Richmond Virginia Personal Injury Lawyer

Make Your Doctor Give You Your Test Results

Michael Phelan — Wed, 24 Jun 2009 14:23:26 GMT

Are you like most people who assume that no news is good news after you've undergone a series of tests ordered by your doctor? If so, you should be alarmed by a recent study, and you should never assume that your doctor will automatically tell you if you have an abnormal test result. Researchers studying office procedures among primary care doctors found that more than 7 percent of clinically significant findings were never reported to the patient. There's a name for this phenomenon: medical malpractice.

The study reviewed the records of 5,434 patients at 19 different primary care practices and four based in medical centers. They pulled records containing abnormal results for blood tests, x-rays, and other imaging studies, and then searched for documentation that the patient had been properly informed of the results in a timely manner. The researchers then surveyed the doctors whose patients had not been informed of their results. Not surprisingly, some claimed the patient had been informed verbally. Others believed the results were not significant and therefore required no notification, and others claimed they soon would be notifiying the patient of the results. After giving all of the above-referenced doctors the benefit of the doubt and excluding them from the data, the study still found that 7 percent of patients were not informed of abnormal test results.

There are some cancers that, if detected early, are treatable and curable. Some of these cancers are also quit aggressive. Consequently, a six or twelve month delay in diagnosis may be fatal. Unfortunatately, it is not uncommon to hear about the woman who goes to her annual check up only to have her doctor pull her file and read for the first time the abnormal results from last year's Pap smear, breast biopsy, etc. What was potentially curable 12 months earlier, has now progressed to late-stage cancer.

We're all guilty of putting too much faith in our doctors. I love my primary physician and recommend him to everyone I know. But, I still don't know the results of blood tests I had many months ago. This study reminds me to find out!

Originally posted at InjuryBoard by Michael Phelan

Medtronic Reveals Massive Payments to Doctor Accused of Falsifying Medical Research

Michael Phelan — Thu, 18 Jun 2009 16:02:51 GMT

A former military surgeon accused by the Army of falsifying a medical journal study involving one of Medtronic's products received approximately $800,000.00 from Medtronic between 2001 and 2009, according to information released on Wednesday by the company. Medtronic said the payments to Dr. Timothy R. Kuklo were reimbursement for travel expenses, speaking engagements, training other doctors or other consulting services. The Justice Department is currently investigating whether Medtronic paid doctors like Dr. Kuklo to help market medical devices for unnaproved uses.

The surgeon, Dr. Timothy R. Kuklo, claimed in the study that the use of a Medtronic bone growth product called Infuse had proved highly beneficial in treating leg injuries suffered by American soldiers in Iraq. The British medical journal that published the article retracted it this year after an internal Army investigation found that Dr. Kuklo had forged the names of four other doctors on the study and had cited data that did not match military records. Other doctors at Walter Reed Army Medical Center, where Dr. Kuklo worked until August 2006, said that he had also overstated the benefits of the Medtronic product.

Medtronics is under investigation by the Justice Department and Senator Charles Grassley, Republican of Iowa, in connection with possibly illegally marketing of Infuse through outside physicians like Dr. Kuklo who work for it as consultants. The company has denied doing so. Last month, it suspended Dr. Kuklo’s consulting contract. In information released on Wednesday, Medtronic said that it made about $788,280 in direct payments to Dr. Kuklo between 2001 and 2009. It described those funds as either reimbursement for travel expenses, or payments for speaking or training other doctors on Medtronic’s behalf, or for consulting. The company said that those consulting services included working on the design of new or existing orthopedic products and surgical instruments.

It is legal for military doctors to receive payments from medical products companies, but they are supposed to seek permission from officials. Army officials have said they have not found records to indicate that Dr. Kuklo sought or received such clearance.

Those who still support the concept of preemption for medical device manufacturers need to explain to the rest of us how the FDA is supposed to protect patients from this ubiquitous greed. Studies and clinical trials used by the manufacturers to gain approval of devices and drugs are sometimes rigged and the medical literature is sometimes ghost-written by industry insiders. The FDA is under-staffed and underqualified to root out this corruption. The primary examples of this type of corruption being exposed are private lawsuits.

Originally posted at InjuryBoard by Michael Phelan

Tort Reform Means Less Safety(2)

Michael Phelan — Thu, 18 Jun 2009 15:35:16 GMT

The naive among us who believe that limiting our Seventh Amendment right to trial by jury would benefit most citizens probably also supported Newt Gingrich's plan in the 1990's to privatize the Food and Drug Administration (FDA). Then Speaker Gingrich advocated disbanding the FDA and giving the pharmaceutical, medical device, and food industry oversight of their own industries. What a disaster that would have been!

