Archive for April, 2010

Facts You May Not Know, but Should!- Hidden Dangers of Trampolines

April 30, 2010

Well, it looks like it will be 80 plus degrees and sunny outside for the first weekend of May here in the Nation’s Capital.  This means lots of outdoor activities; pool parties, lawn games, playing in the park…some will even have trampolines on their property, with the neighborhood kids coming over to use them.  CBS News reports on some of the hidden dangers of trampolines, as posted in an article today:        

Last year alone, an estimated 98,000 people were treated in emergency rooms for trampoline related injuries. 82 percent of them were children under the age of 15.

Trampoline safety expert Marc Rabinoff, of Metropolitan State College of Denver, Colo., calls trampolines “quad machines” because they can turn you into a quadriplegic in four seconds.”

Warnings on trampolines say no flips, no jumpers younger than 6 and only one jumper at a time, but those warnings are often ignored. Koeppen pointed out videos from YouTube that show children jumping and falling from trampolines.

Rabinoff says people don’t realize trampolines are a danger in their backyard. Rabinoff demonstrated to Koeppen how jumping with more than one person can throw you off.

The article goes on to state that ‘safety nets’ placed around the trampoline can reduce accidents by up to 50%.  However, they are not required by law.  In addition, and take note – insurance companies may not necessarily cover trampoline accidents on their policies.  Coming from Florida last year, where I practiced plaintiff personal injury law, I can tell you that I was contacted on more than one occasion by families who had a loved one injured as a result of a trampoline accident.  Each time I would check the homeowner’s policy of the responsible homeowner, (if they even had homeowner’s insurance; some didn’t) there was the EXCLUSION for such accidents!  No coverage!

The article also suggests that trampoline owners should erect fences around their property, to prevent others from wandering on the property and injuring themselves on or around the trampoline.  I, for one, will not be allowing my first-born son on any trampoline anytime soon.  In this line of work, you really do get to see the worst of what can happen, when a chain of events causes something to go terribly wrong.  Why ask for trouble?

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Stroke Warnings:Most People Who Experience Minor Strokes Do Not Recognize Its Symptoms

April 29, 2010

According to an article published by WebMD, a recent study suggests that most people who experience minor strokes or transient ischemic attacks (TIA’s) do not recognize their symptoms and/or do not seek timely medical attention.A stroke is generally defined as an interruption of blood flow to the brain.

Strokes can be divided into two categories: hemorrhagic strokes and ischemic strokes. TIA is a condition that manifests itself with stroke-like symptoms for less than 24 hours. TIA does not by itself result in lasting neurological damage. However, people who experience TIA episodes often develop strokes. According to the article, one in 20 patients with TIA will develop a major stroke.

After interviewing about 1000 patients, researchers concluded that about 70% of the patients did not recognize TIA or minor stroke symptoms and that less than half of the patients with these conditions sought medical attention within three hours from the onset of symptoms.    

If you are at an increased risk for developing a stroke, ask your doctor for information on TIA and stroke symptoms. Early medical intervention is key in treating stokes. Please take some time to familiarize yourself with some of the TIA/stroke symptoms.


According to the article, people who experience minor strokes may develop one or more of the following:

  • sudden numbness or weakness in the face, arms or legs, especially on one side of the body
  • sudden trouble speaking or understanding
  • confusion
  • sudden vision problems in one or both eyes
  • dizziness, loss of balance, or sudden trouble walking
  • severe headache with no obvious cause

Remember – time is of the essence in getting treatment. Certain therapies (e.g. tPA) simply can not be administered to you if too many hours pass.

Contributing author: Jon Stefanuca

Malpractice Verdict: NY jury renders verdict in excess of $60 million for brain damage from dystocia

April 29, 2010

Mary Swanson gave birth to Michael Swanson, October 10, 2003 at Northern Westchester Hospital in Mount Kisco, NY. While giving birth, Mary Swanson was found to have dystocia,  a condition in which the child’s shoulder becomes entrapped by the mother’s pubic bone.

Mrs. Swanson and her husband, Bruce, alleged that the obstetrician, Dr. Carla Eng-Kohn, and the hospital’s staff were negligent in properly performing Michael’s delivery.

