California Personal Injury Law Case Notes

Don't Label "Mild Traumatic Brain Injuries" as "Concussions"

Kristine Meredith — Mon, 01 Feb 2010 15:03:56 -0800

A child's head injury can have devastating effects. To reduce the risk of the injured child suffering a second and perhaps worse injury, medical professionals should use the term “mild traumatic brain injury” to describe the child's head injury rather than “concussion.”

In a study to be published in the February issue of the journal Pediatrics, Carol DeMatteo, an associate clinical professor at McMaster University in the School of Rehabilitation Science, found that children whose injuries are labeled as "concussion" are allowed fewer days in the hospital and are sent back to school sooner than their counterparts with head injuries not diagnosed as "concussion."

Our study suggests that if a child is given a diagnosis of a concussion, the family is less likely to consider it an actual injury to the brain. These children may be sent back to school or allowed to return to activity sooner, and maybe before they should. This puts them at greater risk for a second injury, poor school performance and wondering what is wrong with them.

Professor DeMatteo said using the term "mild traumatic brain injury" instead of "concussion" will help people to better understand what they are dealing with so that they can make decisions accordingly.

Another Way Insurance Companies Avoid Compensating Innocent Accident Victims

Kristine Meredith — Fri, 29 Jan 2010 13:28:06 -0800

Proposition 213 became law in 1996. That law says that an uninsured driver who is injured in an auto accident may not recover certain damages due her, even though the accident was entirely the fault of the other driver. The damages the innocent driver is prohibited from collecting are her non-economic damages, which include pain and suffering.

The insurance companies passed Prop 213 to save money and maximize profits at the expense of the driver who was not at fault in an accident. The only exception: an uninsured driver my collect damages for pain and suffering if the negligent driver who caused the accident is later convicted of drunk driving.

By its terms, Prop 213 applies to those uninsured drivers who were actually at the wheel when they were struck by another driver. But courts have applied this law broadly to keep compensation from drivers who weren't even in their cars when the accident took place. For example, courts have ruled that Prop 213 deprives uninsured drivers of the right to be compensated for the injuries even if they were outside their parked car when they were run down.

Given the harsh results, it is important that all drivers carry liability insurance on their cars and trucks.

Proving PTSD with MEG Imaging Studies of the Brain

Kristine Meredith — Sat, 23 Jan 2010 11:04:30 -0800

A recent study shows for the first time that post-traumatic stress disorder (PTSD) can be objectively diagnosed using magnetoencephalography (MEG), a non-invasive measurement of magnetic fields in the brain. Researchers at the University of Minnesota and Minneapolis VA Medical Center published a study this month in the Journal of Neural Engineering identifying a biological marker in the brains of those exhibiting symptoms of PTSD. Conventional brain scans such as an X-ray, CT scan, or MRI are unable to detect PTSD.

According to one of the rearchers, Dr. Apostolos Georgopoulos,

These findings document robust differences in brain function between the PTSD and control groups that can be used for differential diagnosis and which possess the potential for assessing and monitoring disease progression and effects of therapy.

In addition to diagnosing those with PTSD, the researchers also were able to judge the severity of the patient’s suffering.

Attorneys representing accident victims suffering from PTSD may be able to use these imaging techniques to support their clients' claims for pain and suffering against those responsible for causing their accidents.

Medical Bills and Documents: What Does the Victim Need to Keep?

Kristine Meredith — Wed, 06 Jan 2010 16:37:19 -0800

As discussed here, damages awarded to a victim usually include the cost of medical services. Most victims who have private health insurance may have paid very little (ie. co-payment) compared to the amount the doctors or hospitals bill to the health insurer for the services. And, the health insurer also pays a lower rate than the amount that appears on the bill. For many years, attorneys representing the wrongdoer have asked the courts to award the victims the lowest amounts --the reduced sum paid by the health insurer.

Recently, the Court has ruled in favor of the victim and awarded the higher amount -- what the doctor or hospital billed for the medical services. Put simply: the victim has paid a premium for the insurance and the wrongdoer should not receive a windfall for the victim's thrift and foresight in securing insurance. The cost of medical services include "in-kind" benefits to the health insurance companies. The victim deserves the full benefit of his insurance.

The Court has found the following information helpful in allowing the victim to recover the full amount of medical expenses:

Written agreements between the victim and the medical service providers:

Registration Form
Financial Agreement
Conditions Admission
Insurance Verification
Amounts Collected
Amounts Due
Financial Counselor's Notes
Bills from medical services providers
Agreements between the medical service providers and health insurance company to accept reduced payments as payment in full
Agreements between victim and health insurance company re payments and indemnity (benefits agreement, enrollment information, etc.)

The court may also expect the victim or a family member to present evidence of steps taken to keep track of injury-related medical bills. And a doctor will usually need to testify that the billing records were a fair and reasonable representation of the medical billings.