Anyone who believes that products would not be less safe or the environment more toxic without the threat to manufacturers and polluters of lawsuits is similarly naive. One would have to believe that, left to their own devices, these manufacturers and polluters could be trusted to do the right thing, i.e., to fairly balance the risks of harm against the benefits of the product, and to always choose to adopt reasonable safety precautions. A pending case in the United States District Court for the Southern District of Indiana is a typical example of the dishonesty and abuse by manufactureres and polluters that has become far too common in toxic tort and product liability cases. In this case, the plaintiff property owner, 110 West, LLC allged that Red Spot Paint & Varnish Co. Inc.'s manufacturing operations contaminated plaintiff's property with extremely dangerous chemicals, including benzene, a solvent used by the Nazis in the gas chambers. One issue was whether Red Spot and its law firm, Bose, McKinney & Evans, LLC, "lied or misrepresented the truth about Red Spot's use of ...[chlorinated solvents]." Naturally, in discovery, Red Spot was asked to identify all chemicals used in its manufacturing process. Red Spot not only used the chlorinated solvents in its process, but it also possessed reports of soil samples showing that the solvents had contaminated the soil and groundwater.

So, of course, Red Spot and its lawyers turned this information over in discovery, right? No, what Red Spot and its lawyers did was to hide the crucial documents and state in writing, under oath, among other misrepresentations, that "Red Spot's operations have not included the use of ...chlorinated solvents." Fortunately for 100 West, LLC and anyone interested in truth and non-toxic drinking water and soil, the lawyers for 100 West were persistent. They obtained the truth from the EPA, which had documented, including with photos of leaking solvent waste drums, that Red Spot had dumped over 96 gallons of hazardous chemical waste into the environment. The EPA informed the plaintiff's lawyers that Red Spot's lawyers at Bose McKinney had received a copy of the Red Spot EPA file. Upon learning this, the court ordered Red Spot to turn over the file, however, the court later concluded that the Bose McKinney lawyers "'sanitized' the EPA RCRA file by pulling out the most damaging documents."

The federal judge found that Red Spot committed fraud and made misrepresentations to the court. "Red Spot has made a mockery of the discovery process and has subjected the truth to ridicule." The court's lengthy opinion is replete with examples of Red Spot witnesses lying under oath and of Red Spot's lawyers being complicit in those lies, having possessed enough documentary evidence to know the testimony was untruthful. The court issued the most severe of sanctions under Fed. R. Civil P. 37 and found Red Spot liable for contaminating plaintiff's property and responsible for remediating the contamination. The court also ordered Red Spot and Bose McKinney to split the cost of all of plaintiff's legal fees for the three years of discovery that preceeded the sanctions order.

Red Spot was not going to voluntarily clean up its toxic mess. And the EPA obviously had no success in forcing Red Spot to do so. Only through the litigation process was 100 West LLC able to receive justice, and it took years of litigation caused by Red Spot's abusive discovery tactics to get justice. The tort reformers want to make it easier for defendants like Red Spot and harder for plaintiffs like 100 West. Does that seem right?

Originally posted at InjuryBoard by Michael Phelan

Tort Reform Means Less Safety

Michael Phelan — Fri, 12 Jun 2009 08:34:09 GMT

Anyone who believes that products would not be less safe or the environment more toxic without the threat to manufacturers and polluters of lawsuits is similarly naive. One would have to believe that, left to their own devices, these manufacturers and polluters could be trusted to do the right thing, i.e., to fairly balance the risks of harm against the benefits of the product, and to always choose to adopt reasonable safety precautions. A pending case in the United States District Court for the Southern District of Indiana is a typical example of the dishonesty and abuse by manufactureres and polluters that has become far too common in toxic tort and product liability cases. In this case, the plaintiff property owner, 110 West, LLC allged that Red Spot Paint & Varnish Co. Inc.'s manufacturing operations contaminated plaintiff's property with extremely dangerous chemicals, including benzene, a solvent known to cause leukemia and other blood disorders and cancers. One issue was whether Red Spot and its law firm, Bose, McKinney & Evans, LLC, "lied or misrepresented the truth about Red Spot's use of ...[chlorinated solvents]." Naturally, in discovery, Red Spot was asked to identify all chemicals used in its manufacturing process. Red Spot not only used the chlorinated solvents in its process, but it also possessed reports of soil samples showing that the solvents had contaminated the soil and groundwater.

