September 2011 Archives

New Tennessee Law may lead to Greater Suffering for Victims of Nursing Home Abuse and their Families

September 30, 2011

As an increasing portion of the United States' population reaches its golden years, it would seem that more safeguards would be put in place to advance and protect the interests of aging Americans. However this seems not to be the case, especially in the state of Tennessee. Earlier this year, Tennessee lawmakers passed new legislation that limits the non-economic damages that a victim of nursing home abuse or nursing home malpractice may recover. This legislation comes only two year after the Tennessee legislation passed measures that greatly reduced the oversight and regulation of nursing homes in the state. Needless to say, victims of nursing home abuse, and their families, are outraged.

Dennis Matthews, whose mother, Verdie Matthews, died from dehydration and malnutrition at a nursing home owned by Life Care Centers of America, sued the Tennessee based company. At trial, the jury found the nursing home negligent, and awarded Matthews 11.5 million dollars. However, after the trial, the judge overruled the verdict, and Matthews and the company reached a private settlement. For Matthews, his ordeal did not end ideally. He did not receive the compensation he was originally awarded by the jury at trial. The company was not held fully accountable for the nursing home abuse that Matthews' mother suffered. But, this nursing home was indeed held responsible. However, for plaintiffs bringing this type of case in the future in Tennessee, holding nursing homes accountable for their malpractice may not be a realistic possibility.

According to The Tennessean, earlier this year, Tennessee law makers passed a measure placing strict limits on the rights of nursing home patients and their families to sue nursing homes for poor care. This new law, which caps the amount a jury can award, is slated to go into effect before October. This new law comes just a couple of years after lawmakers vastly reduced oversight of the state's nursing homes by eliminating regulations mandating that nursing home operators file detailed reports on adverse events affecting patients. The previous law also eliminated requirements that the state investigate those incidents. Combined, these laws mean lessened regulation of nursing homes, and the decreased ability of injured patients or their families to hold negligent nursing homes responsible for their actions. Overall, this seems like a poor state of affairs. So, the question is why is Tennessee choosing to take this route?

According to state politicians and state Health Department officials, the laws reducing the regulations on nursing homes were designed to decrease the backlog of nursing home abuse cases that had gone uninvestigated, and to streamline the whole investigatory process. Although this change came at the request of Health Department Officials, attorneys who regularly handle nursing home abuse or nursing home malpractice claims argue that this new law, which caps the amount plaintiffs can recover in a lawsuit, in conjunction with the previous law which resulted in lessened regulations of nursing homes, will lead to nursing homes operating negligently with impunity.

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The Recently Emerging Trend of Criminalizing Medical Malpractice may change how Doctors Practice Medicine

September 27, 2011

Normally, when a patient, or a patient's family, believes that the treating physician may have been negligent in some case, the remedy is the pursuit of a civil medical malpractice case with the aid of a medical malpractice attorney. However, according to Reuters U.S. News, there has been an emerging trend over the past few years of punishing medical malpractice with criminal charges and convictions, instead of, or in conjunction with civil proceedings and civil remedies.

This trend of criminalizing medical malpractice has come as the result of the increase in fatal overdoses on prescription medications seen throughout the nation. Prosecutors in states such and Georgia and Florida believe that in order to quell this trend, it is more effective to prosecute the doctors, who grant access to the medications, rather than the patients.

The increased attention prosecutors have been giving this phenomenon recently may be warranted. Between the years 1999 and 2006, fatal overdoses on prescription painkillers more than tripled to 13,800 in the United States, according to the Centers for Disease Control and Prevention. In response to this disturbing trend, law enforcement agencies thought out the U.S. have stepped up their efforts to seek out and punish doctors who over prescribe prescription medications. According to information from the U.S. Drug Enforcement Administration (DEA), in 2003, the DEA reported 15 physician arrests that resulted in convictions. However, by 2008, the most recent year with comprehensive data, the number had increased to 43.

Some of the cases brought against physicians are brought through the controlled Substance Act, or other similar state statues. To establish guilt under this act, which was passed in 1970, a prosecutor must prove that the physician knowingly and intentionally prescribed the medication outside "the usual course of professional practice" or not for a "legitimate medical purpose." In the alternative, in cases that prosecutors feel are extreme and deserving of harsher penalties, a prosecutor may seek to bring involuntary manslaughter charges against an offending physician.

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Medical Costs Are Outstripping Coverage, Causing Headaches for Patients

September 26, 2011

A practice called "balance billing" has patients with full medical coverage paying exorbitant out-of-pocket costs, according to a report in the Atlanta Journal Constitution. It's a controversial and sometimes illegal practice that occurs when a patient's health plan pays less than what the doctor or institution wants to be paid, and it has healthcare providers going after patients for money they may not even owe.

