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Connecticut Jury Awards Smoker $8 Million Against Tobacco Co.

June 3, 2010

Despite the national headlines over the past decade or more regarding tobacco litigation, the state of Connecticut had never before seen a successful product liability action against a tobacco company. That is, until Barbara Izzarelli recently prevailed in her case against tobacco giant R.J. Reynolds. Law.com recently reported that a federal jury awarded Ms. Izzarelli $8 million as compensation for larynx cancer that she developed at age 36 and which she contended was caused by smoking R.J. Reynolds cigarettes for more than twenty years.

The case focused on R.J. Reynolds’ marketing strategy, primarily the company’s alleged efforts to specifically target the teen market back in the 1970’s when Ms. Izzarelli was a teenager and first began to smoke. Her attorneys, led by David Golub of the law firm of Silver, Golub & Teitell, alleged that R.J. Reynolds conducted marketing research on the smoking habits of youths as young as twelve and implemented various business practices directed at luring young people to cigarettes.

[Golub] contended that in the 1970s, after young smokers were attracted to flip-top boxes in which Philip Morris’ Marlboro cigarettes were sold, R.J. Reynolds developed new products to appeal to 14- to 20-year-olds. Golub further argued that those cigarettes were sold in popular teen hang-outs and at reduced prices.

While the jury found in Ms. Izzarelli’s favor, it did not absolve her completely of her own conduct in choosing to smoke for more than twenty years. The original verdict had been $13.6 million, but the jury found that Ms. Izzarelli was 42% at fault so the verdict was reduced to $8 million (Connecticut recognizes the doctrine of comparative negligence, meaning that a jury award can be reduced depending on whether, and to what extent, the plaintiff was negligent.). Still to be decided is the issue of whether R.J. Reynolds should be subjected to punitive damages, i.e., a monetary award intended to punish the company and deter others from engaging in similar conduct. Should punitive damages be assessed, the total award could potentially be as high as $24 million.

For Ms. Izzarelli, who will soon turn 50, this verdict was a long time coming. She was originally diagnosed with larynx cancer in 1996. She filed suit eleven years ago in 1999. According to her attorneys, she is currently “very disabled” and is unable to breathe through her nose or mouth. She instead uses a tube inserted in her throat. Because of her injuries, her diet is restricted to soft foods. Despite these limitations, Mr. Golub calls her “a remarkable woman to overcome these health problems and lead a normal life as much as she can.”

Despite the decade-long efforts to seek redress for her injuries, the verdict and the jury award are still not final. According to David Howard, a spokesperson for R.J. Reynolds, the company has promised to appeal the verdict.

“We’re disappointed in the decision in this matter,” said Howard. “We have several grounds for appeal and we are confident in our defenses going forward.”

Early comments by the defense indicate that R.J. Reynolds will challenge the trial court allegedly denying it the right to put on a ‘full medical defense’ in which Reynold intended to show that it was improbable that the plaintiff’s injuries were related to her smoking. The second issue mentioned post-verdict was the perceived error by the trial judge allowing “all youth marketing evidence despite the fact that, before trial, one of the plaintiff’s claims was dismissed because there was no evidence that the plaintiff was affected by any quote, unquote youth marketing.”

We will keep you posted on any developments in this case.

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A Social Networking Lesson for Parents: Think twice before you hit ‘send’!

June 2, 2010

It’s amazing how people continue to find new ways to get into trouble with social networking.

Photo by Davin Lesnick

Just a few years ago, a parent might get into trouble with his or her teenager by reading the teenager’s diary. Such domestic misdeeds seem almost quaint by comparison to what some parents are now doing on the Internet.

As reported by the ABA Journal and others, a mother in Arkansas has been convicted of harassing her own teenage son via the popular social networking site Facebook. While the mother and her teenage son had an admittedly difficult relationship before this (the teenager had lived with his grandmother for years), the teen never suspected that his mother would go to such lengths in her ongoing battle with him.

