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Runaway Toyota Cases Ignored

Mike Kelly — Tue, 10 Nov 2009 10:49:43 GMT

Safety investigators dismissed numerous reports of sudden acceleration, then said data were lacking.

From the Los Angeles Times:

More than 1,000 Toyota and Lexus owners have reported since 2001 that their vehicles suddenly accelerated on their own, in many cases slamming into trees, parked cars and brick walls, among other obstacles, a Times review of federal records has found.

The crashes resulted in at least 19 deaths and scores of injuries over the last decade, records show. Federal regulators say that is far more than any other automaker has experienced.

Owner complaints helped trigger at least eight investigations into sudden acceleration in Toyota and Lexus vehicles by the National Highway Traffic Safety Administration in the last seven years. Toyota Motor Corp. recalled fewer than 85,000 vehicles in response to two of those probes, and the federal agency closed six other cases without finding a defect.

But those investigations systematically excluded or dismissed the majority of complaints by owners that their Toyota and Lexus vehicles had suddenly accelerated, which sharply narrowed the scope of the probes, the Times investigation revealed.

Federal officials eliminated broad categories of sudden-acceleration complaints, including cases in which drivers said they were unable to stop runaway cars using their brakes; incidents of unintended acceleration lasting more than a few seconds; and reports in which owners did not identify the possible causes of the problem.

NHTSA officials used the exclusions as part of their rationale to close at least five of the investigations without finding any defect, because -- with fewer incidents to consider -- the agency concluded there were not enough reported problems to warrant further inquiry. In a 2003 Lexus probe, for example, the agency threw out all but one of 37 customer complaints cited in a defect petition. It then halted further investigation, saying it "found no data indicating the existence of a defect trend."

Meanwhile, fatal crashes involving Toyota vehicles continued to mount.

In a written statement, the NHTSA said its records show that a total of 15 people died in crashes related to possible sudden acceleration in Toyota vehicles from the 2002 model year and newer, compared with 11 such deaths in vehicles made by all other automakers.

The Times located federal and other records of 19 fatalities involving Toyota and Lexus vehicles from the same model years in which sudden or unintended acceleration may have been a factor, as well as more than 1,000 reports by owners that their vehicles had suddenly accelerated. Independent safety expert Sean Kane, president of Safety Research and Strategies, said he has identified nearly 2,000 sudden-acceleration cases for Toyota vehicles built since 2001.

Other experts say the numbers may be far higher, pointing to a 2007 NHTSA survey of 600 Lexus owners that found 10% complained they had experienced sudden acceleration.

Most sudden accelerations did not result in a crash, but there were notable exceptions. Bulent Ezal, a retired engineer, plunged 70 feet off a Pismo Beach cliff into the Pacific Ocean surf. He was hospitalized with minor injuries, but his wife of 46 years was killed.

"By the time they pulled me out, the tide was about to cover the car," Ezal said.

He said his 2005 Camry had suddenly accelerated in a parking lot.

In its research, The Times examined thousands of federal defect investigation records, complaints filed with NHTSA by Toyota and Lexus owners, lawsuits against the company, and reports by independent safety experts and local police agencies.

Toyota has been under a spotlight since Aug. 28, when off-duty California Highway Patrolman Mark Saylor and three members of his family died in a Lexus ES 350 that accelerated to more than 100 mph and crashed in San Diego County.

Toyota has blamed the Saylor crash on an incorrectly installed floor mat that jammed the accelerator pedal. The company announced a recall of 3.8 million vehicles in September and is designing a fix aimed at preventing sudden acceleration caused by floor mats.

The recall affects the following Toyota models: the 2007-2010 Camry, the 2004-2009 Prius, the 2005-2010 Avalon, the 2005-2010 Tacoma and the 2007-2010 Tundra, as well as the 2007-2010 Lexus ES 350 and the 2006-2010 Lexus IS 250 and IS 350.

Last week, the NHTSA called the issue a "very dangerous problem" and said the remedy remains to be determined.

