“In the state of nature… all men are born equal, but they cannot continue in this equality.  Society makes them lose it, and they recover it only by the protection of the law.”
- Charles de Montesquieu

In the ongoing debate over health care reform, critics on the right are increasingly citing the lack of tort reform as a major deficiency of the current proposals floating around the halls of Congress.  Instead of focusing on truly conservative solutions to our nation’s mounting health care crisis, Republican lawmakers and pundits are playing the same old song-and-dance—blaming ballooning health care costs on trial lawyers.  This red herring tactic is a classic example of politicians trampling principle in pursuit of politics.  In this case, Republicans moonlighting as “conservatives” seek to use tort reform to shield corporate malefactors (who also happen to be their financial benefactors) from full accountability for their wrongdoing.

In so doing, they are undermining a bedrock principle of our nation’s justice system.
For years, Big Business and the U.S. Chamber of Commerce have spent millions of dollars in a public relations campaign aimed at demonizing trial lawyers, portraying them as unethical con-artists out to game the system.  These corporate interests have a vested interest in keeping the tide of public opinion running against trial lawyers because it deflects attention from the widespread problem of negligent and reckless conduct that injures consumers.  This “shoot the messenger” tactic not only enables businesses to avoid financial accountability for wrongdoing—it deliberately undermines the people’s civil liberty.

The reality is that trial lawyers are the people’s first line of defense to secure redress of grievances for private or civil wrongs committed against them.  The most highly publicized of these kinds of cases usually involve David and Goliath-type scenarios—think of the massive frauds committed by WorldCom, Enron, or Bernie Madoff and you get an idea why trial lawyers are essential to securing justice for those wronged at the hands of well-heeled rogues with deep pockets and limitless legal resources.  And yes, sometimes these cases involve substantial claims against doctors or hospitals accused of malpractice.

Despite unfair characterizations to the contrary, medical malpractice is no joke.  Every day thousands of Americans walk into doctors’ offices, emergency rooms, and operating rooms trusting their lives to the expertise and integrity of the medical system.  Errors in diagnosis, misread charts, medication errors… all can cause irreparable harm to their victims.  And these kinds of accidents happen often—far more than Republican advocates of “reform” are willing to admit and far more than most people realize.  According to several studies conducted over the last decade, up to 98,000 people die every year as a result of an estimated 15 million instances of preventable medical errors.  These statistics place death by malpractice as the 6th leading cause of death in the United States.

For the victims and their families, the tragedy inflicted as a result of medical malpractice is very real, and the process of seeking a just remedy can be overwhelming.  It is for precisely these kinds of situations that the 7th Amendment to the United States Constitution guarantees all Americans the right to a fair trial before a jury of their peers.  This right is a foundational principle of our civil liberty and should be a core tenet of conservatism because it affirms the responsibilities citizens have in a free society and the accountability of all before the law.

Nevertheless, the importance of the civil justice system and the right to trial by jury is poorly understood by many conservatives because trial lawyers are constantly demonized by special interests seeking to evade justice.  Many Republicans have been wrongly led to believe that tort “reform” is some kind of Reaganesque trickle-down solution to the high cost of insurance and the high cost of medical care.  The facts, however, don’t support such a notion.  Skyrocketing insurance premiums are not a result of malpractice litigation, and the high cost of medical care stems more from “offensive medicine” (profiteering by doctors seeking to make an extra buck), rather than “defensive medicine” purportedly resulting from fears of malpractice suits.

In 2007, the Congressional Budget Office estimated that costs associated with medical malpractice claims only amounted to 2% of overall health care spending.  Furthermore, multiple studies suggest that the high cost of medical insurance has virtually no correlation with the frequency or amount of malpractice payouts but is actually a result of insurance companies playing the market and—in some cases—intentionally misrepresenting the influence of malpractice payouts in order to keep premiums high.  Doctors are not fleeing the medical profession from fear of lawsuits, and those who are sued for medical malpractice are often permitted to continue working with little to no professional censure for the harm they inflicted.

