Oklahoma Injury Lawyer Blog

I went to my great aunt's funeral earlier today and was reminded of some funny stories about her.  One of them had to do with the nursing home she used to live at.  She called 911 to keep the nursing home workers in line!

I think it was about 5-6 years ago.  Aunt Ora broke her hip while she was at home.  This forced her to have to stay in a wheel chair, so she moved into a nursing home in Shawnee.  A year or two later Ora couldn't get any of the nursing home employees to come to her room.  She kept buzzing for help.  She said she waited close to an hour and nobody came.  So she called 911!  I don't believe Ora had any problems with the staff after that. 

Here's a picture of Ora at her 100th birthday party (Aug. '07):

Here's Aunt Ora's Shawnee News-Star obit.  Aunt Ora made the best fried okra and wonderful apple cake!  You will be missed. 

The Wall Street Journal (5/23, Miller) reported, "Johnson & Johnson faces civil lawsuits regarding the antibiotic Levaquin [levofloxacin] filed by one of the most prominent plaintiff's attorneys involved in the suits over Merck & Co.'s Vioxx [rofecoxib] painkiller." The suits, filed "on behalf of three plaintiffs from around the US," alleges "that J&J and its Ortho McNeil unit promoted Levaquin as a safe treatment for bacterial infections despite allegedly knowing for years that it could cause a higher incidence of severe tendon ruptures and tendonitis." The suits "comes nearly a year after the Food and Drug administration, responding to pressure from consumer groups, requested that black-box warnings be added to the antibiotic...regarding the risk of tendon ruptures." Lead plaintiff lawyer Mark Lanier, claimed that "Johnson & Johnson and Ortho-McNeil have succeeded in convincing physicians to prescribe a more dangerous drug which, in turn, makes these drug companies more money."

From the American Association of Justice News Brief

Consumeraffairs.com reports that two class action lawsuits have been filed in response to the recall of Hydroxycut.  The respective suits were filed in Tennessee and Canada.  The lawsuits accuse the manufacturer of failing to warn of the drug's dangers. 

The FDA has received 23 complaints of liver damage apparently caused by the product.  The drug can also cause heart failures, seizures, and rhadomyolysis.  "The [Tennessee] suit alleges counts under negligence, breach of express and implied warranties, fraud, failure to warn, unjust enrichment and violations of the Tennessee Food, Drug and Cosmetic Act, among others." 

The recent recall of Yamaha Rhino ATVs is not extended to Yamaha Australia.  The AU News article contrasts this to the Yamaha US press release stating that owners should "not operate your Rhino until it is modified with these repair parts." 

The article adds:

• Up to 150,000 Rhino ATVs repaired in the US
• Involved in 46 recorded deaths
• Yamaha facing 200 current lawsuits
• Most of the 200-odd claims facing the US manufacturer from American buyers revolve around crush injuries from arms and legs exiting the vehicle in such rollovers.
• The US Product Safety Commission found that "of the rollover-related deaths and hundreds of reported injuries ... many appear to involve turns at relatively low speeds and on level terrain".
• Yamaha is facing at least one claim so far involving the Rhino ATV in Australia
  

The Oklahoma Highway Patrol is reminding Oklahomans of our seat belt laws:

"Oklahoma Highway Patrol has a 'no tolerance' policy for seat belt and child restraint violations and we do not issue warnings. Every operator and front seat passenger along with anyone under the age of 13, is required to be in a safety seat belt system," said Captain Chris West, Department of Public Safety spokesperson.

Care Living Center in Edmond has lost its certification and federal funding leaving more than two dozen of it's residents searching for a new home.  The date for federal funding to stop is May 27, 2009.  The residents will have 30 days to find new homes. 

The Oklahoma State Department of Health cited the nursing home for 'immediate jeopardies'; believing that "there is an imminent danger to the health, safety, and welfare of the residents." 