Plaintiffs’ counsel also claimed that dystocia was a result of a nurse’s mismanagement of the delivery. Dr. Eng-Kohn was not present when the nurse initiated the pushing process. Swanson’s counsel contended that Mary Swanson’s unsupervised pushing led to the development of the dystocia.

The plaintiffs’ expert obstetrician also opined that eight or nine minutes passed before the dystocia was relieved, and the plaintiffs’ expert neurologist testified that the prolonged dystocia asphyxiated the baby. He stated his opinion that monitors indicated that Michael suffered two minutes of tachycardia, which is an abnormally fast heartbeat, and he suggested that the condition was an indication of distress. Plaintiffs’ counsel claimed that Michael was not crying when he was delivered and that the child’s face exhibited a bluish discoloration.

To complete delivery, excessive traction was applied to the baby’s head causing a brachial plexus injury and lateral medullary syndrome. The child’s residual injuries include moderate speech delays and the delayed ability to swallow and complications from aspiration pneumonia. Plaintiffs claimed Michael will need surgical intervention and/or need permanent residential care, intense speech, physical and occupational therapy.

Michael’s parents sought recovery of Michael’s past medical expenses, the cost of his future rehabilitative therapy, the cost of his future custodial care, his remaining future medical expenses, his future lost earnings, and damages for his past and future pain and suffering .

After hearing all the evidence, the jury found that Women’s Medical Associates was vicariously responsible for Dr. Eng-Kohn’s actions and along with the doctor, was assigned 75% of the total liability. Northern Westchester Hospital was charged with the other 25% liability. The Swanson’s were awarded a total of $60,939,847.00 for all damages.

Parental Pre-Injury Releases: A Victory for the Children of Florida!

April 29, 2010

Two years ago, when I was practicing law in Florida, the Florida Supreme Court decided the case of Kirton v. Fields.  As a consumer justice attorney, I was proud to be able to stand behind such a law and give it my support.  In Kirton, the Court held that public policy concerns negated the enforcement of pre-injury releases executed by parents on behalf of their minor children regarding participation in commercial activities.  Last week, the Florida House unanimously passed a Bill that supports the Florida High Court’s decision and limits the type of activities that may be included in such a release.  Senate Bill 2440 is the Bill that will help protect Florida’s children in this regard.

The Bill language relates to releasing parties of liability as it relates to “inherent risks” ONLY.  This risk is defined as:
[T]he dangers or conditions that are characteristic of, intrinsic to, or an integral part of the activity; the failure of the activity provider to warn of the inherent risks; and the risk that the minor child or another participant may act negligently or intentionally and contribute to the injury of the minor child.
Yesterday, the governor of Florida, Governor Crist, signed this pro-consumer piece of legislation into law.  KUDOS to the Florida Justice Association for their hard work and effort in helping to make sure this Bill got to the governor’s desk.

Cerebral Palsy: Cord Blood Stem Cell Research and Treatment in Clinical Trials – Update

April 29, 2010

For those of  you who follow our blogs, you know well that this is a topic of interest for us.  It bears repeating – our job as lawyers is to properly investigate potential claims of malpractice in areas such as cerebral palsy and seek redress for our clients when the evidence demonstrates a connection between birth injuries and medical care, but the much more important topic for our clients and victims of cerebral palsy is in the field of medical research. It is through research efforts – including clinical trials – that this dreaded condition will be ameliorated and hopefully eradicated. Trust me, after practicing law for over 35 years, I’m not worried about job security – the frailties of the human condition will more than suffice to fill our file cabinets with people to help due to the negligence of others.

We have reported previously on various topics involving cord blood and stem cell research as they relate to a number of conditions, including cerebral palsy.  It seems that months have passed since there has been any significant news about two programs underway: one at the Medical College of Georgia and the other at Duke.  Earlier this month, an update came across the social media network via a post by Singularity Hub – Cord Blood Stem Cell Treatment for Cerebral Palsy in Clinical Trial | Singularity Hub.

Here’s our encapsulated version regarding the studies and Singularity Hub’s report.