The truth is that corporate moguls push for tort reform because they have little use for a civil justice system that puts the little guy on the same plane as the rich and powerful. These so-called fiscal conservatives don’t like equal justice.  They want preferential treatment—something they are accustomed to getting from politicians because of their hefty campaign contributions.

Conservatives need to educate themselves about the importance of a civil justice system that protects everyone and treats all litigants—rich and poor alike—as equals before the law.  Furthermore, true conservatives ought to resist attempts to federalize tort law and impose one-size-fits-all solutions to “problems” that are, in large part, the fictional creations of special interest lobbyists seeking to enrich the coffers of their wealthy clients.  Any change in medical malpractice laws should occur at the state level and be tailored to meet conditions in the individual states.  The people in Topeka may approach the same problem differently from the folks in Tallahassee.  They may be experiencing different problems, or perhaps, none at all.  In any event, the residents of Attapulgus, Georgia don’t want Chuck Schumer and Olympia Snow dictating the remedy they can pursue when a doctor leaves a pair of scissors in the site of their incision or causes avoidable brain damage to their newborn.

Tort reform subsidizes wrongdoing by shielding wrongdoers from accountability for the consequences of their misconduct.  It is an affirmative action program for corporate miscreants.  Incorporating tort reform into health care reform will do nothing to cut medical costs.  It is, however, guaranteed to result in more, not fewer, cases of medical malpractice. Furthermore, federalizing tort laws will only result in the accretion of more power in the hands of the central government and the emasculation of the rights of states and individuals.

If Republicans [or other supporters of tort reform] are truly sincere in their commitment to protecting the rights and liberties of the American people against more and bigger government, they should resist any attempt to federalize the laws of medical malpractice.

http://www.ajustsociety.org/press/article.asp?pr=5449

In February 2009, the Food and Drug Administration notified healthcare professionals that the manufacturers of metoclopramide drugs, including Reglan®, must add a boxed warning to their drug labels about the risk of its long-term or high-dose use: “Chronic use of metoclopramide has been linked to tardive dyskinesia, which may include involuntary and repetitive movements of the body, even after the drugs are no longer taken. These symptoms are rarely reversible and there is no known treatment.”

About Reglan®

Reglan® (a marketed name of the drug Metoclopramide) is a prescription drug used for the treatment of certain types of acid reflux; it is intended for short-term use. Reglan® is also sometimes prescribed for patients with diabetic gastroparesis, a disorder where the stomach takes too long to empty its contents, causing intense heartburn, nausea and vomiting.  Studies have shown that Reglan® increases the muscle contractions in the patient’s upper digestive tract, which also increases the speed at which the stomach contents empty into the intestines.

Other Names

Besides Reglan, Metoclopramide is marketed under the names Octamide®, Maxolon®, Degan®, Maxeran®, Primperan®, and Pylomid®.

Side-Effects

Common side-effects of Reglan are relatively mild, such as drowsiness, nausea, and diarrhea. However, very severe responses to the drug, even death - has been reported.

Another side effect of more serious concern is Neuroleptic Malignant Syndrome, which has been reported in possible connection with Reglan® use.  This is a potentially life-threatening condition, Neuroleptic Malignant Syndrome can cause fever, muscle-rigidity, delirium, kidney damage, unstable blood-pressure, and coma.

Tardive dyskinesia, a neurological condition, has also been reported in patients prescribed Reglan. Symptoms of this condition can include involuntary grimacing, involuntary, rapid movement in the arms and legs, rapid eye blinking, and tongue protrusion. Conditions can become constant and more severe over time.  It is very important to note that the effects of Tardive dyskinesia can persist long after the patient’s use of Reglan® is finished. Even if you have not been officially diagnosed with tardive dyskinesia, if you are experiencing any of these symptoms, please contact us for a free case evaluation.

Seek Medical Help

Please seek medical attention if you have any of these symptons.  A skilled professional should be consulted on ways to try and alleviate your experiencing any fo the above.