What Damages May a Victim Seek for an Injury?

Kristine Meredith — Tue, 22 Dec 2009 16:30:21 -0800

When a jury finds that a wrongdoer is responsible for the victim's injury, then the Judge will ask the jury to decide how much money will compensate the victim for his injuries. The law refers to the compensation award as “damages” and has divided them into two categories: economic and non-economic.

Economic injuries/damages include:

· Past medical expenses -- the reasonable cost of reasonably necessary medical care related to the victim’s injury.

· Future medical expenses -- the reasonable cost of reasonably necessary medical care for the victim’s medical care in the future

· Loss of earning capacity – Past and future loss of – the reasonable value of the victim’s loss of the ability to earn money as a result of the injury

Non-Economic injuries/damages include:

· Pain and suffering

· Loss of consortium -- loss of a spouse's companionship and services, including:

Who is Entitled to Compensation for Injury to a Family Member?

Kristine Meredith — Tue, 22 Dec 2009 16:24:19 -0800

The spouse of a victim who has been physically injured may be entitled to compensation from whoever caused the injury. The spouse may be compensated for the following losses of family relationship also known as "loss of consortium":

love,
companionship,
comfort,
care,
assistance,
protection,
affection,
society,
moral support,
enjoyment of sexual relations
or the ability to have children.

The wrongdoer who caused the injury need not compensate the victim's spouse for any of the following:

The loss of financial support from the victim,
Personal services, such as nursing, that the spouse has provided or will provide to the victim, or
Any loss of earnings that the spouse has suffered by giving up employment to take care of the victim.

In California the following individuals may not recover for the family relationship or "societal" losses due to their loved one's injury.

A parent may not recover relationship losses for injury to his or her child,
Unmarried cohabitants may not recover damages for societal loss.

In the unfortunate situation where a married couple separates after the accident, the spouse of the victim may seek limited compensation (ie. the loss of assistance in parenting).

Civil Justice Group Reports on Yaz

Kristine Meredith — Wed, 09 Dec 2009 15:10:58 -0800

Today a consumer rights group reports on the risks of blood clots, strokes, and heart attacks that Yaz and Yasmin pose to women using these birth control pills. The California-based group, called The Civil Justice Research Project, also reports on the the federal lawsuits that have been filed against Bayer by the hundreds of women who have suffered serious injury after taking Yaz. The story mentions our co-counsel on the Yaz cases, A.J. De Bartolemeo of Girard Gibbs, and quotes Mike Danko:

Bayer just isn't telling women what they need to know. No woman would take Yaz if she knew that it was no more effective than other birth control pills but was more risky.

The article talks about the "corrective" ad campaign the FDA required Bayer to run, noting that -- at least according to some -- Bayer's corrective commercials were "too confusing and jargon-filled to be effective." The article links to one of the commercials.

Mike Danko Named California Trial Attorney of the Year Finalist

Kristine Meredith — Mon, 23 Nov 2009 13:57:37 -0800

The Consumer Attorneys of California (formerly called The Trial Lawyers of California), named my partner Trial Attorney of the Year Finalist for 2009 in honor of our work for a brain injured client in the case of Burdett v. Teledyne Continental Motors. The Trial Lawyers Association presented a video about the case at its annual convention awards dinner in San Francisco.

Can Traumatic Brain Injury Victims Develop PTSD?

Kristine Meredith — Fri, 20 Nov 2009 13:23:17 -0800

One would assume that if a TBI victim cannot remember the injury producing event, he cannot suffer flashbacks or nightmares re-experiencing the event. Right? Wrong.

Indeed, a diagnosis of a TBI generally requires a loss of consciousness. But the victim's loss of consciousnesss does not shield him from post traumatic stress disorder, or PTSD. Apparently PTSD can occur after a TBI, but the TBI may alter the symptoms' development. A TBI victim's symptoms may relate to events that just preceded his loss of consciousness, or to events that occurred immediately after. The symptoms may even relate to details about the trauma-producing event itself that the victim learned about later in his recovery.

Accident Victims and PTSD

Kristine Meredith — Tue, 17 Nov 2009 12:49:13 -0800

Even after the physical injuries have healed, an accident victim may still suffer from Post Traumatic Stress Disorder (PTSD). She may continue to experience flashbacks, nightmares, or daydreams in which the traumatic event is replayed again and again. The person may also suffer an abnormally intense “startle response” – like a rush of anxiety that bursts from her brain and shoots to her fingertips accompanied by a rapid heart rate. Other symptoms of PTSD may include impaired memory and difficulty concentrating and insomnia (or even a fear of sleeping due to the nightmares). The trauma of the accident disrupts various intellectual and emotional processes. It is sometimes referred to as "a normal reaction to abnormal event."