The agency declined a request for interviews, but issued a statement defending its past actions, saying its officials have continuously monitored Toyota vehicles for potential defects and that many of the reports of sudden acceleration involved only momentary surges of engine power that did not result in any loss of vehicle control.

"NHTSA takes every allegation of safety problems seriously and that is why we read every consumer complaint within one business day of its receipt," the agency said. "In the case of complaints about sudden acceleration in Toyota vehicles NHTSA moved very quickly to respond to them."

Toyota Motor Corp. defended its Toyota and Lexus vehicles and the validity of prior investigations.

"Over the past six years, NHTSA has undertaken several exhaustive reviews of allegations of unintended acceleration on Toyota and Lexus vehicles. In each case, the agency closed the investigation without finding any electronic engine control system malfunction to be the cause of unintended acceleration," the company said in a statement.

Whatever the cause, Toyota and Lexus owners have grappled with the dangerous consequences.

* Jean Bookout awoke in an Oklahoma hospital a month after a crash in her 2005 Camry.

She said the car sped out of control on a freeway, then smashed into an embankment after she swerved it onto an exit ramp, leaving behind long skid marks from attempts to stop the vehicle with her brakes and emergency brake.

Bookout sustained permanent memory loss, and her best friend died.

"I did everything I could to stop the car," she said Tuesday.

* Nancy Bernstein, a vice president for a Long Beach community garden and former science teacher, said she was taken on an 8-mile high-speed ride by her 2007 Prius while she was following her husband in a group bicycle tour in Wisconsin. She said her Prius accelerated from 45 mph to 75 mph on a winding, two-lane highway crowded with 100 cyclists.

"I was sure I was going to kill someone on a bicycle or myself," she recalled. "I stood on the brakes with both feet. All of a sudden, I see fire. I thought, sure, my brakes are on fire. I thought about maybe trying to sideswipe a tree to slow down."

Eventually she was able to stop at the bottom of a hill, using her brakes and emergency brake. A local resident rushed out with a fire extinguisher.

* Dr. David. W. Smith, an emergency room physician from San Dimas, has yet to receive a satisfactory answer from Toyota about his Lexus GS 300. Smith said he was driving with his cruise control in Central California on Highway 99 last year, not touching the accelerator, when suddenly the vehicle accelerated to 100 mph.

The brakes did not release the cruise control or slow down the vehicle, Smith recalled. Finally, he shifted into neutral and shut off the engine. "I am sure it is the cruise control," he said. "I haven't used it since."

In reviewing consumer complaints during its investigations, the NHTSA relied on established "positions" that defined how the agency viewed the causes of sudden acceleration. Cases in which consumers alleged that the brakes did not stop a car were discarded, for example, because the agency's official position was that a braking system would always overcome an engine and stop a car. The decision was laid out in a March 2004 memorandum.

When asked to submit its own complaint data to the NHTSA, Toyota eliminated reports claiming that sudden acceleration occurred for "a long duration," or more than a few seconds. Elsewhere, the company said a fail-safe in its throttle system makes such an event impossible.

NHTSA officials acknowledged in a statement that the exclusions were made, but defended the practice.

"While some vehicles may be excluded from the scope of an investigation into a specific defect allegation, all are continuously reviewed, along with other relevant information, in order to identify other emerging issues of concern," the statement said.

A reduced pool of reports created the appearance that the problem was much smaller than the total number of complaints suggested, making a broader vehicle recall seem less necessary, critics say.

"NHTSA has ways of pigeonholing reports, categorizing them as brake failure rather than sudden acceleration," said attorney Edgar Heiskell of Charleston, W.Va., who is suing Toyota over a fatal crash in Flint, Mich. "By excluding these braking and long-duration events, they have taken 80% of the cases off the table."

In 2004, the NHTSA began a probe into a defect petition filed by Carol J. Mathews, a registered nurse who was then director of health services for the Montgomery County, Md., school system. Matthews reported that she had her foot on the brake of her 2002 Lexus ES when it took off and hit a tree.

In its subsequent investigation, the NHTSA and Toyota both winnowed down other reports of sudden acceleration involving 2002 and 2003 Lexus ES and Camry models.