Photo provided by MSNBC

Duke University

According to the website ClincalTrials.gov, Duke began a clinical therapeutic trial – identifier: NCT00593242 – in January 2008 (estimated completion date of January 2011) whose primary purpose is listed as treatment of newborns with hypoxic ischemic encephalopathy (HIE) – inadequate oxygenation in the perinatal period for purposes of this study – through the controlled “collection, preparation and infusion of a baby’s own (autologous) umbilical cord blood in the first 14 days after birth if the baby is born with signs of brain injury.” For information concerning the inclusion and exclusion criteria for participation in this clinical trial, see the online posting. Essentially, the babies are then to be “followed for neurodevelopmental outcome at 4 – 6 and 9 – 12 months at Duke’s Special Infant Care Clinic. MRI’s will be obtained between postnatal weeks 1 and 4, and, for study purposes at 4 – 6 postnatal months.”

While other aspects of processing and administration are no doubt part of the key components of this project, it is readily apparent that the end-point goal is discovery of an effective treatment of cerebral palsy for the identified neonates in the study and then development of a second stage clinical trial to take such treatment modality to a greater number of potential beneficiaries.

Medical College of Georgia

For detailed information on this study, which began in February of this year, similar information is available through ClinicalTrials.gov under identifier NCT01072370.  This clinical trial investigation has a patient population consisting of children from ages of 2 to 12, “whose parents have saved their infant’s cord blood, who have non-progressive motor disability, and whose parents intend to have a cord blood infusion.”  Again – for full details regarding inclusion and exclusion criteria, see the full online posting.

For those parents who may be interested in determining if their child would qualify to participate, the study is still recruiting participants.  The contact information is also available at this link: Contact: James E Carroll, M.D.     706-721-3371     jcarroll@mcg.edu

Today’s report from Singularity Hub provides some encouraging – albeit anecdotal – news of potential progress.

The anecdotal evidence in support of treating cerebral palsy with cord blood stem cells is astounding. Much of it has actually been been performed at Duke University by one of the investigators in the pilot study: Joanne Kurtzberg. Among those that have been successfully treated at Duke include Ryan Schneider, Maia Friedlander, Chloe Levine, and Dallas Hextell. All had CP or CP-like symptoms and all made remarkable recoveries after cord blood stem cell treatments. Dallas Hextell, who showed improvements just 5 days after his therapy was featured on the Today show (the original report contains video compliments of MSNBC).

In addition to the early good news coming out of these projects, one other lesson is learned – for the time being, the storage of cord blood is an important component for those hoping to participate in such studies – particularly that being conducted at the Medical College of Georgia.  We have earlier reported on this topic as well.  You may want to refer to our early posting for some basic information if you are interested.

Obviously, the implications – if these projects prove to be successful – are far-reaching. The enthusiasm of the participants in these research projects is not limited to them alone. The words of the author, Aaron Saenz, from Singularity Hub somewhat tells it all:

So we have some exciting news for cerebral palsy, and some exciting news for those thinking about cord blood. What about the rest of us? Well the MCG and Duke work has some far reaching implications. Neurological damage, whether it’s caused by oxygen deprivation or some other injury, is one of the most difficult things to heal in the body. Work in animals (like that done by Carroll on rats) show that stem cells can not only help damaged brain cells recover, but they can also replace cells that have died. We may find that stem cells therapies have a wide range of applications for many different forms of brain damage. Kurtzberg is researching many different ways cord blood could be used (autologous or through donors) to treat a variety of conditions. In other words, today stem cells conquer cerebral palsy…tomorrow, the world.

Let’s all hope that Mr. Saenz is a prophet.

Have you ever wondered how people get in clinical trials? Well, you should check this out.

April 26, 2010

Are you aware of clinical trials that may be in your neighborhood? I just happened to come across this link to clinical trials.  Perhaps you are a lot more savvy than I (which would not surprise me one bit), but you can get ongoing information on these clinical trials by going to a website called Clinical Connection.

For example, there’s one in Baltimore for overweight folks being conducted at Harbor Hospital involving a new investigational medication.

In fact, if you go to this link, you will see that there are over 15 clinical trials for all types of conditions in the Baltimore area alone. If you are willing to travel 50 miles or less, there are even more in which you can enroll.

Do you have moderate or severe pain from osteoarthritis of the hip or knee?  Well Annapolis just might the place for you to visit and try out a new drug.  You have to be  over 18 years of age and according to the website, “study participants may be compensated for time and travel. All study-related care is provided at no cost and health insurance is not required to participate.”  I don’t know what “may be compensated” means – but if you are interested, check it out.

On the national level, the home page of Clinical Connection says there are 105,555 clinical trials underway – and there’s probably at least one in your neighborhood.

Do you suffer from chronic low back pain of greater than 3 months duration? That’s right – there’s a trial for you taking place at 7 locations, including California, Arizona, Florida, Washington and Nevada.

You name the condition – there just may be some free study out there waiting for you to volunteer.

These programs undoubtedly have very extensive packets of information about the study guidelines and the risks and benefits of the drug or therapy under study.  These trials are called clinical trials since the manufacturer has presumablyjumped over the hurdles of early non-clinical research in order to take the next step – how does our product work with real people?

Make sure you understand what you are signing up for before doing so.  Who knows, it may turn out that you get some real benefit from participating – hopefully you will not be a statistic in terms of adverse outcome. Just take time to understand what you are getting yourself into and what rights you are waiving.  If you’re good to go, we wish you well!

“Top doctors may not always be the best physicians” via @KevinMD – A Commentary and Some Tips

April 26, 2010

OK – so I’m a bit late with this one – since it was posted on April 21st – but sometimes even an ‘old’ post is worth a comment or two.

Dr. Charles writes in his post Top doctors may not always be the best physicians

Some of these doctors are excellent, but many are simply “notable.” They may be well-connected, in leadership positions, or presidents of this or that society. Many are excellent self-promoters, branding themselves through the name brand institutions they work for and the billboards that increasingly advertise their faces. Many are simply well-known or popular among their peers.

Well, he’s spot on with that one.  Of topical interest perhaps in the legal arena is that unless the opposing lawyer isasleep, objections in a courtroom to the question – “Doctor, have you ever been listed in (fill-in the name of the local magazine that rates physicians) as a ‘Top Doctor’?” are universally sustained by the judge.  Maybe judges understand better than the public that ‘Top Doctor’ status may not really be relevant to a physicians ‘expertise’ in a given subject area.

Before going any further, let it be said, however, that many times “Top Doctor(s)” are just that – they are some of the best  in their given specialty or subspecialty.  But how does the public know which ones are the entrepreneurial self-promoters and which ones are the real deal?  I might suggest that if you read Dr. Charles’ piece that you not stop until you read the ‘Comments.’  Here’s just a sample:

This from a gentleman named Kevin Falchuk, who provides the disclaimer – “I think you make excellent points, and this is coming from me, the President of a company called Best Doctors. We’re responsible for creating some of these lists.”

With that said, Mr. Falchuk notes:

[T]he issue in medical care isn’t your doctor’s reputation. Instead, it’s the extent to which he or she is able to spend time with you, think about your problems, and render good advice.

Let me add a few other suggestions:  While you are spending time with your doctor, if you are dealing with a life-threatening or potentially life-altering condition and not just the common cold, you may want to find out what his/her experience is in dealing with your condition.  In the right situation ask – is a referral to a specialist advisable? Perhaps a second opinion? If a course of treatment is recommended, are their alternatives?  What are the risks and benefits to each approach?  Does the recommended treatment have any known and likely side-effects?  Is there anything in your medical history that puts you at greater risk for known complications?

While it is never a good idea for a lay person to diagnose himself/herself, if you are recommended a course of treatment or a surgical procedure, perhaps you might consider educating yourself on what’s out there as far as information about the risks, benefits and alternatives of a procedure or treatment plan.  If you do and you have questions, contact your physician and ask about your concerns. However, sage advice on this approach might be – “If you trust Google more than your doctor then maybe it’s time to switch doctors.” Jadelr and Cristina CordovaChasing Windmills, 08-21-06

I suspect that somewhere during the course of the informed consent discussion with your physician, you or a family member will get a pretty good sense of whether the physician with whom you are speaking is the person for you and truly is one of the Best Doctors for your condition and treatment.

There’s a lot of talk about the medical profession learning how to improve on patient satisfaction. Why should you care if others think your doctor is tops or the best in some magazine?  While this may be a way to initially chose from the dozens of specialists in any given area, it should not be the end of the search.  Choice of physicians – as with any group – yes, even lawyers – is there for you.  Once you are in that physician’s office, only you can decide if he/she is the best doctor for you and you alone.  Also – keep in mind that not all the best doctors (or lawyers, or candlestick makers) are listed in such publications.  Whether your doctor is or is not is perhaps of no moment.  I have always believed in a system that is based on common sense – be an educated patient, ask questions, listen to the answers and follow your brain and your heart. While it does not guarantee a great outcome, you will have at least done what you can do to make sure that – your doctor is the best doctor for you!

