Home » 2009 » March

Monthly Archives: March 2009

Military can’t be sued for malpractice

This week the American Association of Justice (AAJ) is highlighting the story of Carmelo Rodriguez, a soldier stationed in Iraq, who died after military doctors, negligently, misdiagnosed skin cancer as a wart. However, because of a 1950’s Supreme Court ruling that states military personnel and their families are legally prohibited from suing the government for “non-combat” related injuries, Rodriguez’s family has no legal recourse for their loss.

After Marine Sgt. Carmelo Rodriguez served his country with honor for nearly a decade, including a tour of duty in Iraq, he lost his life not on the battlefield, but as a result of preventable medical negligence. While most Americans could pursue justice through our courts, service members like Rodriguez and his family do not have this same right. The Carmelo Rodriguez Military Medical Accountability Act (H.R. 1478), introduced by Rep. Maurice D. Hinchey (D-NY), would restore the protections of the civil justice system to the men and women of our armed forces.

“It is inexcusable that our service men and women, if injured by medical negligence, are denied the same protections that all other citizens enjoy,” said Linda Lipsen, Senior VP of Public Affairs at the American Association for Justice. “This important legislation would restore these rights to these brave heroes, who risk their lives every day in service of our country.”

Upon enlisting in the U.S. Marine Corps, Rodriguez received a routine medical exam. His doctors diagnosed a blotch on his buttock as melanoma but never told him, and the military never followed up. Over the next eight years, the melanoma continued to grow until, while serving in Iraq, Rodriguez had it examined again. This time, he was told that it was just a wart and that he should have it examined upon returning to the U.S. Tragically, by then, it was too late, and Rodriguez died 18 months later from skin cancer, holding the hand of his seven-year-old son.

For the complete story and video report from CBS News, click here.

Tricks of the trade: dealing with insurers

Too often, insurance companies refuse to pay fair and just claims to policyholders. Indeed, some companies have rewarded employees who successfully denied claims, replaced employees who would not, and when all else failed, engaged in outright fraud to avoid paying claims. When they do, the only way to hold them accountable is through the civil justice system.

Many insurance companies refuse to pay just claims, employ hardball tactics against policyholders, reward executives with extravagant salaries, and raise premiums while hoarding excessive profits. At the same time, the insurance industry has enjoyed its highest yearly profits ever, all at the expense of consumers.

The American Association of Justice (AAJ) has conducted extensive research to examine insurance company greed and how consumers can hold them accountable. AAJ has issued a report called “Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse.” It contains several tips for consumers to aid in handling claims. You can view the report by clicking here.

Lump sum settlement deal nixed by court

We have had many clients over the years who have rightly decided to accept their settlement proceeds in the form of structured settlements which offer them periodic payments (usually monthly) over the course of many years. These structured settlements offer stability and cash flow to clients who often have lost the ability to earn income and need a steady stream of money to help them through tough times. However, the recipients of these structured settlements are often preyed upon by financial companies who offered them a lump sum of cash in exchange for an assignment of the rights to collect the future payments.

Often times these deals are harmful to the clients, and undercut the financial benefits of a structured settlement. One court has struck back at these financial predators and nixed a deal that had not been approved by a state court and which was abusive to the injured plaintiff.

A Pennsylvania federal appeals court, ruling in a case linked to the 1985 MOVE bombing in Philadelphia, blasted a Texas company that offers lump-sum advances to plaintiffs who settle lawsuits. The agreement required the plaintiff to “sign over an estimated $334,000 of his future payments in exchange for about $32,000 upfront from a Houston company, Rapid Settlements. Judge Joseph Weis Jr. wrote that “because no state court had signed off on it, as required by law in at least 43 states, including Pennsylvania” there was no deal. He said, “The laws were designed to prevent abusive practices by such firms, which are known as ‘factoring’ companies.”

A full copy of the court’s opinion can be viewed by clicking here. You can read the AP story on the case by clicking here.

In the decision, the court noted that the receipt of a large sum of money is not always the blessing the recipient envisioned. Advice as to how to manage newfound wealth is freely given by well-meaning friends, as well as by others whose motives are purely self-serving. The court further noted the following:

Seizing what they perceive as a lucrative financial opportunity, a number of factoring companies offer a lump sum in exchange for the rights to some or all future periodic settlement payments. Because of abusive practices employed by some factoring companies, at least forty-three state legislatures have enacted statutes requiring court approval of a transfer of future structured settlement payments.

It is important for any recipient of periodic payments, but particularly those who are receiving proceeds from a personal injury settlement, to be on guard for these financial predators. Before making any deal, these clients would be well advised to consult with their attorneys before taking any action.

Soccer associations immune from suit over falling goal posts

The highest court in Massachusetts has ruled that a boy whose leg was broken when a goal post flipped over cannot sue nonprofit youth soccer associations for negligence. The decision in the case, known as Welch v. Sudbury Youth Soccer Association, can be viewed by clicking here.

Dustin Welch was hurt on April 10, 1998, when a goal post struck his right leg. At the time, the 12-year-old boy was not playing, but he was a participant in a soccer program run by the Sudbury Youth Soccer Association and the Massachusetts Youth Soccer Association. Welch sued the associations in 2006, claiming he was seriously injured because they failed to properly secure the goal posts. In his complaint, Welch stated that “[t]he reasonable and/or proper use of said goal posts and nets required that ground anchor pegs or other ground stakes be used to anchor or otherwise secure the goal’s metal posts to the ground.”

The associations argued they could not be held liable under a state law (G.L. c. 231, § 85V) that grants immunity to nonprofits conducting sports programs. G. L. c. 231, § 85V, provides, in relevant part: “[N]o nonprofit association conducting a sports or a sailing program … shall be liable to any person for any action in tort as a result of any acts or failures to act … in conducting such sports program.” As the court noted, by enacting G.L. c. 231, § 85V, the Legislature has determined that nonprofit associations conducting sports programs for youths are to be treated differently from ordinary landowners.

A trial court judge dismissed the case a green that the associations were entitled to the immunity under the statute. The Supreme Judicial Court agreed and upheld the lower court’s decision. The court reasoned that the harm alleged by Welch did not result from a deficiency in the care and maintenance of Haskell Field itself. Rather, Welch was injured by the alleged improper placement of sports equipment atop the real estate. When setting up the soccer goals, the associations were acting in furtherance of a sports program. Their alleged failure to securely anchor the goal posts would be considered a “failure[ ] to act … in conducting such sports program,” G.L. c. 231, § 85V, and such ordinary negligence falls squarely within the broad immunity conferred on a nonprofit association by § 85V.

Court upholds jury award and rejects preemption

In a striking victory for consumers, the Supreme Court upheld a $6.7 million jury award to a musician who lost her arm because of a botched injection of an anti-nausea medication. In a 6-3 decision, the court rejected Wyeth Pharmaceuticals’ claim that federal approval of its Phenergan anti-nausea drug should have shielded the company from lawsuits like the one filed by Diana Levine of Vermont.

We called this case to your attention several months ago as a case to watch, and you can read the original blog post by clicking here. In the case, Levine brought a state-law damages action, alleging, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. A Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label included an adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as a professional musician. The Court held that federal law does not preempt Levine’s claim that Phenergan’s label did not contain an adequate warning about the IV-push method of administration.

The decision reaffirms and strengthens state tort law and the role of juries in deciding whether a product is defective and unreasonably dangerous. While federal rules and regulations, such as those promulgated by the FDA, may be helpful, individual states retain the right to decide for themselves whether those rules and regulations go far enough in protecting its citizens. This decision upholds the rights of ordinary consumers and should be applauded.

You can read a full copy of the court’s decision by clicking here.  The case received extensive media coverage.  The New York Times (3/5, A1, Liptak) reports on its front page, “In a major setback for business groups that had hoped to build a barrier against injury lawsuits seeking billions of dollars, the Supreme Court on Wednesday said state juries may award damages for harm from unsafe drugs even though their manufacturers had satisfied federal regulators.” The decision “could have significant implications beyond drug manufacturing” and “many companies have sought tighter federal regulation in recent years in part to shield themselves from litigation.”

The Washington Post (3/5, A2, Barnes) reports, “The 6 to 3 vote in the court’s most anticipated business decision of the term was a rejection of Bush administration policy and a major setback to pharmaceutical companies, which face thousands of lawsuits in state courts from patients who allege that drugs have harmed them.”

The AP (3/5) reports, “The Supreme Court” upheld “a $6.7 million jury award to a musician who lost her arm to gangrene following an injection.” The plaintiff, “Diana Levine of Vermont once played the guitar and piano professionally” and “her right arm was amputated after she was injected with Phenergan, an anti-nausea medicine made by Wyeth Pharmaceuticals, using a method that brings rapid relief, but with grievous risks if improperly administered.” There were many other outlets that covered the Wyeth ruling, including: BusinessWeek (3/5, Johnson), CBS News (3/5, Cohen), the San Francisco Chronicle (3/5, Egelko), the Wall Street Journal (3/5, Bravin), the Legal Times (3/5, Mauro) reports, the AP (3/5, Curran), the Legal Intelligencer (3/4, Passarella), the Los Angeles Times (3/5, Savage), Dow Jones Newswires (3/5, Anderson), USA Today (3/5, Biskupic, Appleby), UPI (3/4) ABC World News (3/4, story 9, 0:30, Gibson), CBS Evening News (3/4, story 4, 2:00, Couric) and NBC Nightly News (3/4, story 5, 2:05, Williams).

When both government and law fail

I’ve been involved in government for over 10 years, and a lawyer for the last 23. I’ve seen a lot of stories of how the government and law can, and often do, help people. This is a story that shows how both the government and law can fail.

As Susette Kelo says, this is a case about a woman whose home was stolen by the government and the court. Indeed, no U.S. Supreme Court decision in the modern era has been so quickly and widely reviled as the infamous Kelo decision, in which the Court ruled that Susette Kelo’s little pink house in New London, Connecticut, and the homes of her neighbors could be taken by the government and given over to a private developer based on the mere prospect that the new use for her property could generate more taxes or jobs. Wikipedia gives a good outline of the case which you can view by clicking here.

The video below is a clip which shows the direct human impact. It’s only 5 minutes. You can get more perspective and a more in-depth view by watching the full panel discussion program (1:23:17) at the Cato Institute by clicking here. It’s a forum which discusses a new book on the case called Little Pink House: A True Story of Defiance and Courage.

This is some good snow day viewing/reading, but more importantly, it demonstrates why we need to be extremely vigilant in protecting our constitutional rights.