When the agency asked Toyota to disgorge all of the reports it knew about, the company eliminated an unknown number in five broad categories, including cases in which drivers said they were unable to control a runaway engine by applying the brakes.

In closing the probe, federal investigators said only 20 cases were considered relevant.

But The Times' examination of consumer complaints and a sampling of reports from Toyota dealers found more than 400 reports of sudden acceleration involving those models. And federal records show that the NHTSA knew about 260 of those cases and another 114 cases identified by Toyota.

As for its position that brakes can always overcome a vehicle's engine, the safety agency and Toyota now acknowledge that a braking system cannot always counter a wide-open throttle, as is the case in sudden acceleration.

The NHTSA began investigating the problem of sudden acceleration in the mid-1980s, after a flood of complaints about the Audi 5000. One outgrowth of the subsequent investigation was the NHTSA view that acceleration events at high speed are a different issue than events at low speed.

In 2005, for example, Jordan Ziprin of Phoenix, who had experienced a minor accident he blamed on sudden acceleration, filed a defect petition with the NHTSA that included nearly 1,200 owner complaints about Toyota vehicles. The automaker argued that the majority should be eliminated because they dealt "with two completely different issues."

When owners said the "vehicle unintentionally or suddenly 'accelerated,' " Toyota claimed that represented a different issue than when they said "the vehicle 'surged' or 'lurched.' " The NHTSA ultimately went a step further, eliminating every single complaint except Ziprin's, finding them to have "ambiguous significance."

The agency also has thrown out evidence for other reasons. In 2008, the NHTSA opened a probe of the Toyota Tacoma after a consumer found that the truck had accumulated 32 times as many sudden-acceleration complaints as any other pickup. But Toyota at the time said the complaints stemmed from "media and Internet exposure." The NHTSA closed the case without a finding after it whittled down a list of more than 450 complaints to just 62.

"To this day I still can't find evidence online of a flood of media exposure," said William Kronholm, the Helena, Mont., man who said he requested the investigation after he experienced two acceleration events in his 2006 Tacoma. "They never dealt with the question I presented in any real way."

The NHTSA has declined to reconsider previous investigations, even in the face of new evidence.

In March, Jeffrey Pepski of Plymouth, Minn., formally requested that the NHTSA reopen two closed investigations into Toyota and Lexus vehicles for the acceleration problem, arguing in part that 10 other motorists had experienced sudden acceleration that could not be explained by floor mats.

The NHTSA looked at the 10 cases and tossed them out. The agency's way of looking at them sharply contrasted with the drivers' original accounts.

In one case, the driver of a 2007 Lexus ES 350 reported that the sedan accelerated into a building, bounced backward, struck another vehicle and ended up on top of a snowbank.

But federal officials described the same case as a "single incident of alleged engine surge while parking vehicle. No trouble found by dealer."

The NHTSA denied Pepski's petition last week, arguing that further study was "not warranted."

ralph.vartabedian@ latimes.com

ken.bensinger@latimes.com

Times researcher Scott J. Wilson and Times staff writer Melissa Rohlin contributed to this report.

Originally posted at InjuryBoard by Mike Kelly

Stryker Unit, Ex-Chief, Indicted for Misleading FDA

Mike Kelly — Tue, 03 Nov 2009 09:09:14 GMT

Oct. 28 (Bloomberg) -- A Stryker Corp. unit that makes bone-surgery products and its former president were indicted by a grand jury for misleading the U.S. Food & Drug Administration about the uses of its products, prosecutors said.

Stryker Biotech LLC and Mark Philip, who was its president from 2004 to 2008, are accused along with three sales managers of promoting the use of its therapeutics in a manner contrary to their FDA-approved use, Acting U.S. Attorney Michael K. Loucks in Boston said today in a statement.

The products were made to stimulate bone growth in the spine and long bones, Loucks said. The men promoted the use of its implant and putty with a bone-void filler in “recipes” requiring medical personnel to “mold the combined product into ‘cigars,’ ‘Tootsie Rolls,’ or ‘Vienna sausages,’” Loucks said.

