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Mike Kelly and Doris Cheng: MICRA
Posted by: Spencer Pahlke
May 07, 2008
Topic: Medical Malpractice
Our own Mike Kelly and Doris Cheng were recently published in one of California's leading legal publications, the Daily Journal. The title says it all: "An 8.5 Million Dollar Impact on Three Juries Who Were Not Told about the MICRA Cap."
In the last couple years, Walkup lawyers Mike Kelly, Doris Cheng, and Melinda Derish have tried three medical malpractice cases--and they won each time. Mike and Melinda recovered $3.162 million for a teenager who suffered permanent injuries to his leg due to misdiagnoses; Mike and Doris teamed up to win $3 million for parents who had lost their adult son after a doctor overlooked a subdural hematoma; finally, Mike and Doris again joined forces to win a Sonoma County man more than $9 million after doctors failed to treat a spine infection before it caused permanent paralysis. In the face of these horrific injuries, each jury did exactly what was asked of it--to offer appropriate compensation to those who have suffered injuries or lost loved ones. And, by all accounts, the juries did exactly what they were supposed to, awarding these families more than $15 million.
Despite the well-considered opinions of each of these jurors, who collectively spent a few months' time looking at the evidence and arriving at a verdict, these families had 56% of the verdicts taken from them. Why? Because of California's MICRA law.
As Mike and Doris explain in their piece, "In December 1975, California enacted legislation limiting general damages in medical negligence actions to $250,000 regardless of the nature, extent or permanence of the plaintiff's suffering." That means that, in the case of the young man who essentially lost his leg, but has more than 60 years of life in front of him, he can only have $250,000 for the pain he has suffered and will suffer. That comes out to about $4,167 a year, $11.42 a day, or $.48 and hour. Who would ever dream of giving up a leg for $.48 an hour?--no one, and California law shouldn't force that terrible result on people who are injured through no fault of their own.
As you can tell, this gets me a bit exorcised.
Other websites of ours focus on medical malpractice, including Kaiser injuries, birth injuries, and brain injuries. You can also read more about these three cases, particularly the $9 million Sonoma County verdict--that county's largest medical malpractice verdict--in our Spring 2008 issue of FOCUS on Torts.
Preemption + FDA = No liability for intentional contamination and death
Posted by: Spencer Pahlke
May 03, 2008
Topic: Threats to Plaintiffs' Rights
Now this stretches me past the realm of disappointment, through the range of anger, and somewhere into the vicinity of dizziness and confusion. The FDA is now admitting that the contaminants in the Heparin--that killed 81 people--could have been put there intentionally. The reason? As the New York Times reports, the contaminant-oversulfated chondroitin sulfate-runs at only a "cost $9 a pound compared to with the $900 a pound for heparin." Of course, it has the added advantage of being fatally poisonous.
Obviously, a drug that kills those who take it is a defective product. The company that produced it should be liable for that defect--especially when it intentionally created the defect. This sound reasoning, however, is under assault.
In a case the Supreme Court will consider this fall, it may rule that lawsuits based on defective and dangerous medication are "preempted." This means that they such lawsuits will be thrown out of court. The reason, the Court is likely to say, is that the FDA had the opportunity to examine these drugs and found them safe-who are civil juries then to question the FDA?
One of the many problems with this reasoning is that the FDA is not only nothing close to omniscient about future risks posed by drugs, it is dangerously understaffed. With the heparin, for instance, it "mistakenly failed to conduct an inspection of the" offending drug plant. The reason was serious understaffing, a problem that will only get much worse in the future because the FDA is underfunded. Its budget for next year, for instance, only increases by 3%--which is not enough to cover even its expected cost increases.
At Walkup, we fight every day to protect the rights of people injured or killed by defective drug or medical device to take their cases before a juries of their peers.
You're in "good hands."
Posted by: Spencer Pahlke
April 28, 2008
Topic: Insurance Bad Faith
This is classic. Though you may have thought that you're in "good hands with Allstate," it actually turns out that those "good hands" are more like boxing gloves. The Chicago Tribune, along with many other sources, have reported that Allstate is finally release thousands of documents related to a late 90s report done by McKinsey & Co.