Research – Stem Cells: Adult Stem Cells Producing As Much Excitement in Research Community as Embryonic Cells

April 25, 2010

We continue to report on stem cell research since it is clear that the joy and exuberance of researchers may one day (hopefully not too far away) translate into cure and joy for many afflicted with and suffering from  a variety of diseases.  While our earlier reports have somewhat centered on stem cell research in the field of cerebral palsy, rep0rts continue to surface as to a variety of other positive advances relating to adult disorders.  

As a side note – you may wonder why a law firm, whose task it is to represent those injured by the negligence of others, would have any interest in positive medical news.  The answer is quite simple – having had the privilege of representing injured clients and making their lives a bit better monetarily, lawyers are always limited in just how much they can do to improve the quality of life for their clients. It is the medical community that will ultimately make the difference in alleviating if not curing these life-altering disabilities.  Therefore, we at Nash & Associates have  decided that in our blog, we will not only report on strictly legal issues (verdicts, key appellate decisions, changes in the law, etc.), but also on key medical news  (the good, the bad and the ugly) including significant medical advances. Contrary to what many cynics say about the legal profession – it is not all about the money.

This point in history marks a period of approximately one year since President Obama removed limitations on research into embryonic stem cells.  While significant amounts of research money was to be devoted toward this research, the financial crisis has no doubt had an impact on freeing up this financial commitment.  What is of significance, however, is that the answers to many advances in treatment options using stem cells may lie in non-embryonic stem cells. A recent posting in Top News suggests that the excitement in the research community is in large part based on their recent discovery that adult stem cells taken from a patient’s bone marrow or belly fat may yield positive results equaling those of embryonic stem cells.

Dr. Joshua Hare, Director of the Interdisciplinary Stem Cell Institute at the University Of Miami Medical School stated that adult stem cells are more flexible than they had thought. The embryonic stem cell may not be the one that proves to be really successful in the actual therapy.

His institution has already been injecting the area around a patient’s heart so as to help heal the tissue injured in a heart attack.  It is also noteworthy that adult cells are also being used in research programs to bring about improvement in functioning of patients with  injured spinal cords.

For those of you interested in advances in stem cell research, there are many excellent blogs and reports appearing on almost a monthly, if not weekly basis. You may want to check out The Stem CellThe Stem Cell Blog and a new friend of ours on Twitter – cellresearch. There is also a very helpful and informative site created by the National Institute of Health, which provides a very good basic understanding for the public of what stem cells are, the government’s policy on stem cell research, current research projects and the like.

Guidant’s Guilty Plea for Failure to Notify FDA of Defective Defibrillators Takes New Twist – Will Plea Agreement be Accepted by the Court?

April 24, 2010

Just over two weeks ago, the newswires were advising the public that Guidant LLC, a unit of Boston Scientific Corp, had been implicated in short circuiting failures of three models of their implantable cardioverter defibrillators (ICD’s). At issue in the charges brought last November by the Department of Justice were 20,146 devices identified as the Ventak Prizm 2 and Contak Renewal 1 and 2 defibrillators. It was also reported that Guidant pleaded guilty to the criminal charges. Guidant’s defibrillators became available to the public in 2005.

Dr. Ananya Mandal, the author of one of the lead articles relating to the case at that time, provided the following information about the devices:

The implantable cardioverter defibrillator (ICD) is a life saving battery operated device much like a pacemaker that is placed near the heart in a minor surgical procedure. This device detects abnormal heart rates and rhythms in the patient and delivers an electric shock to make the heart beat normally again. These save millions of people in the US and all over the world from sudden death.

As a result of the proposed plea agreement, Guidant has agreed to pay a combined criminal penalty of more than $296 million, which, according to a report in Reuters, is “the largest criminal penalty against a medical device company.”  In essence, the charges stemmed from Guidant’s withholding information from the U.S. Food and Drug Administration regarding catastrophic failures in some of the devices. According to this same Reuters report, “Boston Scientific reached a settlement with defibrillator patients in 2007 covering the 2005 product issues and additional issues the following year. It agreed to pay up to $240 million to cover up to 8,550 claims, including ones collected in a multi-district litigation case.”