The federal judge found that Red Spot committed fraud and made misrepresentations to the court. "Red Spot has made a mockery of the discovery process and has subjected the truth to ridicule." The court's lengthy opinion is replete with examples of Red Spot witnesses lying under oath and of Red Spot's lawyers being complicit in those lies, having possessed enough documentary evidence to know the testimony was untruthful. The court issued the most severe of sanctions under Fed. R. Civil P. 37 and found Red Spot liable for contaminating plaintiff's property and responsible for remediating the contamination. The court also ordered Red Spot and Bose McKinney to split the cost of 100 West's legal fees for the three years of discovery that preceeded the sanctions order.

Originally posted at InjuryBoard by Michael Phelan

Repeal the Feres Doctrine

Michael Phelan — Tue, 19 May 2009 10:37:28 GMT

Cindy Wilson was a 37 year old technical sergeant stationed at Langley Air Force Base. On February 20, 2007, she was to give birth to her first child. Sergeant Wilson was excited that her parents were making the trip from Georgia to experience the birth of their grandson. On that same day, Dr. Michael Carozza, the lead obstetrician on staff at Langley, had not even been issued his Virginia medical license. He was 31 years of age and had just completed his residency a few months before.

Just before midnight on Feb. 20, 2007, Sergeant Wilson gave birth by cesarean section to a healthy boy. But she never got to hold her baby. According to her medical records, a uterine artery was cut during the delivery, causing massive internal bleeding. The estimated blood loss was equivalent to the total blood volume of an average adult. Then, during frantic efforts to repair the damage, two surgical sponges were left in Wilson’s abdomen. Wilson's parents went to her Smithfield home to get some sleep. Around 4 a.m., her husband called. Wilson was going back to the operating room for emergency surgery caused by the sponges left in her body. When her parents got back to the hospital, “her room looked like a tornado had hit it,” Connie Wilson said. A piece of medical equipment was overturned and a needle lay on the floor.

Twelve hours after giving birth, she was dead. Dr. Carozza's Virginia medical license was issued on Feb. 21, 2007 – the day Cindy Wilson died. Carozza is still on the obstetrics staff at Langley.

In the following months, Sergeant Wilson's devastated parents got a second shock when they learned that they had no recourse – even for what seemed to them an egregious case of medical malpractice – because of a legal precedent known as the Feres Doctrine , which bars military members from recovery for personal injury or death "incurred incident to miltary service or duty." "Incident to service" means any and all activities, not just work-related military duties, to which the service member is exposed due to her military service- including use of base recreational facilities and receipt of health care services.

A vocal group of military families, lawyers and members of Congress say the Feres Doctrine renders service members second-class citizens and should be overturned. The doctrine goes back nearly 60 years to a 1950 Supreme Court ruling on a series of cases that became known as the Feres Doctrine. One of the Feres cases involved a soldier who was barred from suing after an Army doctor left a 30-by-18-inch towel marked “Medical Department U.S. Army” inside him. There have been similar cases through the decades in which foreign objects – usually sponges – were left inside patients who, because they were military personnel, were barred from suing. Such cases illustrate how the Feres Doctrine has contributed to substandard care in the military medical system, according to Jonathan Turley, a law professor at George Washington University who for years has been a leading critic of the doctrine.

“We see cases in the military involving conduct that would be viewed as perfectly medieval in the civilian world,” Turley said. “Decades ago, civilian doctors were sued over the practice of leaving sponges in patients. It used to be very common.” After a few lawsuits, the medical profession came up with a simple solution: Count the sponges before and after the procedure. Now it’s rare to see that type of malpractice in civilian medicine, Turley said. But because there is no fear of lawsuits , it keeps occurring in military medicine. “I consider the Feres Doctrine to be one of the most grotesque rules created in the history of this republic,” Turley said. “It has done untold damage to thousands of military personnel and their families.”

The Feres ruling grew out of the Federal Tort Claims Act of 1946, which waived the ancient common-law doctrine of sovereign immunity in certain circumstances to allow lawsuits against the government for negligent acts. Initially that law was interpreted to forbid lawsuits by military personnel only for combat-related injuries. The Feres decision widened that exclusion to bar any lawsuits over injuries “incident to military service.”

The ruling has been criticized by judges all across the ideological spectrum. A 5-4 Supreme Court decision reaffirming it in 1987 drew dissents from Justices John Paul Stevens on the left and Antonin Scalia on the right. Scalia wrote that Feres “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” Although the doctrine is not statutory (it arose from case law), it probably will require legislation to address its draconian effects. Attempts to repeal the doctrine have surfaced periodically in Congress for more than 20 years, but all have failed. The latest attempt to repeal Feres is the Carmelo Rodriguez Military Medical Accountability Act of 2009, introduced by U.S. Rep. Maurice Hinchey, D-N.Y. It’s named for a Marine constituent of Hinchey’s.