PTSD symptoms are among those that may be included in an award for pain and suffering as discussed here.

Yaz and Yasmin Lawyers Team Up

Mike Danko — Fri, 06 Nov 2009 11:51:19 -0800

We're excited to report that The Danko Law Firm has teamed up with the Yaz lawyers at Girard Gibbs LLP in San Francisco to jointly represent the victims of Yaz and Yasmin in lawsuits against Bayer. Girard Gibbs is a nationally known class action firm with a long history of representing those harmed due to the wrongdoing of large corporations.

Together we've launched a new blog to help spread the word about the dangers of these drugs and to provide information about the pending lawsuit.

Follow our Yaz blogging at the new site, Yaz On Trial.

FDA's Role In Approving Yaz and Yasmin Examined

Kristine Meredith — Tue, 03 Nov 2009 09:10:08 -0800

The legal talk show Lawyer2Lawyer invited Mike Danko and an FDA expert, Professor James T. O'Reilly from the University of Cincinnati College of Law, to discuss Yaz and the Yaz lawsuits. Mike talked about the lawsuits while Professor O'Reilly provided his insights on what the FDA does and, more importantly, does not do when approving a drug for the market.

Bayer was invited to come on the show but didn't accept.

It is an interesting discussion that can be heard on line.

Yaz Lawsuits Pile Up

Kristine Meredith — Thu, 29 Oct 2009 10:19:39 -0800

The San Francisco Daily Journal has reported on the status of the Yaz litigation. The paper interviewed a number of Yaz lawyers, including Mike Danko. Susan Galinis spoke about her lawsuit:

I'm hoping to get the word out to other women about how dangerous that drug is. . It devastated my whole life.

As usual, Bayer delined comment about its drug, except to offer the usual lawyer-speak:

Bayer's oral contraceptives have been and continue to be extensively studied worldwide and are safe and effective when used according to product labeling.

Yaz and Yasmin: Drug Company Places Profits over Safety

Kristine Meredith — Tue, 20 Oct 2009 01:18:14 -0800

The trendy Yaz and Yasmin birth control pills are unlike any others because they contain a new synthetic hormone, drospirenone. Bayer has aggressively marketed the drugs, especially to young women, as a cure for everything from acne to pre-menstrual syndrome. Unfortunately, Bayer did not adequately test the drug before bringing it to market, and it now ignores two studies on Dutch and Danish women suggesting that the drugs are more dangerous than other birth control pills that don't contain the synthetic hormone.

Women who take Yaz or Yasmin have suffered a list of harmful side effects. One of the most common is blood clots. Blood clots may lead to debilitating strokes, pulmonary emboli and heart attacks. Women on Yaz or Yasmin have also been stricken by disease and damage to the gallbladder, liver, and pancreas, among other conditions.

The Food and Drug Administration has now decided that Bayer's television commercials were misleading, because they undersold the risks of the drug while at the same time overstating its benefits. In addition, the consumer protection group Public Citizen warns all women against using either Yaz or Yasmin, and instead suggests sticking to a pill that does not contain drospirenone.

Yaz and Yasmin are no more effective than traditional birth control drugs, but they appear to be more dangerous. Nonetheless, because of Bayer's aggressive and misleading advertising, they are now Bayer's most popular drugs. In fact, the drugs are the most popular birth control pills in the world. Last year alone, Bayer sold $1.8 billion worth of Yaz and Yasmin .

Not surprisingly, with that type of money on the line, Bayer continues to promote the drugs, regardless of their risks.

One Yaz Victim's Story

Mike Danko — Mon, 19 Oct 2009 21:13:08 -0800

I admire clients who find the strength to tell their stories on television. It takes guts. When Susan Galinis said she wanted to do just that, I warned her that it would be difficult and, well, embarassing. She said she didn't care. If she could persuade just one woman to switch from Yaz to a traditional birth control pill, it would be worth it.

On Monday, Susan appeared on local Fox, ABC, and NBC stations. She showed to the cameras pictures that, until now, she hadn't shown to anyone outside her family.

After Susan's story aired, I received dozens of calls from Yaz survivors who asked me to thank Susan for getting the word out, or to offer her their help and support. Some called to ask for more information or just to talk about their own experiences. One talked about a friend she lost to Yaz. I appreciate hearing from anyone whose life has been impacted by this drug.

We're working on all of our Yaz and Yasmin cases with a Yaz law firm in San Francisco. We chuckled over the fact that Bayer had no problem speaking to reporters before the first news segment aired. But once Bayer actually saw Susan and heard what she had to say, the company apparently could think of no response and refused to speak with the reporters who produced the later segments.

Susan, you "done good."

FDA Determines Yasmin/Yaz Commercials Misleading

Kristine Meredith — Sat, 17 Oct 2009 18:03:27 -0800

Beginning in July 2003, the Food and Drug Adminstration warned Bayer (or more accurately, Bayer's predecessor, Berlex Laboratories ) that its television commercials for Yasmin were misleading and should be corrected. The FDA warned Bayer again in 2008, and again in 2009. Among Bayer's more serious violations, according to the FDA, was that the commercials minimized the risks associated with Yaz while at the same time overstating its benefits -- especially for conditions such as premenstrual syndrome for which the drug was never approved. According to the FDA:

These violations are concerning from a public health perspective because they encourage use of YAZ in circumstances other than those in which the drug has been approved, over-promise the benefits and minimize the risks associated with YAZ.

FDA Warning Re Yaz

Yaz and Yasmin Cause Blood Clots

Kristine Meredith — Sat, 17 Oct 2009 17:57:56 -0800

Yaz and Yasmin cause blood clots that often begin in the deep veins of the legs. A clot, called a Deep Vein Thrombosis (DVT), can break off and move to the brain, where it causes a stroke. If the clot moves to the lung, it causes a pulmonary embolism. If it moves to the heart, it can cause a heart attack.

Within weeks of taking Yaz or Yasmin, women have been stricken by life-changing strokes . For some women, the stroke or heart attack occur without warning. For others, there are warning symptoms. These warning symptoms include:

Pain in the calf or the back of the leg (Possible DVT)
Sudden headaches (Possible stroke)
Unusual swelling in the lower legs (Possible DVT)
Chest pains or heaviness (Possible heart attack)
Drooping of the eye or mouth (Possible stroke)
Weakness in arm or leg or speech problems (Possible stroke)
Eye problems and loss of vision (Possible eye clot)

Studies show that the risk of clots is higher with Yaz and Yasmin than other birth control drugs that don't contain drospirenone. Drospirenone is believed to cause strokes in a number of different ways. For example, besides causing clots in the legs, it is believed that the drug changes the rhythms of the heart, slowing blood flow to the point that it clots there as well.

Yaz/Yasmin Causes Gallbladder Disease Requiring Gall Bladder Removal

Kristine Meredith — Sat, 17 Oct 2009 17:55:03 -0800

Gallbladder disease includes inflammation and infection (cholecystitis), stones (chollithiasis) or other obstructions or narrowing of the ducts. It appears that Yaz increases the cholesterol level in a woman's bile while, at the same time, decreasing gallbladder movement. That leads to gallstones which can block and damage ducts, requiring that the gallbladder be removed.

Some women function well without a gallbladder. But in about 40% percent of the cases, the women will suffer pain or discomfort for months or even years after the surgery. In one out of five cases, the common bile duct will be damaged during the surgery, leading to fever, jaundice, and chronic pain in the shoulders and abdomen. Further surgery may be needed to correct the complications. Even when a second surgery is not required, many patients who have had their gallbladder removed find that they must permanently change their diets after the surgery because without a gall bladder they are unable to digest the foods they used to eat.

The symptoms of gallbladder disease include pain under the lower breastbone, eventually progressing to under the right breast and then onto the back or between the shoulder blades. Other symptoms include fever, heartburn, nausea and vomiting. The symptoms are typically recurrent.

Yaz and Pulmonary Embolism

Kristine Meredith — Sat, 17 Oct 2009 17:47:00 -0800

Yaz and Yasmin cause blood clots. When a blood clot finds its way to the lungs, the result is a pulmonary embolism. The blood clot cuts off the flow of oxygen and blood to a portion of the lung. A pulmonary embolism can be fatal. In fact, about 15% of all sudden death is attributable to pulmonary embolisms. In some cases the pulmonary embolism can travel to the brain and cause a stroke. In less severe cases it can lead to lung damage. The symptoms of a pulmonary embolism include:

Sudden shortness of breath, especially after even slight exertion;
Rapid breathing;
Coughing up blood;
Chest pain that mimics a heart attack. The pain gets worse with exercise but remains even after resting; and
Rapid heartbeat.

A more complete list of symptoms can be found here.

Surgical Interventions to Release Burn Swelling

Kristine Meredith — Tue, 29 Sep 2009 14:19:41 -0800

Victims with full thickness burns, as discussed here, on their arms and legs experience tremendous swelling from the fluids necessary to heal. The swelling puts pressure on the nerves and tissues of the healthy sections of the burned limbs. The pressure may cause a complete loss of blood flow and tissue damage to the distal limb. To relieve the pressure and promote blood flow, the burn surgeon may perform the following procedures:

Escharotomy -- slitting of the burned skin (eschar);
Fasciotomy -- slitting of the burned skin and splitting of the fascia (the thick white covering of the muscle) to inspect how the muscle is doing.

Although gruesome, the surgeons often take photos before and after the procedure to document the health of the tissue and progression toward recovery. Such photos may be helpful to educate the jury about the victim's pain and suffering.