... and Justice for All

Pregnant and New Mothers Endangered by Proposed FDA Rule

Pregnant and new mothers are endangered by a proposed FDA rule that will allow drug companies to omit information on their warning labels about dangerous side effects of their products.  For leaving out this important information the drug companies would receive the prize of immunity from lawsuits through the doctrine of preemption.  That's justice under the Bush Administration: create a rule that allows drug companies to harm pregnant and new mothers and get away scot-free.  The ever-vigilant American Association for Justice has protested adoption of the proposed rule that you can read by clicking here. 

Robert L. Abell
www.RobertAbellLaw.com

Delays Caused By Insurance Companies Harm Patients, Doctors Report

Doctors responding to a survey investigation conducted by the Toledo Blade reported that 14% of their patients had suffered "serious harm or injury" because of delays in care caused by their patients' insurance companies, see "Not What the Doctor Ordered: Delays, Denials Thwart Patients Hoping for Help."  920 doctors, including members of both the American and Ohio Medical Association, responded to the survey.  Nearly all -- 99% -- reported that insurance companies had interfered with their clinical decisions regarding treatment of their patients. 

There is often no real remedy or relief for a patient or a patient's family that is killed or seriously injured because their insurance company would not pay for the treatment and care their doctor directed.  That is because most people's medical insurance comes through their job and therefore is covered by a federal law known as ERISA (stands for Employee Retirement Income Security Act).  When an insurance company denies medical treatment in this type situation, the only remedy that the insured patient (or the insured patient's family) can recover is the cost of the treatment.  And that will occur only if the insurance company's decision is deemed "arbitrary and capricious."  If the patient dies as a result of the insurance company's arbitrary and capricious denial of the treatment, there are no damages recovered by the family, no lost income or anything but the cost of the denied treatment.  ERISA is protection for outrageous insurance company practices.

Robert L. Abell
www.RobertAbellLaw.com

Pain & Suffering Damages of $100,000 for Amputee Vacated By Court As Too Low and "A Miscarriage of Justice"

Finding a jury's award of $100,000 in pain and suffering damages amounting to $8 a day for a multiple amputee as too low and a "miscarriage of justice" an appeals court in New Jersey sent the case back for another trial in Walsh v. Disciglio (click here to read the opinion issued August 19, 2008).  The plaintiff, Walsh, was subjected to seven surgeries including three amputations as she lost more and more of a leg.  The appeals court called the jury's compensatory damages award "grossly insufficient and a miscarriage of justice." 

Robert L. Abell
www.RobertAbellLaw.com

Hospital Death Rates Online

Patients and their families may review online hospital death rates for heart attacks, heart failure and pneumonia.  The federal government's Centers for Medicare and Medicaid Services has posted the statistics at www.hospitalcompare.hhs.gov.  Also posted are statistics on the percentage of each hospital's patients getting quality care for various illnesses and ten measures of patient satisfaction. 

Robert L. Abell
www.RobertAbellLaw.com 

Drug Makers Should Be Liable For Defects Under State Law, New England Journal of Medicine Editors Argue To Supreme Court

Approval of drugs by the Food and Drug Administration (FDA) should not preempt any liability under state tort laws for pharmaceutical manufacturers, editors of the New England Journal of Medicine argue in a brief to the United States Supreme Court.  One of the most closely watched cases of the Supreme Court's upcoming term is Wyeth v. Levine.  Levine, a musician, lost an arm after an injection of the nausea drug, Phenergan.  She sued Wyeth, claiming that it failed to adequately warn of the drug's risks and she won a $8.6 million judgment in a Vermont trial court.

Wyeth argues that it is insulated from any liability for Levine's injuries because the FDA approved Phenergan.   This is the legal doctrine of "preemption." 

The NEJM editors argue that "the FDA the FDA is in no position to ensure the safety of prescription drugs.  Not only is the FDA seriously hampered in its ability to determine the risks of drugs before they are approved for sale, but it has proven inadequate to the task of addressing hazards that only become apparent after a drug has been widely marketed to an unsuspecting public. Post-approval dangers posed by drugs placed into the market are unfortunately quite common. However, the FDA’s ability to either anticipate these risks or react expeditiously once they have been revealed has been limited by serious information-gathering constraints in both pre- and postapproval settings." The brief can be read by clicking here.

Two former FDA Commissioners, Donald Kennedy and David Kessler, have also submitted a brief supporting Levine.  They argue that the pro-preemption position advanced by the drug companies and the Bush Administration "threatens to undermine, not advance, the underlying goal of our nation’s drug safety laws, which is 'to protect consumers from dangerous products.'”  A copy of their brief may be read by clicking here.

Robert L. Abell www.RobertAbellLaw.com

Railroad Crossing Safety Requires "Active" Warning Systems

Research shows that a stop sign is the most dangerous type of warning system at a railroad crossing.  The safest is an "active" warning system which include flashing lights and gates.  Despite this research, the Federal Highway Administration proposes only to require a stop or yield sign at every railroad crossing in the country. 

Stop signs at railroad crossings pose two types of specific dangers.  One is that large vehicles, such as school buses, require about 10-15 seconds to clear a crossing.  This may not be enough time to clear the crossing before an oncoming train would arrive, even one that could not be seen when the vehicle began crossing.  The second is that some stop signs are placed too far from the crossing to allow a clear line of sight to see if there is an oncoming train.  These problems are why the National Cooperative Highway Research Program has strongly and continually recommended that engineering analysis determine the safest warning system at each railroad crossing.  The American Association for Justice has urged the FHWA to drop this proposal based on decades of research and experience and its letter may be reviewed here. 

This proposed agency rule also offers an illustration of the continuing efforts to use the preemption doctrine to insulate corporations from accountability, responsibility and liability.  The preemption doctrine would hold that installation of a stop sign and the compliance with federal regulation that it would entail would bar any liability under state law for an unsafe crossing.  That is no justice: issue an unsafe federal regulation that encourages dangerous practices and prevents any responsibility or liability. 

Robert L. Abell
www.RobertAbellLaw.com

Beef Recalled By Whole Foods

Beef processed at Nebraska Beef, one of the country's biggest meat processors, was recalled by the Whole Foods Market on Friday.  According to a story in the Washington Post, it is the second time in two months that beef processed by Nebraska Beef had to be recalled owing to e coli outbreak concerns, "Whole Foods Recalls Beef Processed At Plant Long at Odds With USDA."  Last month more than 5 million pounds of beef processed by Nebraska Beef was recalled following an e coli outbreak in seven states.

Over the course of the last six years the USDA and Nebraska Beef have been on a merry-go-round of citations issued by the agency and lawsuits.  The citations have been for feces on carcasses, clogged meat wash sinks, and violation of regulations aimed at preventing spread of mad-cow disease,  The company has responded with lawsuits accusing the agency with bias. 

Nebraska Beef was awarded $7.5 million in tax subsidies by the Nebraska state government.  This while battling the USDA along with neighbors of the plant who have complained about manure from the plant being strewn in the streets.  In 2002, the National Labor Relations Board ruled that Nebraska Beef had violated federal law by its actions to prevent unionization of the plant's workforce. 

Robert L. Abell
www.RobertAbellLaw.com

State Farm To Pay $74 Million More To Settle Katrina Claims

State Farm Insurance Company has agreed to pay an additional $74 million to settle a lawsuit regarding its handling of Hurricane Katrina claims in Mississippi, Mississippi Attorney General Jim Hood announced Wednesday reports the Jackson Clarion-Ledger.  In addition, State Farm has agreed to notify some 150 claimants that their claims may be re-evaluated. 

Robert L. Abell
www.RobertAbellLaw.com

Consumer Product Safety Whistleblower Protection Passed by Congress

Whistleblower protection for employees reporting consumer product safety issues was passed today by Congress as part of the Consumer Product Safety Reform Act.  This law, which now awaits President Bush's signature, includes the following provisions:

• employees of product manufacturers, distributors and retailers are covered
• protection for employees who report product safety issues to their employer, to the federal government or to their state attorney general
• employees who refuse to participate in violations of consumer safety laws are protected
• a limitation period of 180 days, complaints may be filed with the federal Secretary of Labor but may be moved to federal court after 210 days if no resolution
• remedies including reinstatement to employment, back pay, compensatory damages, attorneys fees and costs

This law represents an important step in improving the safety of consumer products.  President Bush should sign the bill.

Robert L. Abell
www.RobertAbellLaw.com