Say, for example, a young man with full medical coverage is involved in a car accident and has to be airlifted to a hospital five minutes away. He recovers, but his pocket takes a decided hit when he opens his mail to find a $20,000 bill for the helicopter ride, and his insurer only pays $8,000 - a price they find much more reasonable. Georgia State Rep. Rusty Kidd found himself in a similar situation last year when he was being carried in his wheelchair down a flight of steps and one of the steps suddenly broke. A broken neck required he be transported to an Atlanta-area facility by air ambulance.

Although the bill was $27,000, his insurer would only pay a fraction of the cost, leaving Kidd to cover the rest. "Without a set contract, insurers often pay only what they determine is a reasonable price for the service," writes AJC reporter Carrie Teegardin. The real problem often arises when patients who are part of H.M.O.'s, P.P.O.'s and other network health care plans choose to use an out-of-network provider. In emergency situations like Kidd's, the patient may not even have any choice in the matter.

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Do the Families of Uninsured Drivers Deserve Compensation? The New Jersey Supreme Court Says No

September 24, 2011

On August 29, 2011, the Supreme Court of New Jersey ruled that a statute barring uninsured motorists injured in automobile accidents from recovering also applied to the heirs of insured drivers who were killed as a result of an automobile accident. According to the New Jersey Law Journal, the Court ruled that an heir cannot initiate a wrongful death action on behalf of a decedent who was killed as a result of an automobile accident, if that decedent was an uninsured motorist. The statutory law that the court relied on in its decision was N.J.S.A. 39:6A-4.5(a). It is quoted below:

"Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by section 4 of P.L.1972, c. 70 (C.39:6A-4) , section 4 of P.L.1998, c. 21 (C.39:6A-3.1) or section 45 of P.L.2003, c.89 (C.39:6A-3.3) shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile."

Although this statutory language only refers to the right of an injured party to bring suit, the court determined in its decision that there is no legislative intent to suggest that the heirs of a deceased party have any greater rights than that party would have had if he were brining suit on his own behalf.

The New Jersey Supreme Court laid down this decision in Sheila Aronberg v. Wendell Tolbert, et al. Sheila Aronberg is the mother of Lawrence Aronberg, who died when his car was struck from behind on the New Jersey Turnpike on Sept. 15, 2005, by a tractor-trailer. As a result of her son's death in this accident, Sheila Aronberg sued both the truck's owner, Fleetwood Trucking Company, and the truck's driver, Wendell Tolbert, under New Jersey's Survivor Act and the state's Wrongful Death Act.

Prior to the accident, Lawrence Aronberg's automobile insurance policy with Allstate insurance company had been cancelled because of lack of payment. Because Lawrence was uninsured at the time of the accident, pursuant to N.J.S.A. 39:6A-4.5(a), the Superior Court judge dismissed the survivor claim, but allowed the wrongful death action to proceed. The Superior Court's rationale for allowing the wrongful death action to proceed in the face of the statute was that the wrongful death claim belonged to the heirs, not the decedent. Therefore, the claim was not barred by the statute.

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Law Suit Filed against Advertising Company 1-800-GET-THIN Claims Fraud and Deviation from the Applicable Standard of Care

September 16, 2011

The family of a California woman who died three days after receiving weight loss surgery filed a law suit September 2, 2011 against the advertising firm and physicians alleged to be responsible for the decedent's death. Although the classification of the allegations was not made known, according to the information released by, it is likely that the family is seeking to recover for fraud and medical malpractice. According to the complaint filed by the family's attorney, John Blumberg, the care received by the decedent "fell below the applicable standards of care," causing her death. Although the family is seeking damages against the doctors for medical malpractice, the amount of damages sought is unspecified.

On December 26, 2010, three days after having a Lap-Band device surgically implanted, Tamara Walter passed away. Ms. Walter underwent surgery at an outpatient clinic located in Beverly Hills, California. According to the Los Angeles Times the clinic has operated under several different names, including Beverly Hills Surgery Center. The clinic is now known as New Life Surgery Center. The family's lawsuit is not directed against Allergan Inc., the maker of the Lap-Band device, which is a tube that is surgically placed around the stomach to discourage overeating. The targets of the lawsuit are 1-800-GET-THIN, an advertising company, and two physicians, Dr. Atul Madan and Dr. Daniel Shin.

The crux of the complaint against the advertising company is that the company fraudulently induced Ms. Walter into receiving the surgery that ultimately led to her death. The complaint alleges that the advertising company, along with another firm called Top Surgeons, LLC, solicited patients with advertising slogans such as "Top Rated Surgical Specialists," "expert physicians, nurses and other trained personnel," and "state-of-the-art facilities" with an "unmatched safety record."