More On Tardive Dyskinesia

Tardive Dyskinesia is a neurological condition whose chief symptoms are repetitive, involuntary movements.  The term tardive dyskinesia has been in use since 1964. The effect of the drugs that cause the condition can be tardive, meaning the dyskinesia (involuntary movement) sometimes appears even after the drugs are discontinued. Symptoms of tardive dyskinesia may include:

• Involuntary, rapid movement in the arms and legs;
• Involuntary grimacing;
• Rapid eye blinking; and 
• Tongue protrusion.

Contact Us For More Information

If you or a loved one have been prescribed Reglan® and have experienced any of these symptoms, please contact us immediately for a free consultation. Consult with your physician before you stop taking any medications, including Reglan®.

Tim Edwards
Ed Wallis
Glassman, Edwards, Wade & Wyatt, PC
26 N. 2nd Street
Memphis, TN 38103
(901) 527-4673
EMAIL BY CLICKING HERE

Or fill out this form today for a free case evaluation:

According to the new Advisory Committee Notes, “Under new subdivision (a)(1), all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other days-including intermediate Saturdays, Sundays, and legal holidays-are counted with one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday.”

The Rules will be changed for several other time periods, as well, all of which should be noted and paid attention to in detail:

• An answer or motion to dismiss must be filed 21 days instead of 20 days after service of
  the summons and complaint. Rule 12(a)(1 )(A)(i).
• The deadline for a jury demand is 14 (not 10) days after service of the last pleading. Rule 38(b)(1);
• A motion for judgment as a matter of law (a/k/a “directed verdict”) must be filed no later than 28 (not 10) days after entry of judgment. Rule 52 (b).
• A motion for new trial must be filed with 28 (not 10) days after judgment day. Rule 59 (bO and 50 (d);
• A notice of an application for default judgment against an appearing defendant must be served at least 7 (not 3) days before the hearing. Rule 55 (b)(2).

You can real the Federal Rules of Civil Procedure online by clicking [HERE].

In Plunkett, the plaintiff relied upon a skilled physician to deliver expert testimony that the defendants failed to comply with the applicable standard of care. Although the defendants moved to exclude the expert before trial, when a new judge took over the case at trial, the defendants moved again to exclude the expert. The court agreed with the defendant, excluded the expert and forced the plaintiff to appeal.

In what is a thorough review by the Tennessee Court of Appeals on how to qualify an expert in a medical malpractice case, the court reversed and vacated the judgment of the trial court. The expert was qualified:

As we discussed in Farley v. Oak Ridge Medical Imaging, No. E2008-01731-COA-R3-CV, 2009 WL 2474742 (Tenn. Ct. App., E.S., filed August 13, 2009), parties and their experts have satisfied this “locality rule” in a variety of ways with a variety of information. In Taylor v. Jackson-Madison Cty. Gen. Hosp., 231 S.W.3d 361 (Tenn. Ct. App. 2006), an emergency physician with a practice in Atlanta was allowed to testify that Jackson, Tennessee, was similar to Gainesville, Georgia, a community about 40 miles north of Atlanta where the expert also practiced emergency medicine. The comparison was made based on information gleaned from phone books, chambers of commerce for the respective communities and information available from the hospitals in the communities. See Farley, 2009 WL 2474742 at *10. In Bravo v. Sumner Regional Health Systems, 148 S.W.3d 357 (Tenn. Ct. App. 2003), an Atlanta physician was qualified to testify that Rome, Georgia, was similar to Gallatin, Tennessee, based on referrals he received from physicians in Rome, Georgia, his review of records from that community, and information gained from seminars. See Farley, 2009 WL 2474742 at *10. In Stovall v. Clark, 113 S.W.3d 715 (Tenn. 2003), a Missouri doctor was allowed to testify that Marshall, Missouri, was similar to Franklin, Tennessee, based on his review of demographic information and his previous involvement as an expert in Tennessee having reviewed “over 20 charts.” Farley, 2009 WL 2474742 at *10 (quoting Stovall, 113 S.W.3d at 719). One of the cases we discussed in Farley was Ledford, 742 S.W.2d at 645, which involved the community of Cleveland, Tennessee. The plaintiff’s expert practiced in Atlanta but testified of “‘familiarity with the standard of care in small towns all over Georgia’ from accepting referrals and interacting with the referring doctors.” Farley, 2009 WL 2474742 at *11 (quoting Ledford, 742 S.W.2d at 648). The Atlanta neurologist was thus allowed to testify that the standard of care for psychiatrists in Cleveland would be the same as the standard of care for psychiatrists in similar “small towns” neighboring Atlanta. Id. In Farley we concluded our survey of the cases by stating:

If the expert is otherwise qualified, it is enough if he or she is actually practicing in some community in a contiguous state, and “connects the dots” between the standard in that community and the community where the alleged malpractice occurred. The fact that the dots must traverse from the community of practice through the similar community to the community of the alleged malpractice, such as from Kansas City, Missouri, through St. Joseph, Missouri, to Clarksville, Tennessee, will not defeat the connection. Referrals from and interaction with medical providers in neighboring communities, combined with “a comparison of information such as the size, location, and presence [or absence] of teaching hospitals in the two communities” should suffice.

Farley, 2009 WL 2474742 at *11.

This is a welcome ruling from the Court of Appeals.

Contact: Ray De Lorenzi, American Association for Justice
202-965-3500 x369
AAJ Press Room

Medical Malpractice Insurers Earning More Than Ever

10 biggest malpractice insurers have average profits higher than 99% of Fortune 500 companies

Washington, DC—As Congress debates nationwide health care reform, a new analysis reveals malpractice insurers have long-played a cruel hoax on legislators and the public.  By systematically distorting profits and losses, insurers created phony “financial crises,” so lawmakers would limit the legal rights of injured patients.  Today, while premiums and health care costs skyrocket, malpractice insurers have average profits higher than 99 percent of Fortune 500 companies.

The key findings of the report, which analyzes the annual financial statements of the 10 largest U.S. medical malpractice insurers, include:
•    The average profit of these insurance companies is higher than 99 percent of all Fortune 500 companies and 35 times higher than the Fortune 500 average for the same time period.
•    Malpractice insurers have seen their profit margins range from 5.9 percent to 74.8 percent, with an average of 31.2 percent.

Medical malpractice insurers have underestimated profits and overestimated losses, creating overblown insurance “crises” to garner support for limiting patients’ legal rights.  Then years later after the “crises” abated, revised filings show the companies were never in the financial peril they claimed.
•    After overestimating losses, insurers have since reported that losses over the last five years have been approximately 13.5 percent lower than initially reported.
•    By overestimating losses, companies have underestimated profits.  Insurers averaged about 5.1 percent higher profits last year and 12.4 percent higher profits two years ago; these levels of profits will likely rise as upward revisions are made.
•    Medical negligence laws were passed under false pretenses.  Overblown reported losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.

“Insurance companies are gouging doctors on their premiums to mislead lawmakers.  And today, injured patients are often left with no avenue to pursue justice, while health care costs continue to skyrocketing,” said American Association for Justice President Anthony Tarricone, managing partner at Kreindler & Kreindler LLP.

“As Congress looks to overhaul our nation’s health care system, it’s clear that limiting the legal rights of patients won’t lower health care costs or cover the uninsured,” continued Tarricone.  “The focus should be on eliminating medical errors that injure or kill tens of thousands of Americans every year.  Insurance companies clearly don’t need another handout.”

As part of its ongoing series on the topic, AAJ earlier released Medical Negligence: A Primer for the Nation’s Health Care Debate and The Truth About “Defensive Medicine.”  These reports, as well as The Insurance Hoax: How Doctors and Patients Pay for the Huge Earnings of Medical Malpractice Insurers, can be located at www.justice.org/medicalnegligence.

August was quite the month in the ongoing health care saga. Death panels. Scaring seniors. Angry mobs discovering new villains to blame for the terrible health care system we find ourselves having to fix today.

And then we have the tried-and-tested scapegoat for all of America’s ills and woes: trial lawyers.

Let’s face it: Trial lawyers — and all attorneys, for that matter — aren’t revered by the public at large (unless you need one). But for those who want to stick it to the trial bar, this bill is your chance. We can lower costs, help cover the uninsured and even put trial lawyers out of business.

