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Federal Judge Orders Seroquel Cases To Trial
November 25, 2009
Topic: Medical Claims: Dangerous Drugs

AstraZeneca Plc may face as many 6,000 trials of lawsuits claiming its antipsychotic drug Seroquel causes diabetes after a judge said she will recommend sending the cases back to their home courts. U.S. District Judge Anne Conway in Orlando, Florida, who is overseeing pre-trial proceedings in federal Seroquel litigation, said yesterday she'll urge a panel of judges to return all of the cases to courts across the U.S. for possible trials. In Re Seroquel Products Litigation, 06-MD- 01769, U.S. District Court, Middle District of Florida.

The company faces more than 14,000 suits in U.S. state and federal courts alleging Seroquel caused diabetes in some users. Seroquel, which generated sales of $4.45 billion in 2008, is AstraZeneca's second-biggest seller after the ulcer treatment Nexium. AstraZeneca officials noted in regulatory filings last month that the drugmaker could face the first trials of Seroquel suits in state courts in Delaware and New Jersey in January. The company also disclosed it has spent $623 million in "legal defense costs" for Seroquel litigation so far.

AstraZeneca, the U.K.'s second-largest drugmaker, wanted Judge Conway to send as many as 60 suits back to their home courts for trial as test cases. Lawyers for former users contended they were ready to press forward on their claims that the London- based company downplayed Seroquel's diabetes risk.

"While providing the prospect of lifetime employment for AstraZeneca's attorneys, AstraZeneca's plan is also plainly designed to permit AstraZeneca to prolong resolution of this litigation," Camp Bailey, a Houston-based lawyer for Seroquel users, said in a Nov. 6 court filing.

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Patients Rights to Sue Doctors For Malpractice Is Being Challenged
November 25, 2009
Topic: Medical Malpractice Claims

While the Texas Supreme Court considers two very similar cases (Walters v. Cleveland Regional Medical Center, and Methodist Healthcare System v. Rankin) involving medical malpractice of doctors, nurses and hospitals for leaving sponges inside a patient, the Texas Attorney General Greg Abbott has filed a brief with the Texas Supreme Court urging the Court to dismiss the lawsuit filed by Emmalene Rankin. Emmalene Rankin discovered a surgical sponge lodged against her colon 10 years and eight months after her hysterectomy.

The two Supreme Court cases belong to a special class of medical malpractice claims known as "sponge cases" - cases where foreign objects are improperly left inside the patient following a surgical procedure. Unlike many lawsuits about mis-diagnoses or mistreatment, in sponge cases there is no question that a medical mistake was made and usually no question about who was responsible. As a result, the doctors and hospitals involved in these cases are very likely to be held responsible if they cannot get the Court to dismiss the claims for technical reasons.

Emmalene Rankin's Case:

In 1995, Emmalene Rankin had a hysterectomy at Southwest Texas Methodist Hospital in San Antonio. Ten years and eight months later, after pain sent her to a succession of doctors, a surgeon finally discovered the cause of her medical problems, an old surgical sponge that had been left inside her from her 1995 surgery was lodged in her abdomen.

Rankin filed a lawsuit against the hospital and two doctors, but the judge dismissed the lawsuit for violating the statute of repose, enacted in 2003 by the Texas legislature as part of "tort reform" legislation designed to lower medical and insurance costs by reducing the number of malpractice lawsuits and limiting the size of malpractice awards. According to the statute of repose enacted in 2003, "all claims must be brought within 10 years or they are time barred." The Court of Appeals re-instated the lawsuit last year ruling that the statute of repose violated the Texas Constitution's "Open Courts" provision. The Court of Appeals ruled that while "the Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit."

Attorneys for the hospital and doctors being sued claim that the legislature intended to limit the time period that these claims can be brought. However, Rankin's lawyers point out that the intent of the legislature is irrelevant if the law violates the Constitution. The Texas Constitution trumps legislative power, patients must be given a chance to discover their injury before losing their constitutional right to access the court system, he argued.

This issue points out the issue on our legal system that the Constitution is the supreme law of the land, and the legislature does not have the power to enact laws that violate the Constitution. On other tort reform issues, the insurance companies and doctors' lobbies realized that the tort reform issues presented a constitutional problem so they brought the issue to the voters of the State of Texas by asking the voters to approve a constitutional amendment which enabled the legislature to enact the tort reform measures that limited damage awards.