In the 90s, Allstate searched for ways to "revamp" its claims handling process. Of course, I assume "revamp" means "save Allstate money," which would be done by denying more meritorious claims. Sure enough, as reported in the Sarasota Herald-Tribune (more on why Florida's in the middle of this in second), Allstate used this strategy to drop its insurance payments by 20%, increase its revenue to $4.9 billion in 2006 and, of course, double the size of its legal department.
To line its pockets with this kind of cash, Allstate used a program--made by McKinsey & Co--called "Colossus." The program provided "fair" values for claims, which Allstate agents then pushed off on unsuspecting, injured people trying to recover insurance proceeds that were rightly their's. And, when injured people did not fall in, they were subjected to years of litigation. The result? The aforementioned profits, along with a reputation among plaintiff's attorneys as being an obstinate opponent.
The Colossus program and the other methods suggested by McKinsey & Co are in some 160,000 pages of documents that Allstate recently made public in Florida. For several years, injured people and their attorneys had been seeking the papers and, for years, Allstate insisted that only a fraction of the 160,000 existed. Finally a Court of Appeal in Florida which suspended Allstate's insurance writing powers in the state until it turned over the documents. Only under that pressure--Florida accounted for 17% of Allstate's sales--did the company turn over the documents. Now that's what I call "good hands."
These cases are called "bad faith cases," because they involve unreasonable conduct on the part of one's insurer. Depending on the policy of insurance, insurance companies are contractually bound to make insurance payments when a given circumstance arises--when a person is injured by an uninsured or underinsured motorist or when one is permanently disabled, for instance. Of course, as Allstate proved, insurance companies are sometimes loathe to make the payments they originally promised to make. At Walkup, we handle these insurance bad faith cases.
Why FDA Preemption should worry ordinary folks
Posted by: Melinda Derish
April 16, 2008
Topic: Defective Products
In response to the Supreme Court's recent decision in Riegel v. Medtronic, FDA preemption has been in the news a lot recently. It should stay there until people get the message loud and clear. This year the Court will hear Wyeth v. Levine, which may take preemption even farther than it has gone already, to the delight of drug and medical device companies.
This weekend's letter to the editor of the New York Times - "Drug Makers' Advantage" is right on target. In his letter, Henry Greenspan, faculty scholar at the University of Michigan, explains that FDA preemption makes as much sense as preemptive war - neither is connected to the way the real world works.
In the real world, drug and pharmaceutical companies already wield the clout of billion dollar industries. In the real world, in the name of saving taxpayer money, drug companies pay the salaries of FDA scientists who are supposed to regulate them. FDA preemption will have drastic effects on real folks who don't have that kind of clout, but most don't think about preemption very often, or at all! And if they do, they may not understand how FDA preemption can hurt them.
The pharmaceutical and medical device industries have sought FDA preemption for years. Preemption for them means that whenever the FDA says a drug or a medical device can be marketed in the United States, the patient's right to sue in state court is preempted. That's right, patients who are negligently harmed by drugs or medical devices sold in the U.S. could not sue for their injuries. The same would be true whether the drug or device was negligently designed, manufactured, tested, or marketed.
FDA preemption might not be quite so scary if the FDA had a good track record for keeping dangerous drugs and devices off the U.S. market. But it's pretty clear by now that the FDA's record for protecting patients from dangerous drugs and medical devices (e.g., Vioxx and Medtronic defibrillators) is seriously flawed.
Congress knows the FDA isn't getting the job done. For example, Senator Charles Grassley of Iowa, who has conducted oversight of the FDA's reviews for drugs and medical devices, believes that the FDA's relationship with the drug industry is "too cozy." In September 2007 he wrote: "Congress needs to do everything it can...to make the FDA more independent, rigorous and responsive in its work. Unfortunately, the case for reform gets stronger all the time, as new questions continue to emerge about FDA actions and inaction."