The Health Department's inspectors found one resident with 17 pressure ulcers who was not receiving appropriate treatment ordered by a physician. 

Other examples of nursing home abuse at the Center:

• Some of the residents were not being turned or cleaned
• Some of the residents were not always fed (Some had severe weight loss)
  
• Some residents had not received assistance to eat properly 
• No one to answer residents' call lights
  
• Nursing home staff members were not trained appropriately
• Two patients had wandered from the facility before being found blocks away
• Nursing home employees were not following doctor's orders to care for medical problems

The Trial Lawyer Resource Center posted yesterday that two personal injury lawyers in Georgia have filed the first Hydroxycut lawsuit in State Court.  The current suit is not a class action lawsuit (yet).  

Yesterday's Journal Record reported that:

The Oklahoma Senate gave final approval on Tuesday to House Joint Resolution 1041, referring the issue to the general election ballot in 2010. The vote was 26-22, with all 22 Democrats opposing the plan.

Oklahomans will now vote on whether appointed Oklahoma Workers' Compensations Court judges will require Senate confirmation. 

Military families that are the victims of medical malpractice may soon be able to hold the military liable for negligent medical care.  Congressman Hinchey (D-NY) has authored a bill that will Reverse Military Medical Malpractice Injustice.  Hinchey states that, "[t]his legislation provides members of the military and their families with a way of holding their medical providers accountable for negligent care.  They will no longer have nowhere to turn should something terrible happen."

This could be great news for the service men and woman of our country.  I'm interested in seeing what the expected additional cost would be.

I'm currently reading Blink: The Power of Thinking Without Thinking by Malcolm Gladwell.  The book takes a look at snap judgments and what we do in an instant.  Gladwell also compares snap decisions with slow analytical decision making.  He leads with an example of a sculpture.  All the evidence, such as testing the material, shows that the sculpture is authentic.  This is contrasted to a group of experts that immediately thought something was wrong.  They couldn't put their finger on it, but something didn't seem right.  The first word that popped into the mind of one of the experts was "fresh."  Which way is more accurate?  After a year of testing it was determined that the sculpture was in fact a fake.  

Besides being a good storyteller, Gladwell discusses the likelihood of a doctor getting sued for medical malpractice.  He gives the example of you, the reader, working for a medical malpractice insurance company.  You're given two choices to decide how prone a doctor is to committing medical malpractice:  1) Do you examine the doctor's training and previous records to see how many errors they've made over the last few years? Or 2) Listen in on a brief conversation between the doctor and a patient?

According to Gladwell, listening in on the doctor/client interaction is much more predictive than where the doctor went to school and how error prone he/she is:

Analyzes of malpractice lawsuits show that there are highly skilled doctors who get sued a lot and doctors who make losts of mistakes and never get sued.  At the same time, the overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit at all.  In other words, patients don't file lawsuits because they've been harmed by shoddy medical care.  Patients file lawsuits because they've been harmed by shoddy medical care and something else happens to them. 
(underlining added).

Gladwell states that the something else is the human interaction element.  How was the patient treated on a personal level?  In other words, people don't sue doctors they like.

The Oklahoma House of Representatives passed a resolution yesterday that will ask voters to require Senate confirmation of Oklahoma Workers' Compensation Court judges.  The Journal Record reports:

The House voted 60-37 for the bill and sent it to the Senate for final consideration in spite of opponents who said it would replace Oklahoma's nonpartisan appointment process with the gridlocked, highly politicized process of Washington, D.C., where partisan disputes in the U.S. Senate often delay judicial appointments.

Currently, state district court judges are directly elected, and civil and criminal appeals court judges and Supreme Court justices appear on a retention ballot at the end of their appointed term. But workers' comp judges are appointed by the governor and never appear on a ballot.

The article also mentions that similar legislation was vetoed last month by our governor. 

Today's Oklahoman reports that our State Troopers may start using the new electronic insurance verification system as soon as this upcoming Memorial Day weekend. 