This plea agreement is currently being considered by U.S. District Court Judge Donovan Frank, who announced at a hearing on April 5, 2010, that he would make his decision as to whether or not to approve the plea agreement within three weeks of that last hearing.  If he stays within the self-imposed time limit, his decision should be announced this coming week.

Photo of Ventak Prizm 2 by mindfully.org

Last week, however, a new twist to the case was reported by several news sources, including one posted by Reuters this past Thursday, April 22, 2010 – “two cardiologists who cared for a 21-year-old college student who died when his implantable defibrillator made by Guidant failed to deliver a life-saving shock are urging a federal judge to reject a plea agreement with the company.” These physicians are identified as Dr. Robert Hauser and Dr. Barry Maron.

The doctors’ comments in a letter to Judge Frank bear quoting:

“We are extremely dismayed by the U.S. Attorney General’s decision to enter into a plea agreement with Guidant LLC, rather than prosecute the company and the individuals responsible for this egregious act.

“On behalf of the patients who died or suffered pain and mental anguish as the direct result of Guidant’s illegal and unethical behavior, we urge you not to accept the plea agreement.

“To allow a repeat offender, like Guidant, to escape with a fine (that is entirely borne by the shareholders of Boston Scientific) does not hold the guilty parties fully accountable and inevitably undermines patient safety.”

Whether the judge heeds the words of these physicians or not remains to be seen. What is absolutely laudatory is the fact that these physicians have expressed their outrage as to this manufacturer’s conduct.  Are they not correct – the money paid both through civil settlements and, if approved, by virtue of the criminal charges will be “entirely borne” by the company’s shareholders? Where is the personal accountability for this outrageous conduct?  Our system of justice is one not only of compensation to the victims of such heinous conduct but also should serve to deter other individuals from taking the same life-threatening conduct in the future.  There is nothing like a good long jail sentence for those involved in this horrible scheme to deter other corporate executives from going down the same path of profit at all costs – even to human life.

Dental Malpractice: Wisdom Teeth Removal Leads to Death and Verdict in Excess of $10million – NJ

April 24, 2010

Francis Keller, 21, presented to Dr. John S. Madras complaining of pain in his gums. Mr. Keller was told he needed a routine cleaning and that his wisdom teeth would need to be removed.

Mr. Keller returned a few days later for his cleaning, but, having informed Dr. Madras of his angioedema condition (a genetic immunity disorder with severe risk for swelling from incurring trauma to the hands or face), the cleaning was deferred. The dental hygienist contacted Dr. Richard Goldstein and was informed that Mr. Keller could not undergo any dental procedure until medically cleared.

Dr. Madras referred Mr. Keller to Dr. George Flugrad for wisdom teeth removal, and the procedure was performed on August 4, 2005. The following day, Mr. Keller awoke with difficulty breathing. Within the next fifteen minutes, his throat swelled causing suffocation.

Doctors Madras, Goldstein and Flugrad were all named as defendants in the case. During the trial, there was apparently great debate over whether Dr. Flugrad had been informed of Mr. Keller’s condition, and whether the patient had actually been cleared for surgery. The following is from the report of the case provided by Verdict Search.

Counsel for Flugrad and Madaras both argued that Keller was comparatively negligent, as he had been well advised of the risks of surgery. Counsel for Flugrad also contended that Keller claimed he had been cleared for surgery.

Counsel for Flugrad also claimed that Madaras telephoned him during the evening of Aug. 4 and they discussed Keller, but Madaras never mentioned that Keller’s physician had not given him medical clearance for dental surgery. Counsel also argued that Keller claimed he had been cleared for surgery.

Madaras admitted to speaking to Flugrad on the telephone on Aug. 4, but claimed there was no discussion about Keller, rather that the call was simply to wish Flugrad well on a two-week vacation he was commencing on Aug. 5.

The jury appears to have resolved the conflict in the patient’s favor – Dr. Goldstein settled with the family for a sum of $250,000; a New Jersey jury awarded Mr. Keller’s family a verdict of $10,200,00.00.