Philip and the other men are charged with five counts of wire fraud, punishable by as long as 20 years in prison, and one count of conspiracy. The company was charged with fraud. Both it and Philip are also accused of making false statements to the FDA.

Stryker, based in Kalamazoo, Michigan, said in a statement it was “disappointed” and hopes to reach “a fair and just resolution of this matter.”

‘Material Effect’

“Conviction of these charges could result in significant monetary fines and Stryker Biotech’s exclusion from participating in federal and state health care programs, which could have a material effect on Stryker Biotech’s business,” the company said in the statement.

The case was filed today in federal court in Boston, said a spokeswoman for Loucks. Philip, who surrendered to authorities, made his initial court appearance there today before U.S. Magistrate Judge Judith Dien, said the spokeswoman, Christina DiIorio-Sterling.

“Mark Philip conducted himself honorably through out his time at Stryker,” his attorney, Stephen Huggard, said in a telephone interview after the court appearance.

Philip plans to enter a plea of not guilty and proceed to trial, said Huggard, who chairs the White Collar & Government Enforcement Practice Group at the Boston law firm Edwards Angell Palmer & Dodge LLP, according to the firm’s Web site.

The Stryker products, identified by Loucks as OP-1 Implant and OP-1 Putty, were approved by the FDA to treat a condition affecting fewer than 4,000 patients under a “Humanitarian Device Exception.” They couldn’t be sold for a profit, the prosecutor said.

Stryker and Philip are accused of making false statements to the FDA about how many patients were being treated annually with the putty, said Loucks.

The mixture of the OP products with the bone void filler, Calstrux, hadn’t been approved by the FDA and caused “serious medical problems” in some patients, he said.

By Andrew M. Harris and Cary O’Reilly

Originally posted at InjuryBoard by Mike Kelly

Nine deaths linked to robes; recall expanded

Mike Kelly — Fri, 23 Oct 2009 14:43:01 GMT

WASHINGTON -- Highly flammable women's robes sold by Blair LLC are now linked to nine deaths, and the company is expanding a recall to include more products imported from the Pakistani manufacturer.

Since June, Blair LLC of Warren, Pa., has received four more reports of deaths linked to the full-length women's chenille robes, according to a Thursday announcement from the Consumer Product Safety Commission. Earlier this year, there were reports of five deaths linked to the robes.

The products were initially recalled in April by Blair after it learned of three robes catching on fire, including one report of second-degree burns. Some of the products failed to meet federal flammability standards and they present a risk of serious burns to consumers if the garments are exposed to an open flame.

The consumer agency and Blair are expanding the recall to include more chenille robes and three other chenille products, all made by A-One Textile & Towel, of Karachi, Pakistan, according to the consumer agency. Blair received one report involving one of the newly recalled garments catching fire, but no reports of injuries.

About 300,000 units of the garments are now recalled, including the full-length women's chenille robes, women's chenille jackets, women's chenille lounge jackets, and women's chenille tops.

Most of the deaths linked to the full-length chenille robes occurred when the victims were cooking. The victims were mostly in their 70s and 80s, said CPSC spokesman Scott Wolfson. All nine reported deaths occurred before the April recall announcement.

"This robe is highly flammable, flames travel quickly up the robe," said Wolfson. "It's a deadly risk to women."

The recalled products were sold in Blair catalogs, online and at Blair stores in Warren, Pa.; Grove City, Pa.; and Wilmington, Del., from July 2000 through April 2007.

Most of the newly recalled items were sold before December 2004, the company said in a statement.

"Out of an abundance of caution we are recalling these additional products as well," according to the company. "Over the past several months, we have been working aggressively to retrieve the 162,000 chenille robes that were previously recalled."

For more information on the affected products and item numbers, consumers can call Blair at 877-392-7095 or visithttp://www.blair.com/recallorhttp://www.cpsc.gov.

From The Washington Post

Originally posted at InjuryBoard by Mike Kelly

Bayer Sued, Accused of Hiding Yaz Risk to Boost Sales

Mike Kelly — Fri, 09 Oct 2009 09:36:16 GMT

Oct. 6 (Bloomberg) -- Bayer AG, Germany’s largest drugmaker, was sued by two Pennsylvania pension funds and accused of misrepresenting the safety and effectiveness of the Yaz contraceptive to boost sales.