No, it’s not tort reform. We’re demanding solutions that actually work. And preventing medical errors in the first place — an epidemic that plagues our entire health care system — will result in less litigation, lower costs and healthier patients.

Let’s cut the wheat from the chaff: Tort reform will do nothing to fix health care. Forty-six states have already done it, and costs have continued to skyrocket. The Congressional Budget Office and Government Accountability Office have said tort reform will save practically no money, and they found no evidence of defensive medicine. Medical malpractice suits are less than 1 percent of all civil filings — and this has declined 8 percent during the past decade. The research is definitive and absolute, and those claiming otherwise are just trying to obstruct health care reform altogether.

More than 98,000 people die every year from preventable medical errors, according to the Institute of Medicine. That report is 10 years old, and estimates are the number has gotten significantly worse. This is the equivalent of two 737s crashing every day for a whole year. If planes were crashing like this today, would we focus on giving airlines immunity or making air travel safer?

So this is how you really put trial lawyers out of business: Just cut down on the errors. Fewer errors mean fewer complications — or fewer people who will need legal recourse. Electronic medical records, bar-coding equipment, tagging surgical instruments and routine operating room checklists are just a few measures that can decrease errors. And there are countless more that can corral this epidemic and make patient safety a priority once again.

In the past few weeks, some pundits or talking heads have demanded to know, “What have the trial lawyers sacrificed to get health care passed?” But this isn’t about trial lawyers. It’s about patients, hurt through no fault of their own, left with debilitating injuries or worse. This bill is about health care, not bargaining away people’s legal rights.

But health care reform may still provide ample opportunity to put away the trial bar. We would welcome it. Fewer people who need legal recourse means injuries are more infrequent and health care is getting safer.

But taking away people’s legal rights is the entirely wrong way to do it. That’s saying it is acceptable for 98,000 people to die every year, with thousands more injured, because of preventable medical errors. And that’s also saying it is OK to dictate what their lives are worth or whether they should have any recourse at all. Such a proposition is ridiculous.

We welcome a health care system that has fewer injuries, safer patients and lower costs. But bargaining away people’s legal rights isn’t a suitable alternative. That isn’t a bill we can call health care or reform.

This blog supports Mr. Tarricone’s position.

In Tennessee, unlike in federal court, a defendant who pleads an affirmative defense must set forth facts that form the basis of the defense.

The Court held:

We have determined that the proceeding in federal court did not provide Ms. Mullins with a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia. It is undisputed that Ms. Mullins could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal proceedings. Common sense also dictates that it would have been foolhardy for Ms. Mullins to press her claim that Dr. Mejia had been negligent in the federal proceeding because doing so would have diluted the strength of her claims against the remaining defendants and would have profited her little in later proceedings against Dr. Mejia. [Footnotes omitted.]

You can read the entire opinion of Mullins v. State of Tennessee by clicking [HERE].

This opinion provides new guidance in a world where litigation against doctors is being constricted daily. It is nice to see a family afforded a chance to litigate and receive their day in court.

I will post follow-up on this report after I read it thoroughly.

In the meantime, you can visit the Medical Malpractice page for more information.

If your HiRes90k failed, and you sustained emotional or physical injuries, lost wages, medical bills, travel expenses, or any other costs, you may be entitled to recovery from the company and possibly the manufacturer or the defective component (a feedthru manufactured by Astro Seal).

If you received the defective cochlear implant recall letter, you may be entitled to relief.

If you want more information on filing a lawsuit against Advanced Bionics, a cochlear implant manufacturer, you can contact me below.

If you or your child has an Advanced Bionics HiRes90k device that was implanted prior to March 2006 (or was implanted with a Clarion II / CII device) and you or your child is experiencing difficulties with the implant or the device has failed, please email me, call me, or complete the form below. I will contact you as soon as possible:

Ed Wallis
Glassman, Edwards, Wade & Wyatt, PC
26 N. 2nd Street
Memphis, TN 38103
(901) 527-4673
ewallis@gewwlaw.com

Or fill out this form today for a free case evaluation: