Child Injury Laws

Supreme Court Rejects Major Humira Lawsuit Involving Patents

Jonathan Rosenfeld — Mon, 14 May 2012 07:01:04 -0600

In a recent landmark decision, the Supreme Court refused to hear a claim from pharmaceutical giant Johnson and Johnson alleging that a rival company stole its drug technology. Johnson & Johnson originally sued Abbott Laboratories for $1.67 billion, saying that Abbott infringed on its Humira patents.

Humira, with sales of nearly $8 billion last year, is Abbott’s best-selling drug. The controversial medication is used to treat a variety of conditions, including Crohn’s disease and rheumatoid arthritis.

While we’ll never know for sure what went into the Supreme Court’s decision, I certainly hope the judges took Kara Mae Pletan into consideration. Pletan, who took Humira for Crohn’s disease, is one of dozens of people who’ve come forward saying that Humira causes severe nerve damage.

“Perhaps Humira is...efficacious in the treatment of Crohn’s Disease,” said Pletan’s court papers, filed in Cook County, IL, where Abbott is located.

“However, it is an extremely potent drug with a number of different, very dangerous side effects. One of these effects (that is the subject of pending litigation in other forums) is lymphomas and other forms of malignancies. Another dangerous side effect is the risk of permanent neurological damage.”

Rosenfeld Injury Lawyers is currently evaluating claims for various types of injuries including vision loss, demylination and other types of neurological injuries experienced following the use of Humira.

Related Rosenfeld Injury Lawyers Posts:

Humira Complication Primer: Multiple Sclerosis

Memphis Man Sues Abbott, Saying Humira Caused Histoplasmosis

Multiple Lawsuits Claim Humira Caused Permanent News Damage

Humira Complication: Hepatosplenic T-Cell Lymphoma (HSTCL)

"Sky Shelving" Still Remains an Imminent Danger to Big-Box Shoppers, Despite Thousands of Confirmed Injuries From Falling Merchandise

Jonathan Rosenfeld — Mon, 07 May 2012 08:04:20 -0600

[Photo Caption: Warehouse-like conditions in many big box stores still pose serious risks to customers.]

Here in Chicago, lasts month’s uncannily good weather meant a citywide run on Costco. Who knew so many Chicagoans couldn’t function without barbecues in March?

While I certainly couldn’t condemn my fellow shoppers’ activities, the sight of so many people crowding the aisles made me uneasy - especially as a premises liability lawyer who litigates falling merchandise cases.

As I strolled through the store searching for whatever my children needed at that moment, I couldn’t help but think of the story of Mary Penturff. Penturff was a 79-year-old Los Angeles woman who was crushed to death while shopping for garden lattices at her local Home Depot. With her horrified daughter standing by, lumber had come crashing down onto Penturff from a nearby forklift.

Then there was Todd Carranto - a 23-year-old Air Force enlistee who suffered permanent brain damage after being slammed by merchandise in a Las Vegas Wal-Mart.

Mary and Todd are just two of the more than thirty thousand people who’ve been seriously injured or killed by falling merchandise since the proliferation of big-box stores in the 1980s.

Along with a pure greed and profit, the cause behind that shockingly high number is “sky shelving,” or the practice of stocking merchandise high above shoppers’ heads. For retail warehousers like Wal-Mart, Best Buy and Home Depot, safety measures such as straps, shrink wrap, and in-store spotters take a backseat to the bottom line. A lack of regulatory activity from OSHA and other government bodies also contributes to a dangerous environment in so many big-box stores.

“It’s a lot easier and cheaper to stack the goods on top of of the shelf than in a back room or in a warehouse,” says Bob Blattberg, a professor at Northwestern’s Kellogg Business School, and an expert on falling merchandise.

Falling merchandise victims typically suffer severe trauma, including brain, neck, spinal and/or shoulder injuries. Lawsuits can be lengthy and difficult, seeing that big box retailers have so many resources at their disposal.

If you or a loved one has suffered an injury as a result of falling merchandise, we would be honored to speak with you. All of our initial consultations are free and confidential.

Resources:

Family Dollar Not Required to List Falling Merchandise Suits November 7, 2011 Southeast Texas Record

Best Buy Sued Over Falling Merchandise July 22, 2009 West Virginia Record

Jury: Home Depot Owes $1.5 Million in Accident July 1, 2009 Atlanta Journal

Unprecedented Cerebral Palsy Verdict Awards Family $144 Million

Jonathan Rosenfeld — Mon, 30 Apr 2012 06:04:55 -0600

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(Photo Caption: The VanSlembrouck family attends a press conference in their lawyer’s office. [Photo courtesy of the Detroit News.])

In what might be Michigan’s largest medical malpractice verdict ever, a Macomb Township family has been awarded $144 million for the lifetime care of their daughter, who has cerebral palsy (CP).

According to the Detroit News, 15-year-old Markell VanSlembrouck acquired CP as a result of a birth injury sustained at Beaumont Hospital in Royal Oaks. The lawsuit alleged that doctors were grossly negligent in their decision not to perform a C-section on Markell’s mother, Kimberly. As a result of being delivered through the birth canal, Markell suffered multiple hemorrhages, severe brain damage and a fractured clavicle. She weighed 10 pounds, 11 ounces at the time of her birth.

“Her injuries were the worst of any that have negligently been inflicted on an innocent child in the history of Michigan, perhaps the United States,” said the VanSlembroucks’ lawyer, Geoffrey Fieger.

Medical opinion remains divided on the “set baby weight” for C-sections. Some doctors say ten pounds is the upper limit for vaginal births, while others say that external factors, like a mother’s size and weight, must also be considered. Even the U.S. Department of Health remains uncertain about Cesareans; saying the decision to undertake them is often “unclear.”

What’s certain about this particular case is the agony Markell’s parents felt during the legal process, and the extreme costs it takes to care for a person with CP. According to a National Institutes of Health study, it takes about $1,500 a week to cover all expenses. A portion of the $144 million, in Markell’s case, will help pay for her 24-hour care for about 77 years.

“It’s been an emotional time,” said Kimberly VanSlembrouck. “It’s not about getting rich. It’s helping a poor baby who didn’t ask for this.”

In a written statement, Beaumont Hospital said it “disagreed with the verdict,” and that Markell’s condition was related to a “genetic condition.” The hospital declined to give more specifics, only saying that it plans to appeal the verdict.

If you or a loved one has a child who suffers from CP as a result of a birth injury, we would welcome the opportunity to speak with you. All of our initial consultations are free and confidential.

Tags: Birth injury, birth injuries, birth injury lawsuit, Kimberly VanSlembrouck, Markell VanSlembrouck, cerebral palsy, Michigan birth injury lawsuit, costs of caring for someone with cerebral palsy

Resources:

Official Court Papers of the Vanslembrouck Case

Causes of Cerebral Palsy - National Institutes of Health

What are the risk factors for a child developing cerebral palsy?

What is the cause of CP?

Cost of Therapies for Cerebral Palsy Patients Makes Legal Action Necessary

Cerebral Palsy Birth Injury Malpractice Suit Ends in $58 Million Verdict

Could Cerebral Palsy Be Preventable? Researchers at Wash. U. are Eager to Find Out

Jonathan Rosenfeld — Mon, 23 Apr 2012 07:01:43 -0600

(Photo Caption: A visual representation of the enzyme “Nmnat1,” which has been proven to protect brain cells. [Photo courtesy of bioquicknews.com])

Scientists at Washington University think they’ve taken a critical step toward preventing cerebral palsy - using a hard-to-pronounce protein called “Nmnat1.”

Under the supervision of research associate Philip Verghese, researchers inflicted human-like brain injuries on two groups of mice. The injuries were similar to those that cause cerebral palsy in children. The first group of rodents was “normal,” and the second had been genetically modified to produce more Nmnat1.

What the researchers found could have major significance for people. The researchers discovered that mice designed to produce more Nmnat1 showed fewer signs of brain damage. In other words, Nmnat1 seemed to completely stop brain cells from dying - a process that could prevent CP from developing in humans.

“We think, at this point, that the enzyme blocks the early disturbances that can lead to cell death,” said Verghese. “If we could find a way to increase the level in a clinical setting, it could be pretty promising.”

Verghese acknowledged that his research is still in the early stages, and that more time is needed to figure out how humans could produce more Nmnat1.

Still, the developments are definitely exciting - especially for future parents, hoping for the peace of mind of delivering a healthy baby. Verghese says his research might also be able to help Alzheimer’s and Parkinson’s patients.

“It’s a very interesting observation at this point,” he said. “We’d definitely like to move forward and understand more about developing potential drugs.

Tags: Washington University, Washington University cerebral palsy

Resources:

Abstract of Philip Verghese’s Experiment Nov. 4, 2011 Proceedings of the National Academy of Sciences of the United States of America

Can cerebral palsy be prevented?

What research is being done to assist in the understanding of cerebral palsy?

Can a delay in performing a cesarean section (C-section) contribute to a child’s cerebral palsy?

Backing Up Vehicles: Will Cameras Prevent Injuries To Pedestrians?

Jonathan Rosenfeld — Mon, 16 Apr 2012 06:00:29 -0600

The mention of a pedestrian injury usually conjures up images of a driver hitting a pedestrian with the front of their vehicle. Though far less common, backing up vehicle injuries remain a source of significant injury to pedestrians-- young and old.

An alarming 17,000 people are injured every year when vehicles 'back' into them. Backing up vehicles also account for an average 288 pedestrian deaths each year when vehicles back over pedestrians in the rear of the vehicle.

While keeping a cautious lookout can surely help prevent some of these car accidents from occurring, the fact remains that vehicle design compounded with certain angles in which pedestrians may be positioned--- gives many drivers very little opportunity to detect what is in back of them.

A proposal by the National Highway Traffic Safety Administration aims to reduce the alarming number of 'backing up' accidents by requiring the installation of built in cameras and viewing screens to give drivers a better view of what is in the path of their vehicle as they drive in reverse.

While the proposal still has to be approved by congress, I applaud this pedestrian safety technology. For a mere $160-200 per vehicle, this technology is a bargain compared with the toll such backing injuries put upon pedestrians--- who frequently sustain life-altering injuries when they are crushed or pinned beneath a backing up vehicle.

Related Child Injury Law Blog Entries:

Cars In Parking Lots Pose A Real Danger To Child- Pedestrians

Don't Bother Giving Statements To Insurance Companies After An Accident

Kids' Fractures Require Special Attention To Avoid Complications Down The Road

Expanded Birth Injury Materials Added At Rosenfeld Injury Lawyers

Jonathan Rosenfeld — Mon, 09 Apr 2012 07:46:46 -0600

As medical malpractice lawyers involved in different types of birth injury cases, we recognize that the specific events that occur behind the scenes can be difficult to compartmentalize. While the fact patterns behind different incidents may vary-- or overlap, the following areas have become consistent aspects in some of our cases. Consequently, we have expanded the birth injury section at Rosenfeld Injury Lawyers, to further refine the expanse of birth injury cases we get involved with.

Please take a moment and review this expanded section with pages devoted to:

Of course, no family anticipates that these terms will ever become part of their vocabulary. However, if the situation should arise, our team of medical malpractice attorneys remains committed to seeing your case through with the interest of you and your child first and foremost.

The Use Of Expert Witnesses Are A Crucial Element In Boating & Tubing Accident Cases

Jonathan Rosenfeld — Mon, 02 Apr 2012 07:18:58 -0600

As the operator of a boat, the driver of the craft is commonly referred to as the 'master of the ship' and is responsible for the safety of his passengers on-board and those in tow on water skis or tubes.

While the 'master of the ship' phrase be be truthful in a significant number of situations, relying simply on a phrase or even common sense is rarely enough to successfully prove boating injury cases to an insurance company or jury.

Like many fields outside of the knowledge of an average person, expert witnesses can be incredibly useful in: providing background on a particular activity, explaining the responsibility of the party being sued and applying relevant laws and codes to the specific situation.

When representing people who have sustained serious injuries while boating or tubing, I always use an expert in the field of boating and water safety to review the conduct of the boat operator in causing or contributing to the incident. Particularly in the early stages of a case, I frequently find that the involvement of an expert can be a tremendous advantage for me in thoroughly understanding the circumstances and in deposing witnesses.

Just recently, I used an aquatic safety expert in a case where a boy suffered severe injuries to his back and neck while tubing when the operators boat launched him into the side of a dock on a small lake in Northern Illinois. After reviewing the Illinois Boating Accident Report (BAR) and paramedic report, he then applied the applicable laws and standards of care (he referenced: Boating Safety published by National Power Squadrons and the United States Coast Guard Auxiliary and Chapman Piloting-Seamanship and Small Boat Handling) to formulate his opinions regarding the operators conduct.

