Category Archives: Negligence

Texas Supreme Court Agrees That Compounding Pharmacy Is “Health Care Provider.”

16 Saturday May 2015

Posted by in Appellate Law, Damages, Health Law, Litigation, Negligence, Texas Supreme Court

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Texas Supreme Court Holds That Compounding Pharmacies Are Health Care Providers Under Texas Medical Liability Act, by Elinor H. Murarova, Duane Morris Health Law Blog

http://tinyurl.com/k75hx7m

On April 24, 2015, the Texas Supreme Court dismissed claims against a compounding pharmacy and its individual pharmacists which alleged negligence in compounding a lipoic acid medication, finding that the defendants were health care providers entitled to the protections in the Texas Medical Liability Act (‘TMLA’).

In the case Randol Mill Pharmacy et al. v. Miller et al., Case No. 13-1014 (Tex. Sup. Ct.), the plaintiff’s physician prescribed and administered weekly intravenous injections of 200 mg/ml lipoic acid, an antioxidant supplement. The plaintiff alleged that she underwent nine weeks of treatment without incident, but in the tenth treatment she suffered a severe adverse reaction and as a result was hospitalized for several weeks, received multiple blood transfusions, and went permanently blind in both eyes. Randol Mill Pharmacy compounded the lipoic acid that allegedly caused the adverse reaction.

In her complaint against the compounding pharmacy and its individual pharmacists, the plaintiff alleged that these defendants gave inadequate and inappropriate warnings and instructions for using the compounded lipoid acid; that the compounded lipoid acid was defective, ineffective and unreasonably dangerous; and that the compounding pharmacy and pharmacists generally breached implied warranties with respect to the design, manufacture, inspection, marketing, and/or distribution of the compounded lipoid acid. . . .

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Kentucky’s Bill To Prevent “Frivolous” Nursing Home And Other Medical Abuse Claims, But Is That The Problem?

21 Saturday Mar 2015

Posted by in Elder Abuse, Elder Law, Health Law, Health Reform, Litigation, Medical Malpractice, Negligence, Nursing Home Abuse, Personal Injury, Skilled Nursing Facilities, Wrongful Death

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Senate OKs Bill For Review Panels In Medical Lawsuits After Lively Debate Between Doctors, Lawyers, Others, by Melissa Patrick, Kentucky Health News

http://kyhealthnews.blogspot.com/2015/02/senate-committee-oks-bill-for-review.html

The Senate has approved a bill that advocates say will help weed out ‘frivolous’ medical malpractice lawsuits and speed up litigation for legitimate suits.

‘Right now, Kentucky has one of the nations most litigation-friendly environments, making our commonwealth a prime and profitable target for personal injury lawyers preying upon our health care providers,’ Sen. Ralph Alvarado, R-Winchester, a physician and sponsor of Senate Bill 6, told the Senate Health and Welfare Committee. Opponents disputed that claim.

The Senate passed the bill Thursday 24-12. It is not expected to pass the House.

The bill would establish panels of three medical experts, two chosen by each side and the third chosen by the other two, to review suits against health-care providers to determine if the case has merit before the lawsuit can proceed. Panel findings would be admissible in court but not legally binding.

The Republican-controlled Senate passed a very similar bill last year but it got nowhere in the Democrat-controlled House, and its prospects are similar this time. However, Wednesday’s committee meeting provided a detailed and lively explication of the issue, lasing almost two hours.

Vanessa Cantley, a Louisville personal injury attorney, told the committee that most medical malpractice cases are legitimate. She cited a Harvard University study published in the New England Journal of Medicine that concluded ‘portraits of a malpractice system that is stricken with frivolous litigation are overblown’ and reported that 97 percent of claims for medical injury evaluated over a decade were deemed to be meritorious.

However, Michael Sutton of Louisville, a civil defense attorney, said defendants win 80 per cent of medical malpractice suits.

Cantley said there are 2,700 deaths in Kentucky each year due to purely preventable medical error, but, according to the state Department of Insurance, fewer than 500 lawsuits a year are filed by abuse and neglect victims. . . .

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Seat Belt Use Evidence Now Admissible In Texas.

19 Thursday Feb 2015

Posted by in Admissibility, Authentication, Damages, Discovery, Evidence, Motor Vehicle, Negligence, Personal Injury, Product Liability, Relevance, Torts, Wrongful Death

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TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility, by Christopher J. Robinette, Torts Prof Blog (with hat tip to Jill Lens (Baylor)!)

http://tinyurl.com/kmbeph9

For years, evidence of seat belt use was prohibited at trial. The Texas Supreme Court changed that rule of law with this case. This ruling will have a major impact on this area of the law. -CCE

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff’s conduct caused or was a cause of his damages.

Pennsylvania’s New Standards for Strict Liability Claims.

10 Tuesday Feb 2015

Posted by in Damages, Litigation, Negligence, Product Liability, Torts

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Pennsylvania Supreme Court Adopts New Standards for Strict Liability Claims, by Duane Morris LLP & Affiliates®

http://tinyurl.com/q49j9jx

While the Tincher decision clarifies some issues regarding strict liability cases, there are many issues left to be determined by future case law.

On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in Tincher v. Omega Flex, Inc. (No. 17 MAP 2013), in which it addresses the proper standard under Pennsylvania law for strict liability claims relating to allegedly defective products. Although the court declined to adopt the Restatement (Third) of Torts, it overruled its prior holding in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which created roadblocks to the introduction by defendants of the reasonableness of their actions in designing products.

Strict liability for defective products developed from the social policy determination that the cost of injuries resulting from defective products should be borne by the manufacturers of the products rather than by the injured persons.[1] For almost 50 years, strict liability under Pennsylvania law has been governed by Section 402A of the Second Restatement of Torts, which provides that ‘one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability [for the harm caused] . . . .’

The term ‘unreasonably dangerous’ naturally involves a balancing between what is reasonable and what is not, which is similar to the fault-based notions encompassed by negligence claims. However, in Azzarello, the Pennsylvania Supreme Court drew a bright line between strict liability and negligence causes of action. . . .

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May Defense Counsel Ask Plaintiff Whether He Was Referred to Doctor?

21 Sunday Dec 2014

Posted by in Attorney-Client Privilege, Cross-Examination, Defense Counsel, Depositions, Direct Examination, Discovery, Interrogatories, Litigation, Making Objections, Negligence, Personal Injury, Plaintiff's Counsel, Privilege and Confidentiality, Trial Tips and Techniques

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“Did Your Attorney Refer You to that Doctor?” by Daniel E. Cummins, TORT TALK Blog

http://tinyurl.com/phfds4w

In a recent Delaware County Court of Common Pleas decision in the case of English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Co. Nov. 12, 2014 Kenney, P.J.), President Judge Chad F. Kenney upheld a defense attorney’s right to inquire of a personal injury plaintiff whether or not plaintiff’s counsel had referred the plaintiff to her treating physician.

This issue came before the court on a Motion for a Re-Deposition of the plaintiff by defense counsel.

At the original deposition, plaintiff’s counsel objected to the defense counsel’s question to the plaintiff as to whether or not plaintiff’s counsel had referred the plaintiff to her treating physicans. Plaintiff’s counsel asserted that such discovery was barred by the attorney-client privilege.
In his Opinion issued on the matter, President Judge Kenney held that, ‘whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege.’ More specifically, the court found that whether an attorney referred his client to a medical provider for treatment cannot be considered to have been a communication from an attorney to his or her client associated with the rendering of a legal opinion or the provision of legal services so as to invoke the applicability of the attorney-client privilege.

President Judge Kenney also stated that any asserted privilege ‘failed to outweigh the interest of the accessibility of material evidence to further the truth-determining process’ at a trial of a personal injury matter.

The Court granted Defendant’s Motion and ordered a 2nd deposition limited to the issue of who referred Plaintiff to her treating physicians.

Anyone wishing to review this decision, may click this LINK.

Federal Judge Decides BP Blew It.

06 Saturday Sep 2014

Posted by in Damages, Environment Law, Litigation, Negligence, Punitive Damages

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Ruling On The 2010 Gulf of Mexico Oil Well Blowout, by Sabrina I. Pacifici, BeSpacific Blog

http://tinyurl.com/kh76r3q

BP has already said that it will immediately appeal to the Fifth Circuit Court of Appeals. Among the errors BP asserts by Judge Barbier, it disagrees with the number of billions of gallons of oil that gushed into the Gulf of Mexico from the Deepwater Horizon rig. BP is trying to stop the bleeding. Every gallon of oil that spewed into the Gulf has a price tag for damages.

BP maintains a website with its version of the facts and its commitment to safety. Its argument was not sufficient to sway Judge Barbier.  Halliburton and Transocean were not hit as hard as some would have liked, but they were found to bear some of the responsibility for the disaster as well.

It will be interesting to see whether this ruling affects environmental cases, off-shore drilling, and oil and gas ventures in general in the future. -CCE

 New York Times: ‘A federal judge ruled on Thursday that BP was grossly negligent in the 2010 Gulf of Mexico oil well blowout that killed 11 workers, spilled millions of barrels of oil into the Gulf of Mexico and soiled hundreds of miles of beaches. ‘BP’s conduct was reckless,’ United States District Court Judge Carl J. Barbier wrote in his sternly worded decision. Judge Barbier also ruled that Transocean, the owner of the rig, and Halliburton, the service company that cemented the well, were negligent in the accident. But the judge put most of the blame on BP, opening the way to fines of up to $18 billion under the Clean Water Act. In a 153-page, densely technical decision, Judge Barbier described how BP repeatedly ignored mounting warning signs that the well was unstable, making decisions that he says were ‘primarily driven by a desire to save time and money, rather than ensuring that the well was secure.’

How To Draft Interrogatories.

17 Tuesday Jun 2014

Posted by in Discovery, Insurance Defense, Interrogatories, Litigation, Motor Vehicle, Negligence, Personal Injury, Product Liability

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Drafting Interrogatories, by Megan E. Boyd, Lady (Legal) Writer

http://tinyurl.com/lx5y8ql

There are five types of discovery. Each has its own strength and weakness. Knowing when, and how, to use each effectively narrows the issues of the case and may even provide sufficient evidence for a successful summary judgment motion. This post discusses one of the most common and useful forms of discovery – interrogatories. -CCE

Interrogatories (a fancy name for a list of questions) are sent as part of the discovery process in litigation and allow parties to gain information relevant to the litigation. Many attorneys send interrogatories before they engage in other types of discovery, such as depositions, because interrogatory responses often help an attorney narrow down the types of questions the attorney will ask during a deposition. . . .

Keeping Medical Records Costs Down.

16 Wednesday Apr 2014

Posted by in HITECH Act, Litigation, Medical Records, Motor Vehicle, Negligence, Personal Injury, Product Liability, Torts, Wrongful Death

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Defeating The Medical Records Paper Copy Scam, by Max Kennerly, Esq., Litigation and Trial Blog (with hat tip to Evan Schaeffer, The Trial Practice Tips Blog!)

http://tinyurl.com/mmpm4sy

Mr. Kennerly explains why obtaining medical records need not be expensive, and provides a sample letter with citation to legal authority. -CCE

Hardly a day goes by without a letter from my office either requesting medical records or paying for them. Some days, I sign more than a dozen. It’s perhaps the most common thread among all my cases: the vast majority of my clients have been physically injured in one way or another, and at a bare minimum, I need the records from their doctors and hospitals to show the diagnoses they have and the treatment they have received.

Every patient has a right to receive their medical records, and by law should be able to obtain those records promptly at no markup, with no padded fees, and no unnecessary charges from the hospital or the records company. But if there’s money to be made, someone will try to make it, and over the past decade a whole cottage industry has developed around the “business” of trying to cheat patients trying to get their medical records. Sometimes health care providers outsource this ‘business’ to third-party companies, and sometimes the hospitals and health systems play the con game themselves. . . .

$17 Million – Likely Largest Ever Wrongful Workplace Death Settlement.

13 Thursday Feb 2014

Posted by in Damages, Employment Law, Evidence, Government, Litigation, Negligence, OSHA, Settlement, Wrongful Death

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Philadelphia Electrician’s Widow to Receive Record $17 Million in Wrongful-Death Settlement, by Josh Cable, EHS Today

http://tinyurl.com/mx9kqq5

The widow of an electrician who died in a crane accident at Veolia Energy’s Schuylkill steam plant in Grays Ferry, Pa., will receive $17 million, in what is believed to be the largest wrongful-workplace-death settlement in Philadelphia County history. . . .