Bayer unlawfully promoted the drug from March 2006 to March 2009 by concealing side effects including blood clots, heart attacks and pulmonary embolisms, two health and welfare funds for firefighters and city employees said in a federal court complaint made public today in Philadelphia.

The Yasmin family of birth control pills, known as Yaz, Yasmin and Yasminelle, were Bayer’s top-selling drugs last year, bringing in about $1.8 billion, a 17 percent increase over 2007.

About 300 cases have been filed against the company over Yaz. Roughly 200 have been filed in federal litigation consolidated in East St. Louis, Illinois. Another 50 have been consolidated in state court in Philadelphia.

Women who took the drug to prevent pregnancy or treat premenstrual disorder or acne may have suffered side effects including strokes, heart attacks, gallbladder disease and sudden death, according to the complaints.

Marcy Funk, a spokeswoman for Bayer, declined to comment on the pension funds’ lawsuit.

“We’re not aware of 300 cases’ being served,” Funk said today in a phone interview. “As of Sept. 24, Bayer has been served in 74 cases.”

Swiss Probe

Bayer announced Sept. 25 that Yaz is part of a Swiss health regulator’s investigation into the death of a woman who took the pill. The Swissmedic agency and an investigative judge are looking into the case of the woman, who died from a pulmonary embolism, or blockage of an artery in the lung.

The funds’ complaint was filed by the Philadelphia Firefighters Union Local No. 22 Health and Welfare Fund and the American Federation of State, County and Municipal Employees, District Council 47 Health and Welfare Fund.

Yasmin, which inhibits ovulation, is made with the active ingredient drospirenone. Several studies indicate that the compound causes an increase in potassium levels in the blood, which can lead to a condition known as hyperkalemia, according to the complaint.

Yaz and Yasmin are the only contraceptives to contain drospirenone, the complaint said. Hyperkalemia can disrupt normal heart rhythms and cause blood clots to form that can lead to heart attacks, pulmonary embolisms and strokes, lawyers for the funds said in the filing.

TV Commercials

Bayer concealed and minimized the risks associated Yaz when promoting the drug, the plaintiffs said. Television commercials “misleadingly and deceptively” promoted the drug for uses not approved by regulators, the complaint said.

In February, Bayer Corp., a unit of Leverkusen, Germany- based Bayer, announced it would spend $20 million for “corrective advertising” as part of a 27-state settlement of claims it misled consumers about Yaz.

The accord resolved complaints that Bayer promoted the drug as an acne treatment and other conditions for which its use hadn’t been approved by the U.S. Food and Drug Administration.

The case is Philadelphia Firefighters Union Local No. 22 Health and Welfare Fund v. Bayer Healthcare Pharmaceuticals Inc., 2:09-cv-04567, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).

To contact the reporter on this story: Sophia Pearson in Wilmington, Delaware, at spearson3@bloomberg.net.

~From Bloomberg.com, October 9, 2009

Originally posted at InjuryBoard by Mike Kelly

South Carolina Jury Awards $10 Million In Health Insurance Rejection Case

Brad Hewett — Thu, 08 Oct 2009 17:07:20 GMT

The South Carolina Supreme Court upheld a multimillion verdict last month against an insurer which the Justices said revoked a man’s health policy after he tested positive for HIV based solely on a nurse writing down the wrong year for the test. The Court called Fortis Insurance Company’s actions “highly reprehensible” but reduced punitive damages awarded from $15 million to $10 million. The policyholder first found out he might have HIV when he tried to donate blood in April 2002. The Red Cross let him know his sample tested positive, and a trip to his personal physician confirmed the diagnosis.

Fortis said it revoked the policy because the policyholder didn’t reveal his diagnosis when he applied for insurance in May 2001 as the then 17 year old prepared to head to college and could no longer be covered under his mother’s policy. The company cited a note made by a nurse on a medical chart that incorrectly gave the wrong year for the test confirming the HIV diagnosis, placing it one day before the policyholder’s application for insurance.

