Articles Posted in General Legal

A new device that tracks and locates retained objects (surgical items left inside a patient after an operation) is getting attention. The RF Surgical Detection System uses a wand to scan the surgical area to find any tagged items that might have been left inside the patient. Tags are small seed-like items that are embedded in gauze and surgical sponges.

According to the New England Journal of Medicine a major hospital can expect to have one or more cases of retained objects per year. Those figures however, were based on actual medical malpractice claims, so the real number is probably higher. It is generally believed that an object is left in the body in 1 of every 8,000 surgeries, the most common item being the surgical sponge.

Most hospitals rely on a counting system. Nurses count the number of sponges that are being used in a procedure, and then make sure they have the same number of used sponges in sight before closing the patient. If the count doesn’t match, then the patient cannot be closed. Sometimes, however, nurses count incorrectly (or forget).

The New York Times has obtained a government report that concludes that the drug Avandia [aka Rosiglitazone], prescribed for diabetes, causes heart attacks and heart failure and should be removed from the market. According to the report, if every diabetic currently on Avandia were instead given Actos, an alternative drug, about 500 heart attacks and 300 cases of heart failure would be avoided every month.

Because of a multimillion dollar advertising blitz, Avandia was, at one time, one of the biggest selling drugs in the world. In 2006, sales of the drug totaled over $3 billion dollars. In 2007, however, a study by a Cleveland Clinic cardiologist suggested that the drug actually damaged the heart, and after a warning from the FDA, sales of the drug dropped dramatically. Despite the findings of heart damage, the drug stayed on the market when “an F.D.A. oversight board voted 8-7” too keep it on the market. (It would be interesting to know the politics at work behind that decision.)

“Rosiglitazone should be removed from the market,” concluded Dr. David Graham and Dr. Kate Gelperin of the FDA in the report obtained by the Times. GlaxoSmithKline, the drug’s manufacturer, disagrees (of course). It has stated that Avandia has been thoroughly tested and that “scientific evidence simply does not establish that Avandia increases” the risk of heart attacks.

Looking for a personal injury lawyer? Don’t grab the phone book (who uses phone books anymore?), grab the laptop and hit Google. Avvo.com is national lawyer directory founded by Mark Britton, an attorney for 16 years and formerly the top lawyer at Expedia.com, and Sendi Widjaja, a veteran of Microsoft. Together they launched Avvo.com as a way for people to navigate “the complex and confusing” legal industry, and to help people choose the right lawyer for the situation.

We use it here at Walton Law Firm. Randy Walton is rated as “Superb” by the Avvo ratings system, and there you can find a lot of information about his background, sample cases, and read testimonials from a few of his former clients.

At its website, Avvo states that it is guided by two basic principles: Focus on the needs of regular people, and the provide information and guidance. Whether a person is looking for a car accident lawyer, an elder abuse lawyer, or a lawyer to prepare an estate plan, Avvo can give you the low down on all of them.

Frank Rogozienski felt that something wasn’t right. The judge in his divorce case kept ruling against him, including voiding a prenuptial agreement that cost Mr. Rogozienski $20 million in stock. Making matters worse, the presiding judge on the case refused to disclose any conflicts of interest he might have.

Mr. Rogozienski decided to conduct his own investigation into any conflicts of interest, and discovered that the judge, James Allen, had received a timeshare condominum during the pendency of the Rogozienski divorce case. A little more digging revealed that the friend that gave Allen the time share, received it from a San Diego lawyer named S. Michael Love. You know what’s coming next. Attorney Love was the lawyer for Mr. Rogozienski’s wife Shirley in the divorce proceedings.

After the divorce, Mr. Rogozienski sued Love and Allen for professional negligence. Allen, a lawyer who was sitting as a private judge, was held to have judicial immunity and protected from liability. Love on the other hand, was determined to be negligent by a San Diego jury and awarded Mr. Rogozienski $800,000 in attorney’s fees. From news accounts, it doesn’t sound like the jury was all that fond of Mr. Rogozieski. For his emotional distress damages he was awarded 1 dollar.

For many years now, the issue of medical insurance payments to health care providers who care for personal injury victims has been a source of confusion and frustration among personal injury lawyers. When an injured person incurs medical bills as a result of an accident, and then recovers money from the person/entity that caused the injury, should the injured person be allowed to recover the full amount of the medical charges billed by the health care provider (doctors, hospitals, etc.), or simply be allowed to recover the amount paid by the health insurance carrier?

The answer to that was cleared up a bit yesterday when the Fourth District Court of Appeals (Div. One) issued its opinion in Howell v. Hamilton Meats & Provisions.

Rebecca Howell suffered very serious injuries when the car she was driving was struck by a truck being driven by one of Hamilton Meats’ employees, who made an illegal U-turn. Ms. Howell suffered a major spinal injury that required two surgeries and substantial post-surgical care. She sued Hamilton Meats, who admitted fault, and a trial was held on the amount of her damages.

As was expected, the family of a Huntington Beach junior lifeguard who was accidentally killed during camp when she was run over by a lifeguard boat has filed a claim against the City of Huntington Beach. The claim alleges that Huntington Beach lifeguard Greg Crow, the boat operator, was negligent, and that his negligence caused Alyssa Squirrell’s death. As was blogged about here, Alyssa died during a training drill where the junior lifeguards would jump off the back of the rescue boat near the surfline.

The filing of a claim is not a lawsuit, but a precursor to a lawsuit. Under California law, anytime a person wants to file a law against any governmental entity, whether a city, county, or any other public agency, it must first file a claim against the public entity, and the claim must be denied. In addition, the claim must be filed within 6 months of the incident. If the claim is not filed within six months, the person is usually barred from filing a lawsuit.

This requirement, which places an unfair burden on claimants, is often confusing for claimants. For example, if Alyssa Squirrell was killed by a private boater, not a city employee, her family would have up to two years to file a wrongful death case against the boater. Since the prospective defendant is the City of Huntington Beach, they must first file the claim referenced above, then will be permitted to file a lawsuit once the claim is denied (which is what Huntington Beach will do). After the claim is denied, the family will have six months. So while California has a two-year statute of limitations in most personal injury claims, it is usually one year in cases involving public entities.

The California Citizens against Lawsuit Abuse (CALA), an insurance industry-backed organization whose goal is to limit access to justice, is out with a study that finds that eight of California’s largest cities and nine of the largest counties spent $504.1 million in 2007 and 2008 to defend lawsuits, and to pay settlement and judgments.

While those numbers may be accurate (it’s hard to tell), the so-called study provides no real context for the number. For example, what percentage of the overall budgets of the cities and counties does $504.1 million represent for a two-year period? How many lawsuits are we talking about here, and what percentage were meritorious, and what percentage were defeated? We’ll probably never know, which is the problem with the “lawsuit abuse” organizations.

For example, a few years ago a San Francisco jury awarded $27 million to the family of a 4-year-old girl who was fatally struck by a City of San Francisco truck driver who ran a red light, jumped a curb, and crushed the little girl and her mother, who was severely injured. Is that a legitimate lawsuit and verdict against the City? Or the more recent Metrolink crashes in Los Angeles that killed 18 people after the engineer, it was learned, was texting moments before the accident. If those injured or killed bring cases against entities responsible for the crash, is that considered “lawsuit abuse”?

The baby stroller maker Maclaren USA Inc. is recalling 1 million umbrella baby strollers after received reports of 12 children who have had fingertips amputated by side hinges. The Connecticut-based manufacturer has apparently been working with the Consumer Product Safety Commission on what is being called a “voluntary recall.” (Click here for the CPSC notice.)

According to reports, the Maclaren USA has received reports of 15 injuries to children placing their fingers in the hinges on the side of the stroller. Those injuries have increased in the last two years.

The recalled strollers include all “Volo” and “Techno XT” models sold in the last 10 years. The company is asking that owners immediately stop using the strollers until protective covers are placed on the hinges. Maclaren will provide free hinge covers to all owners who request them. (Click here for more info.)

Most people would be surprised to learn the lawyers do not have to carry malpractice insurance (neither to doctors, by the way). And most clients don’t ask whether their lawyer carries malpractice insurance. That’s about to change.

Beginning January 1, 2010, lawyers who do not carry malpractice insurance must disclose that fact to their clients, in writing, at the time the attorney-client relationship is being formed, but only if the representation is expected to exceed four hours.

This new Rule of Professional Conduct (Rule 3-410) was approved by the Supreme Court in August, but not all attorneys are happy about it. Opponents of the new rule, mostly from solo practitioners and small firms, argued they would be unfairly affected, which would impose undue expenses and unfairly stigmatize those without it. It is estimated that approximately 20% of all lawyers in California do not carry legal malpractice insurance.

In 2005, several people were injured and killed when a documented gang member stole a tow truck from a commercial vehicle repair shop in Los Angeles County, and, while driving it away, lost control and drove up onto a sidewalk. The injured parties brought a lawsuit against the repair shop alleging that it was negligent for leaving the keys in the tow truck ignition, in an area known for high gang and vehicle theft activity. Apparently the thief simply had to start the vehicle and drive out an open gate.

The defendant repair shop brought a motion for summary judgment, to dismiss the case in its entirety, arguing that it owed no duty to the injured people, and that if it did, any negligence committed was not the cause of the injuries: a criminal intervener was. The court agreed and dismissed the case.

On appeal, the Second District noted that absent special circumstances, California courts have consistently have refused to impose a duty on owners or bailees of automobiles or ordinary pickup trucks who leave the key in the ignition of an unattended vehicle to prevent harm to third parties caused by a thief. The court went on to note several cases where “special circumstances” were found, highlighting cases were heavy equipment machinery was stolen and caused injury.

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