The medical profession also tracks the FDA's poor performance. For example, the Institute of Medicine ("IOM") published a 2006 report, The Future of Drug Safety, that identified several FDA deficiencies and made recommendations to fix them. The FDA has not followed those recommendations. As one advisor to the FDA and consultant to the IOM explains, the FDA "is in need of monumental change...." (Sheila Weiss Smith, Sidelining Safety- the FDA's InadequateResponse to the IOM, New England Journal of Medicine, September 6, 2007, Volume 357, pp. 960-963.)
Since 1992, the FDA has relied heavily on the pharmaceutical industry to pay the salaries of the FDA scientists who review new drug applications. Prominent doctors who have worked at the FDA worry that because of this, the agency has a growing sense of accountablity to the industry it regulates instead of to the people it is supposed to protect. (Dr. Jerry Avorn, Paying for Drug Approvals- Who's Using Whom?, New England Journal of Medicine, April 26, 2007, Volume 356, pp. 1697-1700.) To those who argue that having the industry pay its own regulatory agency helps save the taxpayers' money, the obvious response might be that you get what you pay for.
It's pretty interesting that the FDA has reversed its own position on whether preemption is a good idea. During the Clinton administration, the FDA argued that the agency's approval of medical devices should not preempt state lawsuits. Under the Bush administration, the FDA has reversed its position. Does anyone think the Bush administration could be pro-corporation, anti-ordinary folks?
Many people are surprised to learn that once the FDA lets drugs and medical devices onto the U.S. market, it has no active surveillance system to monitor their safety. Instead, it waits passively for adverse event reports or complaints by doctors or hospitals to come to the manufacturer, who is responsible for investigating. After the manufacturer conducts its own investigation into the complaints, it makes a report to the FDA. (Again, you get what you pay for.) As former FDA commissioner Dr. Mark McClellan explains: "One key reason drugs may be used for years by millions of patients before risks become evident is that the United States has no active drug surveillance system." (Mark McClellan, Drug Safety Reform at the FDA- Pendulum Swing or Sytematic Improvement?, New England Journal of Medicine, April 26, 2007, Volume 356, pp.1700-1704.)
It is during the time when active drug surveillance should be happening that some patients are harmed, and some of them (or their families) bring a lawsuit in their state's court. Frequently, that is when the public learns for the first time about why a drug or device on the U.S. market is dangerous. And it is in response to lawsuits, and the information they uncover, that the FDA often acts for the first time to recall a drug or device.
As Mr. Greenspan points out: "It is not often that doctors defend trial lawyers." But this should be one of those times. Because trial attorneys who devote their careers to representing negligently injured patients and doctors who devote their careers to caring for patients should be fighting together to fight FDA preemption. The public should call on their legislators to do so. And this is the year to do it, before it's too late.
Lenscrafters Settles with Class of Roughly 1.5 Million Plaintiffs
Posted by: Emily C. Wecht
April 16, 2008
Topic: Consumer Class Actions
The Recorder reported yesterday, April 15, 2008 on Walkup partner Matt Davis' landmark settlement in the medical privacy class action of Snow v. Lenscrafters. You can read the story here (subscription required).
The case, filed six years ago in the San Francisco Superior Court, is based on Lenscrafters' practice of disclosing its customers' confidential medical information -- a systematic violation of California's Confidentiality of Medical Information Act.
Lenscrafters denied the allegations and has vigorously defended the case for the last six yars, even appealing one of the superior court's interim rulings to the California Supreme Court and challenging the law on which the suit is based in federal court. The Supreme Court sided with the consumers.
Under the settlement, approximately 250,000 class members who patronized LensCrafters from March 1998 through December 1999 can claim an unrestricted $40 voucher redeemable for goods and services at LensCrafters. Another 1.3 million class members, who made purchases between January 2000 and February 2008, will be offered either $30 cash or a $70 voucher. (If less than half of this latter group makes a claim, then those who do shall receive an additional $25 voucher.) The vouchers are good on any product or service available at LensCrafters and may be used in conjunction with any other valid coupon or group discount. The settlement documents and other details can be found here: http://snowsettlement.com/documents.html
Upwards of $20 million in cash and benefits is expected to be paid out, making this the largest medical privacy settlement in California history.
You can read more about the settlement and the action here or on the Snow v. Lenscrafters settlement pages:
http://snowsettlement.com/faq.html