This is good news.  Something's got to be done about the uninsured drivers roaming our streets.  "It's estimated nearly one in four Oklahoma motorists are driving without vehicle insurance."  The electronic system allows for the officers to know immediately if the pulled over driver should be fined for driving without insurance.  The article states that all departments in Oklahoma will be using the system by July 1.   

Today's The Journal Record reports that our legislature passed the recent civil justice bill yesterday:

The bill was approved just four days after lawmakers revealed an agreement with trial attorneys and patient advocacy groups who opposed civil justice changes that might block Oklahomans' access to the courts.

The civil justice bill redefines what constitutes a frivolous lawsuit and strengthens summary judgment rules to make it easier for a judge to dismiss a lawsuit that has no merit before it goes to trial.

Will this actually end the tort reform debate in Oklahoma?

Today's Journal Record reports that the Oklahoma Legislature has reached a compromise with a new civil justice bill.  The bill mainly affects Oklahoma personal injury and medical malpractice lawsuits. 

Some of the changes:

• Noneconomic damages are capped at $400,000 unless willful misconduct is proven in court.  (There was a push for a "hard" cap of $300,000 which could not be removed).
• In cases where the judge and jury decide that noneconomic damages in excess of $400,000 are warranted, the additional money would be provided by a state-created indemnity fund. This begs the question: who's funding the additional damages?
  
• Concerning "bad actors" in the medical community - The bill prevents information from peer review proceedings from being discovered by a plaintiff in a lawsuit except in very limited circumstances.
• Class actions: Republicans dropped their attempt to make all parties to a class-action lawsuit opt in to participate.  The civil justice bill sets specific guidelines for certifying a class and for determining attorney fees.
• The "certificate of merit" requirement is back for professional liability cases.  The previous certificate of merit requirement only applied to medical malpractice cases (and was thus unconstitutional).  This requirement now applies to other professionals.
• Joint and several responsibility: Allows a defendant who is more than 50 percent at fault to pay an additional portion of the damages.

Debt collectors appear to be using Facebook to get info on the people their pursuing:

 
One Elk Grove mother says she was scammed by a debt collector who claimed to be a college student looking for advice on her town. She accepted him as a 'friend' on her Facebook page even though they had never met.

The attorney in the video is Jonathan Stein.  He's a personal injury lawyer out in Elk Grove, CA.  He's also the author of Litigating MIST Cases.  The MIST Book is a step by step guide to fighting insurance companies in what they've termed "Minor Impact Soft Tissue" (MIST) cases. 

The AP (5/5, Juozapavicius) reports, "A 15th medical negligence complaint has been filed against an Oklahoma City surgeon who made international headlines after performing a risky operation in 2006 that left a Russian teen brain dead." Of the other cases, "as many as 11...against" Paul Christopher Francel "could go to mediation this month."

From the American Association for Justice News Brief.

Oklahoma County District Attorney David Prater stated this week that Oklahoma nursing homes should allow families of nursing home residents to put video cameras into the residents' rooms.

Prater asked, "If they're above-board and fully staffed and take care of the residents, what do they have to hide?"

The executive director of the Oklahoma Association of Health Care Providers stated that there's no law against it, but a camera "in more cases than not is used to sue a nursing facility."

Site note: The director obviously has a financial incentive to make it harder to prove a nursing home abuse case. Why would the defendant nursing home/insurance company want proof of the abuse? 

I've heard of Hydroxycut, but I didn't realize how popular it is: "It accounts for about 90 percent of the market for weight loss supplements, with sales of about 1 million bottles a year."

The Food and Drug Administration issued a warning today to consumers to stop using Hydroxycut because it has been linked to serious liver injuries. 

The Huffpost article mentioned that dietary supplements are not as tightly regulated by the government as medications and that manufacturers don't need FDA approval ahead of time to market the products.