Denise New logged onto her son’s personal Facebook account after the teenager apparently left his account open on his computer. Perhaps many parents can appreciate the temptation of peering into their children’s online activities given such an opportunity. This mother, however, was not motivated by concern over her son’s well-being or even simple curiosity. Instead, Ms. New intended to post phony messages on his site purporting to come from him. For example, after the two got into a physical altercation and the police got involved, the mother posted a message on her son’s Facebook account (again pretending she was her son) essentially bragging that he had intentionally started the fight and called the police on his mother. Cell phone messages played in court corroborated that the mother was posting such phony messages. In other messages left on his site, the mother expressed regret at ever having a child and repeatedly used foul language. Putting all of this together, the court found that this conduct constituted harassment of the teenager. The mother was sentenced to 30 days in jail (suspended) along with probation and parenting classes.

As a reminder to all of us in this new world of social networking, the trial judge offered some sage advice:

“We live in a world now where what used to be said between two people or in a parking lot, now you hit a button and hundreds, maybe millions, of people can hear what you do,” he said. “It makes it maybe even more important for a person to think before they act because the amplification can be tremendous.” (Source: Arkansas Online)

Like it or not, we all now have the ability to broadcast information — even highly personal information — to the world.  Apparently, some of us are still struggling with deciding what information should be broadcast and what should be kept to ourselves.

Family Feud – Where’s Your Sense of Humor?

May 12, 2010

Everyone has, at one time or another, been offended by a relative’s hurtful comments. In the case of Sunda Croonquist’s family, however, the offended relatives were not content to let the offending comments pass without notice.  As reported by ABA Journal and other outlets, the family members actually sued her. Turns out that Ms. Croonquist is a comedienne, who takes advantage of her mixed ethnicity – she is half-black and half-Swedish and is married to a Jewish man – to poke fun at her family. Apparently, the family was not laughing, especially when Ms. Croonquist publicly joked that some of them were racist. Several of Ms. Croonquist’s in-laws, including her mother-in-law, filed suit in New Jersey alleging, among other counts, defamation and infliction of emotional distress.

Ms. Croonquist, however, got the last laugh. After Ms. Croonquist’s lawyers filed a motion to dismiss (to add to the familial complexity, Ms. Croonquist was represented by her husband’s law firm), the trial court ruled that Ms. Croonquist’s comments, while perhaps hurtful, were protected by the First Amendment because they were merely her personal opinions. In order to prove a case of defamation, one has to prove that the speaker made a false statement. An opinion, being a subjective belief of the speaker, cannot be considered true or false, so it cannot support a claim for defamation. So Ms. Croonquist is free to continue insulting her relatives, and comedians around the country can continue making mother-in-law jokes.

No word yet on when the next family reunion is going to be held.

Who’s Who: Lawyers spot Justin Bieber on Flight But Don’t Recognize Justice Stevens

May 12, 2010

No one goes into the law to get famous. Obviously!

As we hear today the announcement of President Obama’s pick of Elena Kagan to replace retiring Justice John Paul Stevens, here is a little story about the nature of fame.

The ABA Journal reports that a husband and wife boarded a flight recently out of Reagan National Airport in D.C. heading back home to Chicago. As the couple walked through the first-class cabin toward their seats, they were surprised to see sitting there a familiar face – teen pop sensation, Justin Bieber. In their excitement over seeing a real live pop star in their midst, the couple failed to notice an older gentleman, who was also sitting in first class, wearing a bow tie and quietly minding his own business. It was none other than Justice Stevens. When the identity of the prominent gentleman was made known to the couple, they were chagrined. Why? “We’re both attorneys,” the husband conceded.

Maybe it’s time we start putting cameras in the Supreme Court or teach the Justices about social media with a profile picture for all to see on a daily basis.

I’d follow and ‘like’ them.

Oh yeah, Mr. and Mrs. Lawyer, this is Justice Stevens.