The measure would allow lawsuits on behalf of military personnel who are killed or injured by medical malpractice. It contains an exception for combat-related injuries and requires that any paid claim be reduced by the amount of any other government compensation resulting from the injury. Hinchey said the issue is one of simple fairness. “I think military personnel should be treated in normal ways,” he said. “Their medical issues should be dealt with responsively and attentively, the way we anticipate and expect the medical problems of ordinary citizens should be dealt with. We see far too much negligence in military medical care.”

In my opinion, this bill does not go far enough. I once represented a military reservist who was killed in a car accident by a drunk driver. Unfortunately, the service man was killed "incident to military service or duty" as he was reporting to base for training. Military personnel should have the right to sue (just like we all do under the Constitution) for all non-combat-related injuries or death.

Originally posted at InjuryBoard by Michael Phelan

Traumatic Brain Injury Affects Kids for Years

Michael Phelan — Wed, 13 May 2009 12:20:37 GMT

According to two studies just published by the American Psycological Association, children who suffer traumatic brain injuries can experience lasting or late-appearing neuropsychological problems. These finding highlight the importance of careful monitoring of brain damaged children over time.

One study found that some child victims of TBI may recover academically but then start acting up or having problems with daily functioning, while other children do surprisingly well for no apparent reasons. The second study noted a snowball effect where children with severe TBI fell farther and farther behind their peers than one would normally expect.

For the severe TBI population studied, 60% had problems in at least one area one year post-injury and 40% had problems four years post-injury. Severe brain injuries to young children pose a double hazard because young children still have more brain development ahead of them. The human brain is not fully developed until some time around seven years of age. These studies highlight the need for targeted treatment developed specifically for young children with brain damage.

Originally posted at InjuryBoard by Michael Phelan

Frightening News About Buffalo Plane Crash

Michael Phelan — Tue, 12 May 2009 10:37:52 GMT

According to people with knowledge of the National Transportation Safety Board (NTSB) investigation, the captain of a Colgan Air commuter plane that crashed Feb. 12 near Buffalo, N.Y. flunked numerous flight tests during his career and was never adequately taught how to respond to the emergency that led to the airplane crash. As a result, investigators and regulators are examining Colgan's hiring and training practices. At a NTSB hearing which commences on Tuesday, witnesses are expected to provide new allegations about Colgan's training shortcomings, as well as the prevalence of chronic pilot fatigue and lapses in cockpit discipline, and the agency is expected to be critical of the Federal Aviation Administration's oversight of the airline. Colgan was operating the flight for Continental.

The New York Times (5/12, A21, Wald) reports, "As the National Transportation Safety Board prepares for three days of hearings on the crash beginning Tuesday, two gaps have become clear: A 1996 federal law intended to ensure that an airline hiring a new pilot would know about the pilot's previous problems did not do the job; and the captain of the flight that crashed near Buffalo had never received hands-on training with a safety system that activated just before the plane went down."

During the CBS Evening News (12/6, story 8, 2:10, Couric), CBS (Cordes) said, "It was the worst crash the country has seen in seven years, killing 50. Now Colgan Air confirms the captain on that frigid Buffalo night, 47-year-old Marvin Renslow, had racked up five unsatisfactory test flights called check rides, two during his brief three-year tenure at the airline and three in the years before that." John Goglia, former member, NTSB, said, "It looks like we have two inexperienced crew members in the cockpit." At the hearing, according to NTSB sources, "the FAA's standards will be a prime focus at the hearings." NBC Nightly News (5/11, story 5, 2:30, Williams) and the ABC World News (5/11, story 8, 1:30, Gibson) also covered the story.

This terrible airplane crash illustrates that sometimes we actually need more, not less, regulation to keep us safe.

Originally posted at InjuryBoard by Michael Phelan

Hold Your Child Out of Sports Following a Concussion

Michael Phelan — Tue, 05 May 2009 15:24:28 GMT

I know many well-meaning parents who are guilty of allowing their child to be rushed back into contact sports following a concussion. Whether the concussion is suffered in a car accident or a sports-related incident, the same issue typically arises- the child wants to go back to sports immediately after getting checked out at the hospital. I know enough about mild brain injury to know this is usually a bad idea, particularly for children who have had multiple concussions. I've often struggled with the internal debate between not wanting to interfere with another family's decision and knowing that one can suffer mild brain damage that may not show up on the hospital CT scan. I now have a new study to cite to fellow parents.