Tangie Walters' Case:

Tangie Walters case is also a sponge case. In 1995, after giving birth to her child, Tangie Walters had a tubal ligation to prevent future pregnancies. Following the surgery, Mrs. Walters report abdominal pain that nurses at Cleveland Regional Medical Center dismissed as gas pains. In addition, Dr. Keith Spooner indicated that abdominal cramps were caused by uterine contractions from breast feeding, prompting Walters to bottle-feed her child. Over the next 9½ years, Walters visited several doctors to treat chronic abdominal pain and other ailments - bladder and lymph node infections, vaginal bleeding, pneumonia-like symptoms and fatigue. In 2005, a surgeon finally discovered the cause of her problems. The doctor found a sponge lodged against her small intestine. When these sponges and gauzes are left inside a patient after surgery, they can damage organs and produce inflammations, abscesses or a fibrous buildup that can be mistaken for a tumor.

Walters sued Spooner, the hospital and a nurse, but a Houston-area trial court dismissed the lawsuit for violating the statute of limitations. Walters appealed, arguing that the two-year time limit violated the Texas Constitution's open courts provision - which guarantees access to the legal system for those with a valid claim - because she did not have a legitimate chance to discover the cause of her chronic illnesses. The Court of Appeals dismissed the lawsuit and blamed Mrs. Walters for failing to diligently investigate the cause of her pain. Although the pain presented a reasonable opportunity to discover the sponge before the legal deadline, the court said, Walters waited two years and three months to begin seeing a succession of doctors.

"Pain itself can be an indicator of injury," the court ruled.

Each year, scores of lawsuits against medical professionals are dismissed because the Court finds that the patient did not bring the lawsuit in a timely manner. Often, such as in Mrs. Walters' case, the issue is whether the patient should have discovered the problem sooner and brought the lawsuit in a more timely manner. These issues are extremely difficult and complex, and greatly favor the medical professionals aspatients do not have the ability and resources to diagnose themselves, and even the medical professionals they see for their problems often cannot determine the source of the problem for an extended period of time. Then, even when the problem is located, the procedural legal hurdles that have been put in place that are designed to discourage lawsuits from being filed against medical professionals take a substantial amount of time to complete before the attorney can even decide if a lawsuit is appropriate.

Richard Sheehy a lawyer for one of the hospitals involved in these two cases argues that patients should not be given an opportunity to discover the wrong-doing of medical professionals and to hold them accountable for their actions by urging the Supreme Court to create an absolute two-year limit on all medical malpractice lawsuits, whether or not the injury could be discovered before the time limit passed. "I certainly believe this court may decide that ... the Legislature may impose a strict two-year statute of limitations, and 'we're sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause."

In the end, these should be cases about providing the Constitutional guarantees to citizens of our state, but the political forces including the efforts of the Texas Attorney General are obviously at play in these matters as there is no explanation as to what the State's interest is to justify why the Texas Attorney General would try to get involved to lobby for doctors and hospitals in a private lawsuit. The concern about political influence is very real when examining the track record of the Texas Supreme Court over the past few years in protecting patient's and consumer's rights against big business, corporate defendants, and medical professionals.

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Class Action Lawsuits Against Credit Card Companies Filed
November 20, 2009
Topic: New Laws and Legislative Updates

A Rhode Island woman is suing Citibank, claiming the financial giant is trying to squeeze money out of its credit-card customers in advance of changes in federal law due to take place in February 2010. In July 2009, Citibank notified Murphy that it was raising the variable annual percentage rate on her card to 29.99 percent, despite that her account was in good standing and that her original credit agreement does not expire until April 30, 2010. The lawsuit filed in U.S. District Court earlier this week by Providence lawyer Peter N. Wasylyk on behalf of Portsmouth resident Michol K. Murphy states that Citibank has violated the terms of her credit-card agreement by jacking up the annual percentage rate on her account without cause.

Meanwhile a lawsuit against Citizens Financial Group claims that ATM withdrawals and debit transactions are a trap into which unwary customers fall.

Following an uproar about the questionable actions of credit card companies and banks, the Credit Card Accountability, Responsibility, and Disclosure Act was passed in May 2009 to protect consumers. A copy of that Act is attached.

Attachments:
CreditCardAccountabilityResponsibilityandDisclosureAct.pdf

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CBS 11 Report On Dangerous Driving Zones for 18 Wheeler Accidents
November 19, 2009
Topic: 18 wheeler Accidents

CBS 11 News ran a report on dangerous driving zones in the Dallas Fort Worth area. Below, is a link to the story and the video. http://cbs11tv.com/local/big.rig.crashes.2.1316635.html

Below are a few of the highlights of the CBS report:

1. Texas leads the nation in accidents involving 18 wheelers;
2. The most deadly stretch of highway was from I-20 from Benbrook to Balch Springs (14 deaths);
3. The most deadly highway intersection was at I-35E and I-20 (4 deaths);
4. The most non-fatal truck accidents on I-30 near Cockrell Hill;
5. Dallas County had the most fatality accidents in the past 5 years than any other county in Texas with 75 deaths;
6. From I-45 in downtown Dallas to I-20 (5 fatalities I the past 5 years);
7. I-30 from Fort Worth to Dallas (12 fatalities over the past 5 years); and
8. I-35W to Highway 114 (14 non-fatal accidents)

In addition, according to a NTSB study, 90% of the crashes involving 18 wheelers were attributed to driver error. In addition, a TxDoT study showed that restricting 18 wheelers from driving in the left lane resulted in a dramatic decline in the number of accidents involving 18 wheelers.