The committee for the insurance company that decides whether to revoke policies heard the policyholder’s case along with 45 others in a two-hour session. The members were given a report from an underwriter that included the note” “Technically, we do not have the results of the HIV test. This is the only entry in the medical records regarding HIV status. Is it sufficient?” The policyholder hired a lawyer who sent the company the original test results with the correct date. But a second committee also upheld revoking the insurance and the policyholder didn’t have coverage for 20 months before Fortis reversed its decision, according to trial testimony. Fortis, which now does business as Assurant Health, appealed the case. The company’s “conduct involved repeated acts of deliberate indifference for more than two years,” the Justices wrote in their decision.

Source: Associated Press

Originally posted at InjuryBoard by Brad Hewett

Federal program misses problem nursing homes

Mike Kelly — Fri, 02 Oct 2009 10:39:36 GMT

WASHINGTON — A government program that brings extra scrutiny to poorly performing nursing homes leaves out hundreds of troubled facilities, investigators report.

The Centers for Medicare and Medicaid Services identifies up to 136 nursing homes as "special focus facilities" subject to more frequent inspections because of their living conditions. In every state except for Alaska, there are between one and six such facilities. But investigators said four times as many homes, or 580, could be considered among the nation's worst.

The report from the Government Accountability Office does not identify the homes.

The chairman of the Senate Aging Committee said it indicated to him that the special focus is too limited. At the least, Sen. Herb Kohl, D-Wis., wants more explicit warnings about nursing homes as people study quality ratings on a Medicare Web site, Nursing Home Compare — http://www.medicare.gov/nhcompare

"If far more than 136 nursing homes boast the bleakest conditions, then perhaps we should consider expanding" the program, said Kohl, who requested the study with Sen. Charles Grassley, R-Iowa.

The GAO said it made just that recommendation two years ago. Federal officials agreed with the concept, but said they didn't have the resources to do so.

The report being released Monday also suggests adjusting the methods used to identify the worst performing nursing homes. The home now under special attention are the worst performing in their state. But not all states are created equal when it comes to nursing home quality. Comparing the homes nationally would ensure that scarce resources go to inspecting the nursing homes that truly need the most attention, according to the report.

CMS officials told the GAO they disagreed with relying solely on a national comparison. The agency said it would consider an approach that allows for a national comparison to have more weight.

Some states have far more poorly performing nursing homes than are designated as special focus facilities. For example, Indiana had 52 nursing homes listed as among the worst performing, but only four are on the special list; California has 40 considered among the worst performing, but only four are on the list.

Ohio has five nursing homes on the special focus list but only three that investigators considered among the nation's worst.

Investigators also found that the worst-performing ones tend to be for-profit facilities affiliated with a chain of nursing homes. They are more likely to be a larger facility, averaging 102 residents, while other nursing homes not identified as among the worst had 89 residents on average.

Nationally, there are about 16,000 nursing homes. So the 580 homes that GAO describes as the worst-performing represents almost 4 percent of the nation's nursing homes.

Grassley urged policymakers and regulators to pay attention to the report, and use the findings to improve quality and better protect nursing home residents.

On the Net:

Government Accountability Office: http://www.gao.gov
Senate Special Committee on Aging: http://www.aging.senate.gov

Originally posted at InjuryBoard by Mike Kelly

Toyota Announces Recall of Floor Mats That May Jam Accelerators

Will Parker — Thu, 01 Oct 2009 11:28:08 GMT

USA Today, in an article by Chris Woodyard, reported that Toyota said Tuesday it intends to recall 3.8 million vehicle floor mats due to a flaw that may cause accelerators to become jammed. The federal government reported at least 102 drivers have reported jammed accelerators in late-model Toyota and Lexus models.

The recall was likely the result of an accident on Aug. 28 in which four were killed in a Lexus driven by an off-duty California Highway Patrol

In a disturbing 911 call, the doomed passengers indicated the accelerator was stuck and that they were unable to turn the engine off. The vehicle was traveling at an estimated speed of 120 mph. The Lexus was a dealer service loaner that could have possibly had mats from another model.