Using a computer-based training program created to assess athletes with concussions and determine when it was safe for them to return to sports, researchers at The Children's Hospital of Philadelphia followed 116 children at an urban Level 1 trauma center over two years. The tests revealed an alarmingly high rate of cognitive deficits in nearly all patients during initial testing. The program tests specific abilities, such as attention span, memory, nonverbal problem solving and reaction time. Almost all patients tested below the 25 percentile in at least one area; the majority demonstrated significant impairment for all four subtests.

The test also assesses the degree of concussion symptoms, and the majority of children with concussions demonstrated an abnormal symptom score. The follow-up group demonstrated significant improvement in neurocognitive performance on all four subtests as well as an improvement in their symptom scores. Prior research has demonstrated that children are more likely to sustain another concussion if they return to sports or exertional activities prematurely. In addition, high school athletes recover more slowly than college or professional athletes. Presumably the same is true for children with concussion from non-sports related causes.

The authors of this study recommend that a qualified healthcare provider perform a formal assessment after hospital discharge and before a concussed child is allowed to resume exertional activities, particularly contact sports. The referenced article appears in the May issue of the journal, Annals of Surgery.

Originally posted at InjuryBoard by Michael Phelan

"All-Hands Meeting" Called At FDA To Discuss Lax Medical Device Oversight

Michael Phelan — Tue, 28 Apr 2009 11:20:27 GMT

Nine scientists signed letters to President Obama charging that Food and Drug Administration officials had acted illegally and that patients were routinely put at risk by unsafe medical devices approved by the FDA for sale despite significant and often unanimous objections from scientific reviewers at FDA. These scientists sent many e-mails to the FDA's prinicpal deputy commissioner, seeking his intervention, but the deputy commissioner, Joshua Sharfstein, M.D., replied that he was "already burning the candle at both ends to keep up with his job." The nine dissident scientists sent an extensive memorandum to Dr. Sharfstein charging that the "regulatory review process for medical devices has been severely distorted" and that those who raised concerns about unsafe devices had been retaliated against by agency managers.

Amond the devices alleged to have been approved inappropriately are imaging equipment for detecting breast cancer and an orthopedic knee device. The FDA also allowed hospitals to wash and reuse sterile surgical devices intended for just one use. Sounds like a great idea in this era of MRSA and other deadly bacteria and viruses. Undue influence from the device manufacturers is no-doubt a cause for some of these inappropriate approvals. The other reason is captured in Dr. Sharfstein's above-cited quote- the agency is too understaffed to do its job; hence it relies too much on safety and efficacy information provided by the drug and device manufacturers. The fox has been allowed to guard the chicken house. This is why preemption arguments are such a joke. When Newt Gingrich introduce the Contract With America, it contained a provision to turn the FDA over completely to the drug and device industry and let them regulate themselves. Thank God that did not happen.

There are signs that the FDA may take steps to kick the fox out of the chicken house. On April 10, Donna-Bea Tillman, director of the FDA's office of device evaluation, announced an "all-hands meeting" of all scientists within the office to discuss the strategic direction of the device center. This would be the first meeting of its kind in years. Under the previous administration, meeting time was awarded to industry lobbyists rather than the scientists charged with evaluating safety.

Originally posted at InjuryBoard by Michael Phelan

Census Report Confirms Race-Based Pay Disparities

Harris Butler — Tue, 28 Apr 2009 09:47:52 GMT

Companies continue to use discriminatory pay systems. Census figures released yesterday confirm that blacks and Hispanics continue to be paid less than whites for higher-paying jobs – and that the differentials are larger than they have been in a decade. Census income reports show:

• Blacks with four year college degrees earned $46,502, or about 78 percent of what comparably educated whites earned;

This is the largest pay disparity between professional blacks and whites since 2001, when the differential was 77%. By 2005, the differential had fallen to 83% but has increased since that time.

• Hispanics with bachelor’s degrees had an average salary of $44,696, or about 75% of what similarly educated whites earned.

Hispanics had closed the gap to 87% in 2000, but the trend seen with a widening gap also affected this group.

The gender pay gap is even greater: women with at least a bachelor’s degree earned an average salary of $43,127, about 60% the amount earned by comparably educated men.

It remains to be seen if the legislation aimed at correcting such pay disparities, the Lilly Ledbetter Fair Pay Act which was signed into law earlier this year, will decrease the disparities and bring about more pay equity. This law relaxes that time in which claims may be brought – discriminatory wage systems on race or gender may be preserved with a filing with the EEOC within 180 days of the last discriminatory pay check received (or within 300 days in Virginia and other states with “state deferral agencies”). Check with your local EEOC office to see which date applies to you).

For more information on the Lilly Ledbetter Fair Pay Act, see my earlier blogs on this important legislation on this site.

Originally posted at InjuryBoard by Harris Butler