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2009's Most Dangerous Toys
November 19, 2009
Topic: Defective Products: Product Recalls

Two consumer watchdog groups have released their lists of dangerous toys. The World Against Toys Causing Harm (W.A.T.C.H.), released is annual list of the 10 worst children's toys, while the Center for Environmental Health released its list of toys they believe have dangerous levels of lead paint.

WATCH's list of toys typically have a choking hazard for small children, a risk of head injury or a risk of eye injuries. "A lot of the same hazards we see, year after year, are still appearing on the shelves," said James Swartz, an attorney and director of group that has produced the list each year since 1972. In previous years, the group has had some success in getting some toys pulled from the shelves. The need for safe toys is obvious when you consider that the Consumer Products Safety Commission reports that in 2008 at least 19 toy-related deaths occurred in the United States alone, and that there were also about 235,300 toy-related injuries treated in hospital emergency rooms.

WATCH'S 2009 List of Toys they considered dangerous included:

1. DISNEY-PIXAR WALL-E FOAM ROCKET LAUNCHER
2. MOON BOARD POGO BOARD
3. CURIOUS BABY CURIOUS GEORGE COUNTING - MY FIRST BOOK OF NUMBERS
4. THE DARK KNIGHT BATMAN FIGURE
5. X-MEN ORIGINS SLASHIN' ACTION WOLVERINE.   The group said the Wolverine has pointed plastic claws protruding some 1.5 inches from each fist. The right claw pops out and retracts upon impact, while the left stays rigid upon contact.
6. LOTS TO LOVE BABIES - "mini nursery
7. JUST KIDZ JUNIOR MUSICAL INSTRUMENTS
8. CAT rugged mini.    A Play School "Caterpillar" dump truck has a wheel that with a hard tug can be pulled off, potentially leaving a child as young as 18 months - the suggested age group for the toy - holding a 3-inch metal spike.
9. PUCCI PUPS MALTESE, and
10. SPY GEAR VIPER-BLASTER

Warnings on packaging for a pogo board said that an elastic cord, if pulled taut and then released, "could spring back and cause injury," and that inexperienced users should wear safety gear

Although many of these products have warning labels. The WATCH group recognizes that children will often ignore those warnings, and those the children will be exposed to the specific hazard that the manufacturer is warning against. "When you see all kinds of warnings about where to use the product, when to use the product, how to use the product - it's best to stay away from the product," said Swartz.

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The Center for Environmental Health tested 250 children's products being sold this year and reports that it found Children's toys carrying the Barbie and Disney logos have turned up with high levels of lead in them, according to a California-based advocacy group -- a finding that may give consumers pause as they shop for the holiday season.

The Center for Environmental Health tested about 250 children's products bought at major retailers and found lead levels that exceeded federal limits in seven of them. Lead is known to be dangerous because it can cause irreversible brain damage.

The toys making the list for high lead levels were:

1. Barbie Bike Flair Accessory Kit
2. Disney Tinkerbell Water Lily necklace.
3. Dora the Explorer Activity Tote,
4. two pairs of children's shoes,
5. a boy's belt and
6. a kids' poncho.
   

California Attorney General Jerry Brown has sent letters to Target, Wal-Mart and the other retailers who sold the seven products, warning that children's goods on their store shelves were found to contain illegal levels of lead and should be pulled immediately.

Following a number of revelations about lead-tainted toys in 2007, including the recall of over 2 million toys sold by Mattel, a product safety law was enacted that contained strict limits on the amounts of lead and chemicals allowed in products made for children 12 years and younger.

Disney said the Tinkerbell necklace was tested by its licensee, Playmates Toys, before being distributed -- and that it complied with all federal and state consumer safety regulations.

The Center for Environmental Health in Oakland, Calif., said the Barbie toy was bought at Tuesday Morning and the Tinkerbell jewelry was purchased at Walgreens. The other products the center said had high lead came from TJ Maxx, Sears, Wal-Mart and Target.

The Consumer Product Safety Commission, which regulates toys and thousands of other products, is looking into the matter.

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