Personal Injury and Social Security Disability Blog

Matrixx Recalls Zicam Nasal Cold Products

The Associated Press is reporting that Matrixx Initiatives Inc. has started the recall of Zicam nasal cold remedies. Here are excerpts from the article:

Matrixx Initiatives Inc. said Wednesday it started a previously announced recall of Zicam nasal cold remedies following last week's Food and Drug Administration warning that the products were unsafe.

Meanwhile, the company is being investigated by the Securities and Exchange Commission over the FDA warning letter.

The Scottsdale, Ariz., company said the recall was voluntary. Still, it occurred as the FDA warned consumers to not use the nasal cold remedies due to hundreds of reports of patients losing their sense of smell. Matrixx said it disagrees with the FDA's safety warning, but "voluntarily" recalled the product to cooperate with the regulatory agency.

The FDA also alleges the products were unlawfully marketed. Matrixx also disagrees with that allegation.

Matrixx has settled hundreds of lawsuits connected with Zicam in recent years, though it maintains the nasal spray does not harm users' sense of smell.

Mothers Push for Singulair "Black Box" Warning

The Cleveland Plain Dealer reported that the FDA "recently told the makers of Singulair and three less widely used asthma drugs -- Accolate, Zyflo and Zyflo CR -- that the drugs' labels must list a dozen mood and behavior changes as possible side effects." The article focuses on a group of mothers who had pushed for the warning. "The group's goal now is to get a 'black box' warning for Singulair."

From the American Association for Justice news release.

GM Agrees to Take Responsibility for Future Liability Claims

The AP reported General Motors "has agreed to take on responsibility for future product liability claims, removing what could have been a sizable roadblock" on the company's way to a "quick sale of its assets" and emergence from bankruptcy. GM "wants to sell the bulk of its assets to a new company and leave behind unprofitable assets and other liabilities such as product-related lawsuits." But in a "concession to consumer groups and state officials who had threatened to block the sale because of product liability concerns, the new company will now assume responsibility for future claims involving vehicles made by the old company."

The Wall Street Journal reports that the agreement "represents a partial victory for more than a dozen state attorneys general and several consumer-advocacy groups."

The Washington Post reports, "Those with past claims would have to pursue the GM left behind in bankruptcy with nothing but unwanted assets, debts and other liabilities. That means these consumers are likely to recover little, if anything." On Friday "Rep. André Carson (D-Ind.) introduced legislation that would require automakers to purchase liability insurance if they are owned by the federal government or have federal loans. This insurance must protect against past and future claims, even after a bankruptcy filing.

From the American Association for Justice news release.

Friday Fun

OK, this site isn't really fun, but it could be helpful, and it does relate to fun things like vacations.

Onebag.com is "packed" full of tips for traveling light, or at least lighter. Speaking as the world's worst packer, I can tell you that this site will help you lighten your load on vacations or business trips. If you have trouble going on an overnight trip without taking four suitcases, check it out.

Schumer to Introduce Veterans' Malpractice Bill in Senate

New York state's Times Herald-Record reports, "Sen. Charles E. Schumer announced Wednesday he is introducing the Carmelo Rodriguez Military Medical Accountability Act, which will give military service members the right to pursue civil actions against the military for medical negligence experienced while receiving treatment for injuries unrelated to their service."

From the American Association for Justice news release.

Seventy Cookie Dough E. Coli Cases Reported in Thirty States

KWTX-TV Waco, TX reports, "Seventy people in 30 states have been infected with a strain of E. coli O157:H7 and 41 of those cases have been linked to an outbreak associated with eating raw prepackaged cookie dough, including three in Texas." According to the CDC, "most of the patients reported eating refrigerated prepackaged Nestle Toll House cookie dough products raw." So far, "the FDA has received no reports of deaths associated with the products."

The Dallas Morning News points out that "the FDA and CDC are warning people to not eat any varieties of prepackaged Nestlé Toll House refrigerated cookie dough because they may be linked to an outbreak of E. coli. Nestlé has voluntarily recalled all of these Nestlé Toll House refrigerated cookie dough products and advises that you should either throw them away or return them to your grocery store for a refund."

KGO-TV San Francisco reports, "San Carlos teenager filed a lawsuit against food-giant Nestle on Monday, saying she became horribly ill after eating raw cookie dough. The FDA is investigating whether the dough is contaminated with E. coli bacteria. Nestle has already issued a recall."

USA Today adds, "Theories on how E. coli got into the dough include cross-contamination or a sick worker," the FDA's Acheson says. But "for this particular bug, it doesn't take many (bacteria) to make you sick; 10 to 100 is enough."

From the American Association for Justice news release.

Some Physicians Fail To Inform Patients About Abnormal Test Results

The CBS Evening News (6/22, story 8, 2:00, Couric) reported that "no one wants to hear bad news from their doctor, but a" new "report...says keeping patients in the dark about abnormal test results is happening with much more frequency."

NBC Nightly News (6/22, story 4, 2:30, Williams) reported that the study suggests "that one out of every 14 times doctors fail to share abnormal test results with their patients."

The New York Times reports that investigators "reviewed the records of 5,434 patients at 19 independent primary care practices and four based in academic medical centers." The researchers "extracted records that contained abnormal results for blood tests or X-rays and other imaging studies, and then searched for documentation that the patient had been properly informed of the problem in a timely way." According to the Times, "after accounting for" several "ambiguous cases, the researchers found that of 1,889 abnormal results, there were 135 failures to inform."

The AP reported that the study, published in the Archives of Internal Medicine, found that "few medical practices had explicit methods for how to tell patients, leaving each doctor to come up with a system."

HealthDay reported that while "the study found no difference in failure rates between facilities that relied exclusively on paper records and those that used only electronic filings, medical practices that used a hybrid of paper and electronic record-keeping had the highest failure rates."

From the American Association for Justice news release.

Report: Counsel Without Malpractice Insurance Should Tell Clients

The Texas Lawyer reports that the Grievance Oversight Committee, which is appointed by the Texas Supreme Court, recently recommended that the court adopt a rule requiring lawyers who do not carry legal malpractice insurance to disclose their lack of coverage to clients.

This has been a controversial issue for several years in Texas. Personally, I've had malpractice insurance since I began practice, so a decision either way won't affect me. There are interesting arguments both for and against, and I'm sure there will be many voices heard in the next few weeks. Here is the beginning of the article:

In June 2008, the State Bar of Texas board of directors balked at taking a position on whether to require lawyers to disclose whether they have professional liability insurance coverage after a Bar task force that studied the issue voted 6-5 against recommending such a rule. The task force took that vote in May 2008.

But the State Bar may have to take another look at the issue. In its June 1 report to the Supreme Court, the oversight committee recommended that the high court direct the State Bar to implement a rule requiring a lawyer in private practice, when engaged by a client, to inform the client in writing if the lawyer does not have professional liability coverage with limits acceptable to the Bar — for instance, insurance in the amount of at least $100,000 per claim and $300,000 in the aggregate. The committee further recommended that, if an attorney's insurance lapses or is terminated during the representation, he or she notify the client of that fact.

USA Today: Lawyers and Doctors Must Compromise on Malpractice

USA Today says in an editorial that the "only thing" trial lawyers and doctors "have in common" on medical malpractice "is that they're both wrong. Doctors overestimate the degree to which lawsuits drive up medical costs (malpractice costs account for less than 2% of all health care spending, according to the Congressional Budget Office). Lawyers underestimate the degree to which even a few outsized verdicts spread fear and influence doctors' behavior." Unless "doctors and lawyers move from the extremes of the malpractice debate, the public will be denied what it wants most a reduction in the medical errors that occur all too often."

From the American Association for Justice news release.

State Farm's Rate Case Mocks Texas Insurance Regulation

No additional comment is necessary about this editorial from the Dallas Morning News today:

State Farm is masterful at working the legal system. For six years, it has danced in and out of court to thwart the Texas insurance department's order to refund millions to policyholders in alleged overcharges.

State Farm says it has done nothing wrong and owes nothing. However, the Office of Public Insurance Counsel, a state-funded advocate for consumers, pegs the refund at about $1 billion. The state insurance department's staff, whose commissioner, Mike Geeslin, eventually will decide who's right, puts the cost at $350 million.

Consumers are right to find this galling. State Farm collects premiums and conducts business as usual while policyholders continue to wait for expected refunds.

One wonders whether there is any real accountability for a big insurance company when its rates are called into question. Before insurance reform a few years ago, insurers complained of lengthy regulator reviews that prevented them from charging new rates in a timely fashion. So lawmakers loosened the reins and set up an appeals system that they thought insurers would accept in good faith. Instead, the result is marathon stonewalling.

State Farm's action is a blatant challenge to the state's authority to regulate rates. If the company prevails, no other major insurer whose rates are called into question will ever again settle outside a courtroom. For instance, Farmers Insurance recently filed for a rate hike. Anyone believe that if its rate request is rejected, Farmers will roll over quietly?

Gov. Rick Perry is expected to call lawmakers back into a special session to decide the future of the Texas Department of Insurance, which wasn't reauthorized during the just-completed regular session. In addition to that work, lawmakers should fix this unfair review process.

State Farm policyholders certainly are free to take their business elsewhere, which could do more to promote insurance competition than any measure regulators would demand. But shopping around now doesn't provide those policyholders with satisfaction or refunds.

This is a mockery, and it must end.