Medical Records

Within the next few years, all health care providers will transition from paper charts to electronic medical records (“EMRs”) and operate exclusively within an EMR system.

ESI and EMR

Both the recently enacted “Patient Protection and Affordable Care Act” and “Health Information Technology for Economic and Clinical Health Act” and monetary incentives and compliance deadlines created by the Centers for Medicare and Medicaid Services are spurring health care providers to hurriedly transition to EMRs.

Beyond amassing and organizing existing Electronically Stored Information (“ESI”), EMRs will have an active role in patient treatment ranging from enabling providers to interface to offering clinical decision support.

Further, while sharing core functionalities, more sophisticated EMR systems may suggest courses of treatment upon an analysis of medical data, remind a provider of clinical practice guidelines or automatically warn of a patient's allergies or a dangerous combination of medications.

EMR and Personal Injury Litigation

EMRs widespread adoption may aid personal injury litigation by both placing unwieldy amounts of information in a user-friendly and searchable format and "definitively" provide the facts surrounding a patient's care.

EMRs may also alter fundamental elements of medical malpractice litigation including increasing the number of parties to sue, the costs of bringing a claim and the amount of time needed to resolve a dispute.

For example, because copying and pasting information from EMR to EMR is a basic system function, perpetuating an existing error or inaccuracy that will follow a patient from provider to provider will increase. Thus, errors like omitting a medication allergy during one provider's treatment may result in an adverse event through the course of treatment with other providers.

This error’s origin may only be discovered well into a claim’s litigation necessitating amending pleadings and creating liability disputes.

Extending liability to an EMR vendor is inevitable and will require significant technical discovery further complicating an already complex medical malpractice claim.

Further, beyond carefully choosing an EMR vendor and system, health care providers will need to avoid contractual agreements immunizing from technical errors (like software bugs and hardware malfunctions) causing adverse events.

EMR use may also change how medical malpractice standards of care are defined.

Providers implicated in an adverse event may be weighed and measured against a sophisticated EMR system providing differential diagnoses or recommending courses of treatment.

If a provider deviates from an EMR's recommended course of treatment, a jury may equate it to deviating from a legally defined standard of care requiring the defense to provide both a standard of care set forth by an expert and a justification for deviating from EMR-generated treatment recommendations.

Further, providers not using EMR systems may face exposure for failing to adhere to the diagnoses or courses of treatment that the EMR system would have provided.

Legislation has been proposed in Pennsylvania’s State House to provide medical malpractice claim immunity to suppliers of medical data to electronic databases and on the federal level, the proposed “Safeguarding Access for Every Medicare Patient Act” seeks to create legal protections for providers if an adverse event occurs as a result of EMR errors.