May 2009


The family of a Philadelphia man who passed away in 2006 was awarded a verdict of $2.185 Million after a jury found two doctors and a hospital liable for medical malpractice, according to a story on philly.com

Zachary James, the decedent, presented to the hospital with chest, back and leg pains.  Tests were ordered in the emergency room, but it took two hours for some of the tests to be performed.  About two hours into the event, the lead emergency room doctor left the emergency room for a meeting, leaving a doctor who was starting his first day in the emergency room as the only physician in the emergency room.  The new doctor was supposed to be in orientation and not left alone to handle the emergency room by himself. 

X-rays were taken of Ms. James, but were not read in the emergency room when they were developed.  Hospital procedure dictated ER physicians were to read the x-rays immediately.  Instead, the x-rays were sent to radiology where they were reviewed the next day. 

Mr. James passed away after spending eleven hours in the emergency room with no diagnosis.  He had a dissecting aortic aneurysm, a tear in the wall of the aorta that allows blood to flow between the aorta wall’s layers, and can result in a rupture of the wall, and death. 

The defense argued that even if the hospital Emergency Room physicians had quickly identified Mr. James’ condition, there still may not have been enough time to transfer him to another hospital to perform a life saving surgery.  The jury found the two doctors 84% liable and the hospital 16% liable for the damages.

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The Federal Government is mandating new safety standards for automobile roofs, the first such new standards in thirty years, according to the New York Times Wheels Blog.  Automobiles are currently required to have roofs that can withstand pressure equal to one and a half times the vehicle’s curb weight, with that pressure applied to one side of the roof only, up to a six thousand pound maximum.  Vehicles over 6,000 pounds are not currently regulated.

The new standard, to be implemented by the National Highway Traffic Safety Administration, is that the vehicle’s roof must be able to withstand three times the weight of the vehicle, with pressure applied first to one side of the roof and then to the other side of the roof.  Safety experts claim that the two sided test better approximates the conditions a vehicle experiences in a roll over situation.  The new standard also removes the six thousand pound cap on vehicles and brings vehicles in the 6,000 to 10,000 pound range under the regulations.

The NHTSA hopes that the tougher standard will prevent deaths from rollover crashes.  The Administration’s data shows 10,000 deaths annually from rollover crashes, under the current standard.  In the Administration’s press release, Transportation Secretary Ray Lahood states, “These new standards go a long way toward reducing deaths, but safety belts are the first, most important step everyone should take to protecting themselves and their families.” 

The phase in for the new requirements begins in September 2012.  The Administration has also mandated electronic stability control systems which will also help to prevent rollovers from occurring.

According to a story in the LA Times, the Food and Drug Administration is recommending that consumers should immediately stop taking the dietary supplement product, Hydroxycut.  The product is manufactured by Iovate Health Sciences Inc.  The company has agreed to recall the product from the market.

Hydroxycut products are dietary supplements that are used as weight loss products, such as fat burners, energy enhancers, low carb diet aids, and water loss aids.  The list of recalled products includes: 

Hydroxycut Regular Rapid Release Caplets
Hydroxycut Caffeine-Free Rapid Release Caplets
Hydroxycut Hardcore Liquid Caplets
Hydroxycut Max Liquid Caplets
Hydroxycut Regular Drink Packets
Hydroxycut Caffeine-Free Drink Packets
Hydroxycut Hardcore Drink Packets (Ignition Stix)
Hydroxycut Max Drink Packets
Hydroxycut Liquid Shots
Hydroxycut Hardcore RTDs (Ready-to-Drink)
Hydroxycut Max Aqua Shed
Hydroxycut 24
Hydroxycut Carb Control
Hydroxycut Natural

To date, 23 consumers have reported serious liver problems related to Hydroxycut.  One death due to liver failure has been reported (according to CNN.com a 19 year old died in 2007) and others have reported liver damage so severe that it required liver transplant.  Symptoms of liver injury include jaundice, brown urine, nausea, vomiting, light-colored stool, excessive fatigue, weakness, stomach/abdominal pain, itching and loss of appetite. 

Other health problems reported to the FDA include seizures, cardiovascular disorders, and rhambdomyolysis (muscle damage that can lead to kidney failure).

A jury in McClean County Illinois awarded the family of a deceased mesothelioma victim over $2 million, according to a story on pantagraph.com.  The woman, Juanita Rodarmel, was married to a man who worked at the Union Asbestos & Rubber Company (UNARCO) plant in Bloomington, IL in the 1950’s. 

Ms. Rodarmel’s husband carried home asbestos fibers on his clothes and Ms. Rodarmel was exposed to the asbestos fibers from his clothes every time she was his clothes.  The jury awarded $100,000 in punitive damages against Pneumo Abex, LLC and $400,000 in punitive damages against Honeywell International.  The lawyers for Ms. Rodarmel’s family argued that Pneumo Abex and Honeywell International conspired with other companies to suppress the facts about the hazards of asbestos.

The Arkansas Supreme Court found two provisions of a 2003 tort reform bill known as the Civil Justice Reform Act unconstitutional, according to a story on arkansasnews.com.  In the case, Johnson v. Rockwell Automation Inc., a worker sustained severe injuries to his hand, when the safety switch on a starter bucket malfunctioned, and sued Rockwell, the designer of the bucket.

The two issues the court looked at were a provision that allowed jurors to assess fault to non-parties and a provision that abolished the collateral source rule.  The Court found that the legislature went too far in the tort reform bill and that these provisions violated separation of powers provisions of the state constitution. 

In the opinion, Justice Paul Danielson wrote the “(r)ules regarding pleading, practice and procedure are solely the responsibility of the court.”  Because rules regarding pleading, practice and procedure are solely the province of the judiciary, the legislature cannot pass laws in this area, without running afoul of the constitution.

In this case, the defendant wanted to introduce evidence that a non-party shared blame for the defect that caused the injury, which was admissible evidence under the new statute.  The court found that “(t)he nonparty-fault provision bypasses our ‘rules of pleading, practice and procedure’ by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that nonparty’s fault in an effort to reduce a plaintiff’s recovery.”  The Court found that “(b)ecause the nonparty provision is procedural, it offends the principle of separation of powers.”

The collateral source rule is a common law doctrine which dates back to the 1800’s.  It says that evidence that a victim might be compensated for injuries from a source other than the defendant that caused the injury, is inadmissible.  For example, a car wreck victim might have health insurance which pays for some of their doctor bills. 

The reason the defendant cannot ask for a reduction in a case where health insurance pays a bill, is that the health insurer has a right to pay back from the plaintiff, for any money they pay out on the claim (subrogation right).  That means if a jury reduces the amount of an award by the amount the health insurer pays, then the health insurer gets pay back from the plaintiff for what it paid out, the plaintiff ends up under compensated for their injuries. 

The court stated “we have held that the rules of evidence are rules falling within this court’s domain.”  The statute restricts what evidence may be admitted at trial.  Because the statute creates a new rule regarding what evidence is admissible at trial, it violates the separation of powers provision of the state constitution. 

Collateral source and joint liability are two common targets in tort reform attacks in state legislatures.  Joint liability protects plaintiffs from being under compensated when there are multiple defendants and one of the defendants cannot pay their share.  The collateral source rule prevents the at fault party from getting away with paying less than the full amount they owe and short changing the victim.