The California accident "was certainly an eye opener for all of us," said Irv Miller, a vice president of Toyota's United States sales operation.

Toyota asked owners to remove all driver's side mats. The company's spokesman, John Hanson has also stated replacing the mats with a paper mat could actually be worse as it could slide or jam. Toyota is working on a replacement mat or other solution.

The government issued a statement that thirteen crashes and five deaths were likely caused by the defect.

For the full article:

USA Today: http://www.usatoday.com/money/autos/2009-09-29-toyota-floor-mats-recall_N.htm

Originally posted at InjuryBoard by Will Parker

Medical Malpractice Caps May Be Removed by Two State Supreme Courts

Will Parker — Tue, 29 Sep 2009 16:08:53 GMT

A recent article from American Medical News by Amy Lynn Sorrel states Supreme Court judges in two states are set to decide whether or not to do away with limits on non-economic damages in medical malpractice cases. Georgia's Supreme Court Justices will decide whether the state’s $350,000 cap violates Georgia's state constitution. Maryland's Court of Appeals, on the other hand, will decide whether state caps should apply only in cases resolved through arbitration.

What would this mean to you if you are a victim of a doctor's negligence? No matter what happens with these cases, those injured as a result of medical malpractice will maintain the ability to recover on any damages that result in actual costs, such as medical expenses. However, non-economic damages are what is at stake here.

To illustrate - you go in for an amputation of your left and a doctor removes the right leg....and then has to remove the left leg. Now, you have no legs and you can only recover $350,000 for the pain and suffering caused by the mistake. While that sounds like a lot of money, would the inability to ever walk again or, at a minimum, would being forced to have two prostetic limbs for the remainder of your life only be worth $350,000?

Of course, my example is extreme but that sort of thing, and even worse, do happen. As there are so many possibities, I don't see how you could fairly carve out exceptions to the caps. In my opinion, the amount a person is entitled to as a result of pain, suffering and emotional distress should be left up to a jury as is the case with any other type of case.

Why doctors believe they deserve a free pass, or a cheaper pass at least, defies logic. They state their premiums will go up. The solution would be not to make mistakes. If I make a mistake and hit someone with my car, my car insurance goes up....I don't see a difference. Mistakes happen. How expensive the mistake is should, in my opinion, be left to a group of the victims peers as the value of human life, pain, suffering and emotional distress is not easy to determine and certainly should not be capped, at least not by judges and definitely not politicans who, being realistic, are possibly in the pockets of the physician's lobbyists.

Thoughts and comments are always appreciated.

Originally posted at InjuryBoard by Will Parker

Doctors File Suit Against KFC Over Its Grilled Chicken

Mike Kelly — Fri, 25 Sep 2009 11:07:57 GMT

After losing its first battle against fast-food restaurants, a doctors group went back to court Wednesday and accused the KFC chain of selling grilled chicken with dangerous levels of a cancer-causing chemical.

In a lawsuit in San Francisco Superior Court, the Physicians Committee for Responsible Medicine accused KFC of violating California's Proposition 65, which requires businesses to warn customers if they are being exposed to substances that cause cancer or birth defects.

The chemical cited in the lawsuit, known as PhIP, is a byproduct of the grilling process and was added to the state's list of carcinogens in 1994. The doctors group said an independent laboratory found the substance in every one of 12 grilled chicken samples bought from six East Bay KFC restaurants in May.

The suit seeks an order requiring customer warnings in all KFC restaurants in California and penalties to the state of as much as $2,500 a day for violations.

The organization, which has 7,000 physician members, made the same arguments last year in a suit against other restaurants that sell grilled chicken. Burger King agreed to warn customers of the presence of PhIP, but other defendants, led by McDonald's, held their ground and won a ruling from a Los Angeles judge dismissing the case.

The judge said a federal law that requires labeling of some chicken products prohibits California from imposing stricter standards under Prop. 65. The doctors group is appealing.

The lawsuit faces another obstacle: The state attorney general's office, in response to a complaint from the physicians group, conducted its own study and concluded in 2006 that PhIP levels in cooked chicken were too low to require a Prop. 65 warning.

