Personal Injury and Social Security Disability Blog

New Hampshire Woman’s Pharmaceutical Liability Lawsuit May Reach Supreme Court

In 2004, Karen Bartlett, of Plaistow, New Hampshire, begin taking the generic medication sulindac, an anti-inflammatory medication. Unfortunately, Bartlett soon began to suffer from one of the drug’s side effects, a condition known as toxic epidermal necrolysis, which left her with burns on 65% of her body and rendered her almost totally blind.

Bartlett sued the manufacturers of the medication, Mutual Pharmaceutical Company, and was awarded $21 million in damages. Mutual Pharmaceutical quickly appealed, claiming that it was an excessive award of damages, but the U.S. Court of Appeals for the First Circuit upheld the ruling.

Now, it appears likely that the case will be appealed to the U.S. Supreme Court for a final judgment. At issue is the degree of responsibility the manufacturers of generic drugs owe to their clients. Because Mutual Pharmaceutical Company had not originally created sulindac, they were legally prohibited from altering its chemical composition or changing its warning labeling. Therefore, Mutual Pharmaceutical argued that it should not be liable for Bartlett’s injuries. However, Mrs. Bartlett and her attorneys argue that the drug should not be on the market in the first place, as its risks outweigh its potential benefits.

This case represents an important new development in pharmaceutical liability law in the U.S., and could have a significant impact on how the manufacturers of generic drugs choose to make and market their products. For more information on this case, please visit this page.

 

Featured Link — MedTerms Medical Dictionary

There are now many medical dictionaries online, but one of the best is MedTerms, at MedicineNet.com. Here is a description from the site:

MedTerms medical dictionary is the medical reference for MedicineNet.com. Our doctors define difficult medical language in easy-to-understand explanations of over 16,000 medical terms.

MedTerms online medical dictionary provides quick access to hard-to-spell and often misspelled medical definitions through an extensive alphabetical listing.

Dallas County Cracks Down On Jury Duty No-Shows

I've been practicing law in Dallas for more than 40 years now. And for every bit of that time Dallas County has had a problem with people who are called for jury duty not showing up to serve. One reason it's been a problem for so long is that there has essentially been no enforcement of the law requiring service. If you ignore the jury summons, nothing happens to you. Until now, perhaps.

As reported by the Dallas Morning News, Dallas County has begun a pilot program to enforce this civic responsibility. It's not yet a really serious attempt at enforcement, but at least it's a start. Here are excerpts from the newspaper article:

A pilot program that began this year requires no-show jurors to appear before a judge where they are publicly chastised. They are then offered a chance to reschedule their jury duty, and if they don’t show up again, they can be fined $1,000 or arrested.

Only 1 in 5 Dallas County residents summoned for jury duty shows up, said state District Judge Martin Lowy, a civil courts jurist who is the administrative judge for the county. No-show jurors cause an endless cycle of frustration for some courts. Showing up for jury duty is not voluntary: It’s a civil duty, and it’s the law.

Arrest is unlikely. Jurors who don’t show for duty can be jailed for contempt of court, but the county jail is already stuffed with people who have committed far more serious crimes. The county also has more than 190,000 unserved warrants for people who are wanted, and limited resources for finding and jailing them.

The county summons hundreds of thousands of jurors each year. Most no-shows will never be called before a judge.

“I don’t think we would ever have the resources to reach out and touch everybody who doesn’t appear,” Lowy said. “But we want people to know it’s a possibility.”

Under the pilot program, 60 to 80 no-show jurors are summoned two afternoons a week before an associate judge to reschedule their service.

There have not yet been any arrests or fines under the pilot program. Lowy says that hasn’t happened because the program is in its infancy.

If arrest warrants are eventually issued for those who fail to appear for jury duty or for the hearing before an associate judge, the warrants most likely would be added to the pile of others waiting to be served, Lowy said.

Memorial Day

As you go to your picnics and family gatherings today please remember the reason for this holiday — to pay our respects to those who have sacrificed to preserve our freedom.

 PBS has a wonderful Memorial Day site where you can post and read comments about service members from any of our nation's wars. Take a look, and leave a note if you can.

Friday Fun

Did you know that we yawn, not because we're sleepy or bored or need more oxygen, but in order to be cool? More precisely, in order to cool our brains. This video is really interesting, but I yawned all the way through it.

The U.S. Chamber of Commerce Falls Short in a Response to Hot Coffee — The Movie

I've written before about the excellent documentary Hot Coffee — The Movie. The subject of course is the infamous McDonald's hot coffee case that has been so distorted by the proponents of tort reform. That case, or actually the false or misleading propaganda about that case, has done more to harm the civil justice rights of Americans than any other single incident or statement.