Computer May Be Better Than Your Doctor in Providing Information for Obtaining Your Informed Consent

April 13, 2010

When most people think about medical malpractice, they think about a doctor making a mistake during surgery, or failing to order a necessary test, or making the wrong diagnosis. In other words, a mistake in the actual rendering of medical care. However, a doctor can also be negligent in his or her communications with a patient even before the doctor undertakes the treatment at issue.

Under the law, a doctor is required to explain to the patient the risks, benefits and alternatives of treatment so that the patient can make an informed decision about whether to proceed with treatment. This is called “informed consent” and is a critical step in the process of getting competent medical care.  

While some doctors and hospitals have generic consent forms that you sign before surgery, the actual informed consent process is typically handled by the doctor, usually in the doctor’s office. At this time, the doctor is required to explain the treatment, what it entails, the risks involved (i.e., death, infection, etc.), and whether there are any less  invasive alternatives or other available options for care. If the doctor fails to thoroughly explain these issues, then he or she can be held liable if the patient did not understand the full ramifications of the procedure and suffered injury as a result.

One of the difficulties of informed consent is that it is usually done verbally, and we all know the difficulty of trying to remember all the details when someone is explaining something to us, whether it’s directions to a local store, or how to program a new cell phone. It can be especially difficult in the context of a doctor’s office when the patient is already under stress and is being bombarded with complicated medical terminology. It is not surprising that many patients have little or no recall of the actual risks of treatment that doctors routinely say they explain to their patients.

One method that is currently being explored to improve this process is the use of computer programs to help educate patients. In a new study, researchers at the University of Melbourne and Austin Hospital in Australia tested a computer program in forty patients scheduled to undergo surgery to remove the prostate gland.

The computer program included slides with animations detailing the procedure, its potential complications and the post-surgery recovery. Each slide contained questions for the patient to answer, and he could move on to the next slide only after he gave the correct responses.

Patients were randomly assigned to one of two groups. One group received standard informed consent verbally from their doctor. The second group got to use the computer. The study found that the patients in the computer group scored much higher on test questions about the procedure – 78% correct answers versus 57% in the standard group. Why the difference?

Having patients answer questions helps turn the process into an “education and knowledge tool,” according to Dr. Nathan Lawrentschuk, one of the researchers on the study, which appears in the urology journal BJU International.  It may also allow doctors and nurses to “hone in on areas not understood, rather than assuming our patients understand what we say,” Lawrentschuk told Reuters Health in an email.

We look forward to further advances in this technology so that patients can make informed decisions about their medical treatment. Let us know if you have ever given ‘informed consent’ after being advised of the risks and alternatives by a computer.  We would appreciate you sharing with us how, if at all, that process improved your understanding of the surgery you were about to undergo.

MRI Beats X-Ray for Spotting Fractures in ER

March 30, 2010

A recent article in Medline Plus reports that the National Institute of Health (NIH) announced recently the results of a new study, which called into question the accuracy of x-rays in detecting hip and pelvic fractures.  In the study, researchers at the Duke University Medical Center analyzyed data on 92 patients who received both an x-ray and an MRI (magnetic resonance imaging) to evaluate hip and pelvic pain.  The results:

“Thirteen patients with normal X-ray findings were found to collectively have 23 fractures at MRI,” the study’s lead author, Dr. Charles Spritzer, said in a news release from the American College of Radiology/American Roentgen Ray Society.  In addition, the study found that, “in 11 patients, MRI showed no fracture after X-rays had suggested the presence of a fracture,” Spritzer said. “In another 15 patients who had abnormal X-ray findings, MRI depicted 12 additional pelvic fractures not identified on X-rays.”

While x-rays tend to be the front-line study in the emergency room setting (primarily because of cost), this new study suggests that MRI may be a better approach for suspected fractures, which will hopefully lead to more patients getting an accurate diagnosis and proper treatment.

CDC Features – Data Show 1 in 303 Children Have Cerebral Palsy

March 22, 2010

Cerebral palsy – how common is it? A recent “Features” posting by the CDC (Centers for Disease Control and Prevention) provides some answers and gives parents some ‘early signs’ of which to be aware.

While everyone knows that cerebral palsy (CP) can be a devastating condition, it is less well-known how common CP actually is. The Center for Disease Control recently released new data on the frequency of CP. In its study, it found that CP affects 3.3 per 1,000 eight-year-old children, or 1 in 303 children. This data was collected from select communities in Georgia, Alabama and Wisconsin, not the nation overall. Rates may differ slightly in other localities. However, the CDC pointed out that its most current findings on CP frequency were similar to previous studies which showed that CP affected 3.6 per 1,000, or 1 in 278 children.  

In reporting the data, the CDC also advised parents what to look out for in terms of signs of CP, based on the age of the child. Parents should consult a physician if they notice any of the following signs:

A child over 2 months with cerebral palsy might have difficulty controlling head when picked up, or have stiff legs that cross or “scissor” when picked up;

A child over 6 months with cerebral palsy might continue to have a hard time controlling head when picked up, or reach with only one hand while keeping the other in a fist;

A child over 10 months with cerebral palsy might crawl by pushing off with one hand and leg while dragging the opposite hand and leg, or not sit by himself or herself;

A child over 12 months with cerebral palsy might not crawl, or not be able to stand with support;

A child over 24 months with cerebral palsy might not be able to walk, or not be able to push a toy with wheels.`

Parents, be aware of these early signs!  If you are not sure what to do or to whom you can turn, the CDC offers the following information:

To find out who to speak to in your area, contact the National Dissemination Center for Children with Disabilities by calling 1-800-695-0285 or visiting the Center’s Web site

Of course, you always have your child’s pediatrician as a starting point.

Ga. Supreme Court Upholds Key Medical Malpractice Law Requiring Proof of Gross Negligence for Emergency Room Physicians

March 17, 2010

Another legal ruling in the ongoing debate over tort reform – this one from the State of Georgia. MSNBC is reporting (citing Associated Press) that the Georgia Supreme Court, in a divided 4-3 opinion, has upheld a 2005 state law that requires patients to prove “gross negligence,” rather than ordinary negligence, in order to prevail in a medical malpractice case against emergency room physicians.

A Georgia woman, who suffered a stroke after receiving allegedly negligent treatment at an emergency room, challenged the constitutionality of the 2005 law, claiming that it created an insurmountable hurdle at trial.  The Georgia Supreme Court disagreed.

The court’s majority opinion, penned by Justice George Carley, found that it was “entirely logical” for lawmakers to approve the legislation in hopes of stemming the rising cost of medical malpractice insurance.

Usually, the focus of tort reform legislation has been in either instituting a cap on damages, or restricting attorneys’ fees, or both. In 2005, however, the Georgia legislature implemented an additional mechanism that was designed not to limit the amount of recovery in successful lawsuits but was instead specifically designed to make it more difficult for injured patients to prove their case at trial.

Prior to the law enacted in 2005, in order for a patient to prevail in a medical malpractice action, the patient had to be able to prove that the defendant doctor was negligent – i.e. violated the standard of care, which has usually been held to mean that the doctor failed to do what a reasonably competent doctor would have done in the same or similar circumstances. Under the new law in 2005, however, patients were required to prove that the defendant doctor (at least in the emergency room setting) committed “gross negligence,” which is a much higher level of negligence, generally defined as near-total disregard for the rights of others, reckless disregard, or willful or wanton indifference to the consequences of one’s actions.

Clearly, forcing patients to meet this higher burden will make it more difficult for injured patients to sue emergency room physicians, which was the very intent of the Georgia legislature. The ruling also means that negligent doctors who would have been found liable under traditional law will now get off scot-free, leaving injured patients with no recovery.

The same court is expected to rule later this month on the constitutionality of Georgia’s cap of $350,000 on damages for pain and suffering.

D.C. EMS Faces Review in Tragic Death of 2 Year Old Girl

March 4, 2010

From a report in today’s Washington Post, we learn that in the District of Columbia last month, a two-year-old girl died after suffering from apparent breathing problems. While the unfortunate death of a toddler is tragic enough as it is, it turns out that the death may have been preventable. The family of the little girl called paramedics, who promptly came to the house to evaluate the girl. Unfortunately, the paramedics made the decision not to take the girl to a hospital:

Emergency responders went to the 800 block of Southern Avenue SE shortly before 5 a.m. on Feb. 10, department spokesman Pete Piringer said. Paramedics arrived minutes later, and the toddler was evaluated but not taken to a hospital, Piringer said.

About nine hours later, the family called the paramedics again because of the little girl’s ongoing breathing problems. Unfortunately, it was too late. Although the paramedics came out and took the child to Children’s National Medical Center, she tragically died the next day.

As a result of this incident, several emergency workers who initially responded to the family’s call for help have been placed on administrative leave while the D.C Fire and Emergency Medical Services conducts a review of the incident.

This is not the first time the department has faced criticism for such conduct. In December 2008, paramedics responded to the home of a man complaining of chest pains and decided not to take him to a hospital. The man died of a heart attack several hours later. In 2006, a New York Times reporter was mugged and beaten. Assuming that he was drunk, paramedics did not take him to a hospital; the man later died.

We look forward to learning the results of the EMS investigation and trust that if any deficiencies are found, the EMS will make the necessary changes in training and/or personnel so that such unfortunate events do not take place again.

Landmark NIH Clinical Trial Comparing Two Stroke Prevention Procedures Shows Surgery and Stenting Equally Safe and Effective

March 2, 2010

The National Institutes of Health issued a news release regarding a landmark clinical trial relating to stroke.

A stroke can be one of the most devastating medical conditions that a person can suffer. Not only can it cause immediate death (stroke is the third leading cause of death in the United States), but it can also cause severe neurologic deficits that can leave a once-healthy person with severe mental and physical limitations. Therefore, researchers are always looking at new ways to try to prevent stroke.

The National Institute of Health (NIH) recently published the results of a major nine-year clinical trial that evaluated two methods of preventing future stroke: carotid endarectomy, or CEA, which is a surgical procedure to clear blocked blood flow, and carotid artery stenting, which is a newer and less invasive procedure that implants a small, expandable device in the artery to widen the blocked area. The good news for patients is that both methods proved to be safe and effective in both men and women.

“The CREST trial results show that we now have two safe and effective methods to treat carotid artery   disease directly, the tried and true CEA, and the new kid on the block, CAS,” said Thomas G. Brott, M.D., professor of neurology and director for research at Mayo Clinic in Jacksonville, and the study’s national principal investigator. “

The study found that the two methods were not perfectly equal, however. In patients over 70 years old, for example, the surgical procedure (CEA) results were slightly superior to stenting. Also, the study noted a difference in heart attacks and strokes:

The investigators found that there were more heart attacks in the surgical group, 2.3 percent compared to 1.1 percent in the stenting group; and more strokes in the stenting group, 4.1 percent versus 2.3 percent for the surgical group in the weeks following the procedure.

What this study means to patients is that doctors now have two safe and effective means of trying to prevent future stroke, and can choose the procedure that best fits that patient.

“The CREST trial provides doctors and patients with much needed risk/benefit information to help choose the best carotid procedure based on an individual’s health history. This personalized decision making should translate into improved patient outcomes,” said Walter J. Koroshetz, M.D., deputy director of NINDS.

Added Dr. Brott, “People have some very good options for stroke prevention that we hope will not only extend the length but also the quality of their lives.”

Contributing Author: Michael Sanders