According to the lawsuit, these claims were fraudulent because at the time these statements were made, the firms knew that at least one of the physicians involved with Ms. Walter's surgery was under investigation by the Medical Board of California as a result of a 2009 misdemeanor criminal conviction, and that the surgery center where the operation was performed "had a history of documented deficiencies and its accreditation had been refused or revoked by more than one accrediting agency."

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Incidents of Pedestrian Car Accidents Decreasing, but Pain Lingers

September 15, 2011

The year 2009 saw the loss of 4,092 lives and 59,000 injuries in pedestrian/motor vehicle related crashes, according to the National Highway Traffic Safety Administration (NHTSA). While nearly one pedestrian is injured every 9 minutes, these new statistics would still certainly suggest that occurrences of pedestrian accidents are heading towards a continuous downwards trend. It's a trend that can be attributed to many factors including fewer people choosing to walk, changes in behavior, or to improvements in the education of and awareness of drivers and law enforcement officials.

However, while that is a significant decrease from the 5,228 deaths reported in 1998, and an additional 69,000 injuries, reports that research and hospital records show that only a "fraction of pedestrian crashes that cause injuries are ever recorded by the police." My experience as a pedestrian accident lawyer in Atlanta bears these facts out; and more often than not, I find that while incidents are fewer and further in between, the pain associated with them still lingers.

Just this past month, for example, three Clayton County teens were struck and killed by a distracted driver on Highway 138, near I-675. The driver in that instance has been charged with DUI, hit-and-run and other charges after plowing into the group of boys as they walked east in the emergency lane. CBS Atlanta covered the tragic accident, providing updates as the teenagers died within several hours of each other. After finding out about the accident, one of the mother's immediately rushed to the scene. "I knew my son was involved because I saw his shoes and his hat laying on the ground. I knew because I bought them. How could any human being actually hit not one, not two, but three young teenagers and just leave?" she said.

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The United States Enjoyed a Decrease in the Instances of Workplace Casualties in 2010, but this may have come at Workers' Expense

September 6, 2011

According to the Bureau of Labor and Statistics the number of workplace accidents, workplace fatalities and workplace injuries in the Unites States has declined over the past year. Even with the nationwide institution of workers' compensation statutes, which allow injured workers, or the heirs of workers killed while on the job, to recover for medical expenses that arise as a result of the injury and a portion of weekly earnings lost as a result of the injury, a decrease in the number of workplace injuries and fatalities can only be good for workers. Or can it?

According to The Business Journals, the poor economy may have more of an impact on the decrease of workplace fatalities than anything else. Ironically, what should be a victory for workers across the United States may have actually come at their expense.

In 1970, the United States Congress created the Occupational Safety and Health Administration (OSHA). The purpose of OSHA was to "ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. Goal was to decrease the number of workplace fatalities and injuries." In addition to the establishment of OSHA in 1970, several states have also instituted workers' compensation laws that provide compensation to workers, or their families, who have either been injured or killed while on the job.

Over the past years, since the establishment of OSHA, there has indeed been a decline of workplace injuries. According to the Secretary of Labor, Hilda Solis, the number of workplace fatalities is down significantly from the 14,000 estimated deaths that occurred in 1970. In 2010 there were 4,547 fatal work injuries in the United States, almost 10,000 less than in 1970.

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Could it have been Avoided?: Six Indiana State Fair Attendees Die as a Result of Inadequate Inspection of Fair Stage

September 1, 2011

When we attend an entertainment event, normally we are thinking of how much fun the venue is likely to be. Whether or not the venue will be safe is normally the last thing on our minds. However, the tragic stage collapse that occurred at the Indiana State Fair on August 13, 2011 may change the way we all view entertainment venues.

See the collapse of the stage below:

As the result of the tragic deaths of 6 people, and the injuries sustained by several others, several lawsuits are being filed, including wrongful death suits, against the owners of the stage rigging structure, the agency that booked the show, and the owner of Ticket Master, the agency who sold the tickets for the show.

The attorney representing Janeen Beth Urschel, who survived the stage collapse, and the estate of her partner, Tammy VanDam, who was killed as a result to the collapse has filed suit against the three above mentioned event organizers seeking damages in excess of $60 million dollars, according to the Indianapolis Star. Kenneth J. Allen, the attorney representing Urschel in her negligence suit and the estate of VanDam in a wrongful death suit, claims that Urschel's injuries and VanDam's death were caused by a lack of due care on the part of the event organizers.

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