Now, almost a full year after the movie was shown on HBO, and after many accolades not only from consumer advocates but also from the film industry, the U.S. Chamber of Commerce has decided this is a good time to mount a counter-attack. They have started by buying advertising on Web sites such as Google, in hope of leading people to watch their own film, which supposedly presents the other side of the story.

The problem for the Chamber is that their counter-arguments are filled with more misstatements. This fact was pointed out satirically and bitingly by the great blog ThePopTort. I urge you to read the article there to learn more about both sides of this issue. Then either buy, rent, or stream the movie. You will enjoy it, and you will discover that almost everything you thought you knew about this case is absolutely false.

Here is a description of the film from the official Web site:

The civil justice system has been under heavy attack for over 25 years.

Despite the fact that federal legislation has never been successful, big business interests have won in the hearts and minds of average people. They launched a public relations campaign starting in the mid-80’s and continuing over the last two decades to convince the public that we have out of control juries, too many frivolous lawsuits and a civil justice system that needs reforming.  They have used anecdotes, half-truths and sometimes out and out lies in their efforts, for one purpose – to put limits on people’s access to the court system, the one and only place where an average citizen can go toe to toe with those with money and power and still have a shot at justice.

Because of the success of the public relations campaigns, paid for by tobacco, pharmaceutical and insurance companies, to name a few, our civil justice system is not impartial. Jurors have been led to believe that a large verdict will affect their pocketbooks. Voters believe that we have a court system out of control that needs reforming.  Although there are consumer advocacy groups who have attempted to set the story straight, there has yet to be enough money to launch the kind of public relations campaign for consumers that can even begin to combat and challenge the public relations campaigns of pro-business and tort reform groups. Over the last few years, however, documentary films and independent film festivals have become a vehicle for alternative ideas to get a public forum.

Because almost everyone has heard about the McDonald’s coffee case, and most people believe they know what it’s about, this project has a fascination for people. Of course, we go much further into the debate than just the McDonald’s coffee case, but the case is a vehicle for people to think about their long held beliefs and whether they are valid.  We think this movie has the potential, with the right funding and effort, to really change the way people think about our civil justice system and access to the courts.

Social Security Disability Trust Fund May Be Depleted In Four Years

This guest post is courtesy of Mr. Jim Loxley of My Compensation.

It was recently reported that the Social Security and Medicare programs will run out of funds at an earlier date than previously predicted. An annual report written by trustees of the two funds stated that the shorter timelines point towards the urgency of reforms being required to maintain the solvency of the programs. The Social Security trust fund for disability benefits was expected to last up until 2018. However, it is now projected that funds will run out two years sooner in 2016. Furthermore, the portion of the Social Security funding designated to retirees will be exhausted in 2033, which is three years sooner than the previously projected 2036. The dates predicted for the bankruptcy of Medicare is still predicted at 2024, the same as the previous year's report. The report has stated that there are four primary factors which are driving the insolvencies of the programs.

The first, and perhaps the most obvious, is the economic downturn resulting in a loss of revenue for the country and less taxes being generated through the payroll. So called ‘baby boomer’ retirements are on the increase, meaning that there are more individuals receiving benefits from the two programs. Thirdly, as health and medical care improves, people are living longer, resulting in them receiving benefits for a longer period of time. And finally, with regards to Medicare specifically, the costs for the healthcare industry in general are rising faster than the rate of inflation.

The trustees are appointed by the President and are both from political parties. The report urgently encouraged Congress to instigate changes to the programs, stating that delays in doing so will damage those that rely on them the most. The report went on to say that the people making the laws should not delay the addressing of long-term financial challenges which face Social Security and Medicare. Taking early action will maximum the number of options available to the programs in the future, whilst allowing sufficient time for changes to be phased in and for the public to prepare for those changes. In addition, quick action will help minimise adverse effects impacting vulnerable populations such as lower income workers already benefiting from the programs.

A separate report written by Medicare's chief actuary, Rick Foster, was quick to defend the program stating that the report written by the trustees was based on a set of assumptions which he described as “unrealistic”. Under the Affordable Care Act (2010), which is being called “Obamacare” by some, there are cuts in payments to doctors which are set to go into effect soon. Foster believes that Congress will be forced to rescind the cuts. He stated that the Affordable Care Act does make important changes to Medicare, substantially improving its financial outlook, but there's a strong likelihood that certain changes will not be viable over the long term. Further concerns over the Affordable Care Act were voiced by Charles Blahous who is one of the Republicans trustees. He warned that the act was intended to reduce the cost of healthcare and ensure lower deficits, but instead a further $342-$530 billion will be added to the national debt over the next decade.

With these opinions and reports coming to light, the reform of Medicare and Medicaid has been centralised as an issue in the 2012 election. It should come as no surprise that the Democrats are accusing the Republicans of attempting to end the programs, while the Republicans are accusing the Democrats of not taking enough action to save them. The Concord Coalition is a think tank tasked with scrutinising such matters and executive director Robert Bixby has also stated concerns surrounding fiscal stability in the federal budgets. He stated that mutual sacrifice would need to be made if we are to see the desperately needed reforms. He stated that in an ideal world, responsible changes in the entitlement programs should be implemented as a part of a comprehensive program of fiscal reform, seeing cuts in other domestic programs, reductions in the defence budget and also sweeping changes in the tax system. As Bixby said, using a more philosophical angle in a recent press release, "everyone may think that their cow is sacred but, in fact, there can be no sacred cows in the search for solutions."

The Tattered Safety Net for the Disabled

For those of us who care about the injured and disabled, recent political talk of cutting back on the already meager benefits available for those who need them the most is troubling. The Washington Post recently ran a good article about the Social Security disability system. Here are excerpts:

Most warnings about skyrocketing entitlement spending come accompanied by a day of reckoning far off in the future (though that day is coming closer). Not so in a little-noticed but fast-growing corner of Social Security: coverage for those with disabilities. The latest report from the Social Security trustees found that the costs of the disability insurance program, which provides coverage to 11 million disabled workers and dependents, would exceed the amount coming in from payroll taxes by the beginning of next year. The disability insurance trust fund is on track to run out of money completely in 2016.

This is not necessarily an imminent crisis; Congress, as it has in the past, can replenish the trust fund by rejiggering the share of payroll taxes that flow to the Social Security retirement and disability accounts. But the report illustrates the disturbing growth trajectory of the disability insurance program, which paid out about $130 billion last year, or more than 20 percent of all Social Security benefits, retirement and disability combined. The accompanying cost of Medicare for these beneficiaries, who are entitled to health coverage after two years of disability, was another $90 billion.

The number of workers with disabilities has nearly tripled since 1990, growing far faster than the working-age population as a whole. A significant part of the growth is due to the aging of the population and the entrance of women into the workforce, making women who become disabled entitled to benefits. Another, likely temporary, cause is the economic downturn, during which disability claims have spiked 25 percent.

The rise in program costs is troubling, especially in an era when work has become less physically taxing, the population has become healthier and technology to allow people with disabilities to work has improved. David Autor and Mark Duggan noted in a paper for the Brookings Institution’s Hamilton Project that “one of the most common and rapidly expanding diagnoses for individuals receiving [disability] awards is mental illness,” which accounted for 20 percent of awards in the past decade, although the prevalence of mental disorders in that time has not changed.

Because of the entwined nature of the Social Security retirement and disability systems, the best approach would be to tackle both problems together and ensure that both are on a sustainable fiscal footing. The disability program is badly in need of updating, with a system designed to encourage those with disabilities to find work rather than penalizing them for doing so. Currently employers have no incentive — beyond requirements of the Americans With Disabilities Act — to accommodate workers with disabilities. Under the current either/or approach of disability determinations, workers are effectively required to give up on efforts to stay in the labor force even to be eligible to obtain benefits. The lengthy wait time for a final determination can consume years while applicants’ ability to reenter the workforce if the claim is denied diminishes. Meanwhile, those who are awarded benefits are discouraged by the rules from finding suitable work.

Still, it’s important to keep in mind: This is a needy population. Benefits are modest, averaging about $1,100 a month. Sixty percent of those receiving them have a high school education or less. Almost one-fourth live below the poverty level. This piece of the safety net needs to be bolstered and modernized, not allowed to unravel.

Investigation Reveals "Serious Gaps" in Federal Food-Safety Efforts

An investigative story exceeding 2,800 words on the CNN website reports on "serious gaps in the federal food safety net meant to protect American consumers of fresh produce, a system that results in few or no government inspections of farms and with only voluntary guidelines of how fresh produce can be kept safe." The piece details the 2011 listeriosis outbreak, which it says was "the most deadly food outbreak in the United States in nearly 100 years," although it "could have been prevented, according to numerous food safety experts and federal health officials." CNN highlights that while "the federal Food Safety Modernization Act became law last year, and the FDA is currently writing new regulations to increase food inspections and push for better audits," officials note that "farms might only be inspected once every seven to 10 years," and "consumer advocates doubt the new law is likely to solve all the problems in the system."

From the American Association for Justice press release.

Friday Fun

Are you old enough to remember the Ed Sullivan Show? I used to watch it as a kid. Well, OK, as a teenaged kid. It was mostly boring, but there were occasional flashes of brilliance, such as this acrobatic sister act: