The Injury Board Regional Blogs

Criminal Libel on the Way Out

Linda Chalat — Wed, 22 Feb 2012 20:30:24 GMT

Senate Bill – SB102 – Concerning the repeal of the crime of criminal libel. The bill repeals the crime of criminal libel, effective September 1, 2012. On February 14, the Judiciary Committee referred the unamended bill to the full Senate for consideration on 2nd Reading. On Friday, February 17, the Senate passed the bill on 2nd Reading.

So what does that mean for the citizens of Colorado? Probably not much since the far more common offense is the tort of libel. Libel is an untruthful statement about a person, published in writing or through broadcast media, that injures the person's reputation or standing in the community. Most states have retraction statutes under which a defamed person who fails to seek a retraction from the publisher, or who seeks and obtains a retraction, is limited to compensation equal to the actual (or special) damages.

The injured person can bring a lawsuit against the person who made the false statement. Libel and slander (an untruthful statement that is spoken, but not published in writing or broadcast through the media), are both considered forms of defamation.

Occasionally one hears the assertion of libel per se. Libel per se is asserted when false statements that are so widely understood to be harmful that they are presumed to be defamatory, such as an accusation that a person has committed a crime, has a dreaded disease, or is unable to perform one's occupation.

Public figures, including elected officials and candidates, can only prevail in defamation lawsuits if they can show that the defamation was made with knowledge that it was false or with reckless disregard for the truth.

Originally posted at InjuryBoard by Linda Chalat

Wright Medical Modular Neck Fracture Hip Implant Lawsuit Filed

Joe Saunders — Wed, 22 Feb 2012 17:10:37 GMT

Today Saunders & Walker participated in the filing of a lawsuit in Phoenix Arizona involving the Wright ProFemur Total Hip System. This is a different type of hip implant lawsuit than most in the media lately. Most of the recent discussion and litigation concerning hip implant failures has involved metal on metal hip implants where the implants slowly failed as a result of elevated chromium and cobalt levels causing damage to the tissue.

The failure of the Wright ProFemur implant in the case of Dale Parcell which was filed today in Phoenix was a sudden break of the neck of the implant that connects the femoral stem with the femoral head. This failure caused Mr. Parcell to collapse to the ground in extreme pain and undergo emergency surgery.

The lawsuit alleges and the medical literature provides evidence that Wright Medical had been aware for years that the titanium modular necks were corroding and fracturing, In fact, in 2009 Wright Medical changed the composition of the modular necks from titanium to cobalt chromium. However, there was never a recall announced of the titanium stems.

U.S. Food and Drug Administration (FDA) regulations require that a manufacturer of a medical device such as the ProFemur hip make a determination as to whether the product change is a change that is intended to reduce harm. If so, the manufacturer is required to report that to the FDA. Such a report likely would have triggered a recall notice. It appears that Wright Medical did not make such a report to the FDA.

It is only when a recall is instituted that medical device manufacturer such as Wright Medical is required to disclose how many people have been implanted with these products. Prior to recall product sales and implantation numbers are proprietary company information and can be kept secret.

This lawsuit should provide a way to find out what happened here and how many patients have this hip implant and could be at risk of sudden and painful failure.

Originally posted at InjuryBoard by Joe Saunders

Grand Rapids Considers Mandatory Residential Sprinklers

Nolan Erickson — Wed, 22 Feb 2012 14:01:09 GMT

The city of Grand Rapids, Michigan is in the early stages of investigating whether to incentivize or require interior sprinklers in new homes. Although early studies indicate fire suppression is safer and cheaper than traditional fire response in the long run, some people are balking at the estimated price tag of $250 million.

Interior sprinklers are not the only alternative officials are looking at. City commissioners recently approved spending $900,000 on three small “quick response” fire trucks in a unanimous vote. The quick response trucks should be easier to mobilize in an emergency and are part of a trial program aimed at building an adequate yet financially sustainable approach to fighting fires. Although the pilot program was adopted unanimously, many in the community remain skeptical about the change.

Last year in Grand Rapids, 5 people died and nearly 30 were injured in fires that also caused about $9 million in property damage. The city has experienced a rash of house fires in recent years, necessitating a cost-effective approach to a long term solution for West Michigan’s hub.

Originally posted at InjuryBoard by Nolan Erickson

Consumer Alert: FDA Investigates Causes of Deaths and Injuries Linked to Jack3d and OxyELITE Pro

Michael Monheit — Wed, 22 Feb 2012 13:50:30 GMT

The line between “dietary supplement” and “drug” is a fine one. Drugs are subject to FDA approval and regulations; dietary supplements are not. That’s an important distinction when it comes to the health and safety of individuals who opt to take a given substance. And it’s a distinction that often is blurred when it comes to performance enhancing substances that are so appealing to athletes or anyone trying to get in shape. Two of those substances—Jack3d and OxyELITE Pro—have recently come under close scrutiny, bringing to light the inadequacy of the Dietary Supplement Health and Education Act (DSHEA) as well as FDA oversight.

According to an article in the New York Times, the United States Army is investigating whether these types of “dietary supplements” played a role in the death of two soldiers last year. Both died from heart attacks and toxicology reports reveal the presence of dimethylamylamine (DMAA)—the active ingredient in these products—in their blood. Aside from those two deaths, there are also reports of liver and kidney failures, seizures, loss of consciousness and rapid heartbeat from users of DMAA. The evaluation is still ongoing, but In the meantime, the Defense Department has removed all products containing DMAA from stores on military bases. And the FDA is now launching an investigation into both Jack3d and OxyELITE Pro.

Whether DMAA is a supplement or a drug is a debate with manufacturers and retailers on one side and safety advocates on the other. The maker of USPlabs describes the products as supplements derived from naturally-occurring compounds found in plants, producing an effect similar to caffeine. At the same time, organizations like the World Anti-Doping Authority which regulates drug use by Olympic athletes, and several professional sports leagues list DMAA as a banned stimulant. Health experts as well describe DMAA as a powerful stimulant drug similar to amphetamines.

The take-away lesson from all of this is that until the regulatory agencies get their act together, consumers of these products need to be on alert. For now, safety in using DMAA-containing products unfortunately falls on the shoulders of the consumer.

Originally posted at InjuryBoard by Michael Monheit

New Guidelines Proposed To Reduce Distracted Driving

Brett Emison — Wed, 22 Feb 2012 11:14:00 GMT

The National Highway Traffic Safety Administration (NHTSA) has issued to automakers new guidelines regarding the installation and use of in-vehicle electronic devices, specifically those devices “that require use of the hands and/or diversion of the eyes from the primary task of driving.” The proposed voluntary guidelines would apply to communications, entertainment, information gathering and navigation devices or functions that are not required to safely operate the vehicle.

These recently proposed guidelines represent Phase I of a potential three phase program to address technology in automobiles. The first phase guidelines seek to limit the time and/or complexity of completing tasks not related to driving the vehicle, specifically:

Reduce complexity and task length required by the device;
Limit device operation to one hand only (leaving the other hand to remain on the steering wheel to control the vehicle);
Limit individual off-road glances required for device operation to no more than two seconds in duration;
Limit unnecessary visual information in the driver's field of view;
Limit the amount of manual inputs required for device operation.

According to the U.S. Department of Transportation, “Phase II proposed guidelines that might address devices or systems that are not built into the vehicle but are brought into the vehicle and used while driving, including aftermarket and portable personal electronic devices such as navigation systems, smart phones, electronic tablets and pads, and other mobile communications devices. A third set of proposed guidelines (Phase III) may address voice-activated controls to further minimize distraction in factory-installed, aftermarket, and portable devices.”

60 for Safety

In related news, a group of more than 750 trial attorneys from across the country have volunteered to speak at schools across all 50 states to spread the word about distracted driving to young drivers. The group has set a goal of speaking to more than 100,000 students in one week during National Distracted Driving Awareness Month (April 2012).

[More on Distracted Driving]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Pass the Knife and the Cocktail? 15% of Doctors Report Alcohol Abuse

David Mittleman — Wed, 22 Feb 2012 09:05:44 GMT

Surgery is a very delicate process and you obviously want a very skilled and focused surgeon when going under the knife. Needless to say, you would probably feel more than a little worried if you knew your surgeon had been drinking before performing your surgery. However, a recent survey revealed that 15% of U.S. surgeons report alcohol use disorders such as alcohol use and dependence.

The online, anonymous poll also found that alcohol abuse was more prevalent among female surgeons with 26% reporting an alcohol problem and 14% of male surgeons reporting a problem. Those figures exceed the percentage of the general population reporting an alcohol abuse problem, which ranges between 8 and 12%. However, Dr. Michael Oreskovich, a clinical associate professor of psychiatry and behavioral sciences at the University of Washington in Seattle says that the number of patients harmed as a result of an impaired surgeon is very low--something like one in 10,000. But he does admit that the study points to an important point: why surgeons don't undergo the same random drug screenings that other safety-sensitive professionals have to take.

The survey researchers hoped that their findings will illuminate the fact that surgeons are not immune to the same problems that other people face and that this will take away some of the stigmatizing nature of the problem, leading surgeons to seek help before it's too late.

Originally posted at InjuryBoard by David Mittleman

Scary Side Effects for Popular Prescription Medications

Ed Normand — Wed, 22 Feb 2012 09:04:00 GMT

Most people accept the fact that there are side effects for almost all prescription medications. Often, these side effects are minor or only effect a small percentage of the population. But doctors and pharmaceutical companies still have a responsibility to the public to protect them from dangerous or defective drugs. Here are some popular prescription medications that can come with some serious side effects, courtesy of Men’s Health:

Ambien. This popular prescription medication is a sleep aid, although it is becoming well known for its serious side effects. Some of the effects include “sleep eating,” memory loss and other odd behavior in general. The Food and Drug Administration (FDA) made the company add this label to Ambien’s Medication Guide: “After taking AMBIEN, you may get up out of bed while not being fully awake and do an activity that you do not know you are doing. The next morning, you may not remember that you did anything during the night.” Yikes.
Chantix. This one is supposed to help patients who are trying to stop smoking. Chantix is used to help curb cravings for cigarettes. According to one study with over 3,000 participants, patients reported feeling suicidal thoughts and depression. The FDA issued the following warning for patients prescribed this medication: “Serious neuropsychiatric events have been reported in patients taking CHANTIX—as well as a lengthy list of side effects, including: serious skin reactions, cardiovascular events, night terrors, insomnia, nervous system disorder and eye disorders.” Okay, so maybe night eating doesn’t sound so bad after all.

Have you or a loved one experienced side effects from any of these drugs? You may be entitled to damages.

Wooten, Kimbrough & Normand—Orlando personal injury attorneys.

Originally posted at InjuryBoard by Ed Normand

Golf isn't supposed to be dangerous, is it?

Kevin Duffan — Wed, 22 Feb 2012 08:50:43 GMT

Sometimes serious legal issues can arise from the most unlikely of situations. Like this news story about a man who was stabbed with a golf club shaft during a brawl that broke out on a golf course in Fort Worth over whether one group of golfers could play through a group in front of them. Sure, sports can sometimes bring out the worst in us as our competitive streak makes its appearance and emotions run high. But this golf course brawl takes it to another level.

As reported by the Star-Telegram, 48-year-old Clay Carpenter was part of a group of golfers who tried to play through a foursome ahead of them. The result was a physical fight during which Carpenter was stabbed in the leg, suffering a punctured femoral artery and massive blood loss. Now he faces potentially losing his leg and there is an open criminal investigation into what happened.

Criminal penalties might mean the perpetrator is punished for the assault, but what about recovery for the injured victim who has certainly suffered serious physical and emotional harm? And how does that recovery work when there’s no obvious insurance at play? After all, this wasn’t a car accident where auto insurance kicks in; nor was it a trip and fall on the defendant’s property where property insurance might cover the injury. Instead, it was what is known as an intentional tort known as battery.

The good news for victims in this unimaginable situation is that recovery might still be possible even in the absence of insurance. The lack of insurance certainly isn’t a bar to bringing a personal injury lawsuit; it just means that if the plaintiff prevails, there may be additional obstacles to actually getting paid, unless of course the defendant happens to have deep pockets. But armed with a court order, strategies like property seizures or garnishing the defendants’ wages may become viable.

About the Editors: The Shapiro, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.

Originally posted at InjuryBoard by Kevin Duffan

Teen Driving Deaths Climbing According to Governors Highway Safety Association

Greg Webb — Wed, 22 Feb 2012 08:00:00 GMT

The members of the Governors Highway Safety Association (GHSA) are state highway safety coordinators who provide and share data with the National Highway Traffic Safety Administration (NHTSA). Part of the NHTSA’s mission is to monitor the trends in traffic safety across the US. Barbara Harsha, executive director of GHSA, believes that Congress needs to do more to discourage teen driving accident fatalities because during the first six months of 2011, teen traffic fatalities increased after a period when “teen deaths and overall highway fatalities have been in steady decline.” The jump in teen deaths worries Harsha and the GHSA.

Harsha wants Congress to provide financial incentives to states to get teenagers to use safety belts. She believes “Congress should fund distracted-driving efforts aimed at teen drivers,” [1][1] as more teenagers die in automobile accidents than any other way. U.S. Department of Transportation Secretary Ray LaHood recently called distracted driving “an epidemic on America's roadways.”

According to DOT’s distracted driving website, http://www.distraction.gov, young people are among the most likely to text and talk on cell phones while behind the wheel, and people who text using their cell phones while driving are 23 times more likely to have an accident than people who don’t. Using cell phones while driving in some states is now illegal, and powering down cell phones while driving continues to be recommended, but getting teens to buy-into the use of safety belts and the non-use of their phones is no easy task.

The U.S. Department of Transportation has been involved in campaigning against distracted driving since 2009, with public service announcements displaying slogans like "One Text or Call Could Wreck It All,” “Stop the Texts, Stop the Wrecks!” or “Texting and Driving Don’t Mix” and has organized events and challenges such as, “No Phone Zone” events for teens. Harsha believes that more public awareness campaigns directed toward teen’s use of safety belts are needed and financial incentives to states would help achieve this.

In the coming months, many lawyers nationwide, including this one, are attempting to educate teens (and adults) about the hazards of distracted driving. It is no secret that texting and emailing while operating a motor vehicle are the primary culprits for many teen accidents, injuries, and fatalities. For more information on these educational projects, visit the following websites: http://www.EndDD.org and http://www.60forsafety.org.

[1][1] “Teen deaths in car crashes climb”, Halsey, Ashley III. The Washington Post, February 17, 2012, http://mobile.washingtonpost.com/rss.jsp?rssid=615&item=http%3a%2f%2fwww.washingtonpost.com%2flocal%2ftrafficandcommuting%2fteen-deaths-in-car-crashes-climb%2f2012%2f02%2f17%2fgIQAoUW9JR_mobile.mobile&cid=579

Originally posted at InjuryBoard by Greg Webb

Johnson & Johnson Has Another Problem - Infant Tylenol Recalled

Greg Webb — Wed, 22 Feb 2012 07:45:00 GMT

A new bottle designed for Infant Tylenol is causing dosing difficulties for parents. 574,000 Bottles of grape-flavored, liquid Tylenol recommended for infants younger than 2 years old have been recalled by Johnson & Johnson due to a problem with the new bottle design and the bottle’s cap, ironically designed to ensure accurate dosing. However, the new bottle design interferes with parents and caregivers accessing the proper dosage for the infant. More than 15 complaints have been received by the company from parents and caregivers. Children’s Tylenol for children 2 years of age and older is not affected by this recall.

According to a report by Reuters of February 17, Johnson & Johnson says, “The recall is from stores and wholesalers; consumers can still use the product provided that the protective cover at the top of the bottle remains in place.” [1][1]

For the moment, no date has been set for the product’s return to the marketplace. J&J is looking at possibly redesigning the over-the-counter medicine’s bottle. The Reuters article notes that this is only one in a series of recent recalls of Johnson & Johnson products, including the DePuy hip implant device.

[1][1] “All infant Tylenol recalled due to dosing system flaw”, Reuters report of February 17, 2012, msnbc.com, http://www.msnbc.msn.com/id/46427423/ns/health-childrens_health/t/all-infant-tylenol-recalled-due-new-bottle-flaw/

Originally posted at InjuryBoard by Greg Webb