The attorney general's position isn't binding on the courts, but KFC cited the conclusion in its comment on the suit.

Company spokesman Rick Maynard said KFC's "Kentucky Grilled Chicken" product "meets or exceeds all federal and state regulations for food safety." The doctors organization, he added, "promotes a vegetarian agenda."

The group's scientific and policy adviser, Kristie Sullivan, agreed that it promotes a vegetarian diet but said the recent tests of KFC chicken confirmed that it contains a hazardous chemical.

"Because KFC promotes the grilled chicken as a healthy alternative to fried chicken, customers aren't aware that the danger exists," Sullivan said. She said the attorney general's office apparently relied on animal studies, which she said understate the effect of PhIP in humans.

Originally posted at InjuryBoard by Mike Kelly

Injuries and Deaths Lead to Cribs Recalls

Will Parker — Wed, 23 Sep 2009 12:09:18 GMT

Certain cribs are going to the crypt. Simplicity Inc. is now out of business. As of July 12, 2009 at least 13 children have died in cribs and basinets recalled by Simplicity. Considering the popularity of drop-side cribs, it is vital to get the warning out about drop-side crib related product recalls.

While cribs are often thought of as a safety zone for our children, federal regulators have become more and more alarmed by the safety problems related to cribs, causing millions of cribs to be recalled. According to federal records, more than 4.6 million cribs have been recalled since 2007. The Simplicity drop-side crib happens to be one of several on the list. In order to address the suffocation dangers of Simplicity’s drop-side cribs, the U.S. Consumer Product Safety Commission announced a product recall. According to federal officials, the risk of suffocation comes from the product’s ability to break or deform, which creates a death trap between the crib’s drop side and the mattress. In an effort to reduce injury and death, the CSPC is trying to reach consumers, day care providers, thrift stores, and online sellers to inform them to either discontinue use or stop selling this product. Unfortunately, product recalls only go so far. Many individuals never receive information about the risk associated with a product. In light of today’s economy, getting these warnings out becomes even more vital. Many people receive hand-me-down cribs, furniture, and child-related products.

While only 13 deaths have been reported in relation to Simplicity, dozens of deaths have been associated with drop-side cribs in the past few years. The most common problems with cribs today are:

1-Drop sides of the crib don’t stay on their tracks, creating a dangerous gap: Also, safety pegs create a problem. When the drop-side fails to miss these safety pegs it creates a dangerous risk along the drop side. Often, the reassembly of these cribs (whether someone moves, or passes the crib on to a friend) is finished without the safety pegs.

2-Mattress support failures; A dangerous gap can also result from mattress support failures, which can entrap the child and suffocate him/her. For example, Stork Craft cribs have been recalled due to fact that their metal mattress support brackets can crack and break.

3-Vertical slats/spindles on cribs can become broken, resulting in gaps where babies can get stuck: For example, cribs produced by Jardine Enterprises have been recalled three times due to the dangers presented by broken slats. The CPSC received more than 90 reports associated with this issue.

While the federal government makes an effort to regulate cribs, their requirements are somewhat bare-bones. In fact, most of the safety standards placed on crib manufacturers are voluntary ones that have been developed by ASTM International. And the only benefit from complying with these “voluntary standards” is that the crib manufacturer gets to place a JPMA, Juvenile Products Manufacturers Association, seal on their cribs. The ASTM International, which is a nonprofit manufacturing standards organization, plans to hold a meeting on July 21 to discuss crib safety. They are considering a proposal that aims to eliminate the manufacture of drop-side cribs. The effort to eliminate drop-side cribs from the market stems from the belief that there is no “fix” for the problem.

It is important to remember that just because a product is on the market it does not mean that it is safe. Parents should make a strong effort to keep themselves informed of product recalls. Even before product recalls are issued, parents should make their own evaluation of a product’s potential hazards. Don't forget, product recalls are issued on the basis of reported injuries and death. Stay alert as to known risks and potential problems when it comes to the products you allow your child to play with, sleep in, or be around.

Originally posted at InjuryBoard by Will Parker