In particular, my aquatic safety expert (who is a retired Coast Guard Officer), opined the following regarding the operators conduct:

The operator disregarded his responsibilities for safeguarding the person he was towing
Violated Rule 5 of the Federal Inland Rules of the Road which requires operators to maintain a proper lookout at all times
Violated Illinois Statute, 625 ILCS 45/5-1 stating: "Careless operation of a vessel is operating in a careless manner that causes danger to any person or property, or operating at speeds greater than which allows the operator to brig the vessel to a stop within an assured clear distance ahead."
Ignored the applicable Illinois Statute (625 ILCS 45/5-2) defining 'reckless operation' as the "the operation or manipulation of water skis, a surfboard or similar device is operating in a manner that causes danger to the life, limb or property of any person."
Violated the standard of care noted in Boating Safety related to towing a tube
Violated the standards of of care in Chapman Piloting Seamanship and Small Boat Handling which discusses the "duties and responsibilities of the skipper" and imposes a duty on the operator to protect both the people in his vessel and those he may be towing behind.

While there are always different approachs that can be used in prosecuting recreational boat injury cases, I remain committed to the use of water safety experts for to both educate people on the applicable laws and explain why the incident occurred.

Boating Safety: Prevention Of Childhood Injuries While Boating, Tubing & Swimming

Friends speak out about tubing victim WEAU.com June 28, 2011

Boating Statistics (pdf) United States Coast Guard

Navigation Rules Online U.S. Department of Homeland Security

Orthopedic Surgery Holds Promise Of Restoring The Ability To Walk For Boy With Cerebral Palsy

Jonathan Rosenfeld — Mon, 26 Mar 2012 11:19:06 -0600

For many children with cerebral palsy, complications related to orthopedic deformities and muscle spasms can quickly turn some of the most basic tasks in the impossible. While occupational and physical therapies can be useful in improving the level of functioning, the treatments may have limited effects in addressing the underlying complications.

The most commonly type of CP, spastic cerebral palsy, impacts the brain in a manner that disrupt messages from the child's brain resulting in muscle spasms. The muscle spasms, make simple movements incredibly difficult for the child because muscles commonly fire at the same time. It is common for children with spastic cerebral palsy may have difficulty with basic movements and may suffer from extreme fatigue and develop contractures which progressively inhibit their movements.

Thankfully, the medical community has made tremendous progress towards providing more expansive treatment options for children with cerebral palsy over the past decade. Depending on the type of deformity, physicians can now provide some relief with the use of newer surgeries to correct the the alignment of bones and joints that are out of place.

I was happy to hear about how some of these medical developments hold the promise of substantially improving the quality of life for a 12-year-old boy with a form of CP that has restricted his ability to walk without the assistance of braces and a walker.

Following a complex surgery at Twin Cities Hospital (Minnesota) to realign the boy's bones and joints, the boy is now able to walk in a more 'normal' upright-position which would theoretically allow him to walk without any assistive devices.

While the road to recovery for this boy will no doubt be difficult, my guess is that the promise of an improvded quality of life make's such desions a bit easier.

Life Changing Spinal Surgery Allows Young Boy With Cerebral Palsy to Walk

What are the different forms and symptoms of cerebral palsy?

What are the symptoms of CP?

Medical Treatment Options (and hard work) Open The Doors Of Opportunity For Children With Cerebral Palsy

Jonathan Rosenfeld — Mon, 19 Mar 2012 07:21:13 -0600

Decades ago there were few medical treatments available for children with CP to resume a semblance of a normal life. Thankfully, advances in medical techniques used to control the symptoms of cerebral palsy now allow children with different types of CP to live active and rewarding lives.

I began to consider the tremendous strides made in cerebral palsy treatment when I read about a young man with a potentially disabling form of CP, who beat down the hurdles to become an accomplished athlete.

For most of us, the prospect of jogging more than a few miles sounds like an unpleasant—and sweaty task. However, for a teenage boy with spastic cerebral palsy, running a few miles is really just a warm-up! The amazing story of Matthew Taylor was recently highlighted in an inspirational news article, “Teen once told he’d never walk now running half-marathon”.

At six months of age doctors diagnosed Matthew with a type of CP, known as spastic cerebral palsy that severely limited the use of his arms and legs. Given the typically grim prognosis, doctors were somewhat skeptical as to Matthews’s future ability to use his legs--- let alone walk without the use of crutches or a walker.

In spite of his doctors’ skepticism, Matthew proved them wrong. At 21-months, and after undergoing intensive physical therapy sessions, Matthew took his first steps--- without the use of any assistive devices.

While it would have been nice for Matthew to have resumed ‘normal’ development at the conclusion of his physical therapy sessions, the challenges placed upon him with his cerebral palsy continued through his childhood development. Conversely, advancement in his physical development was accomplished only through more intensive physical therapy sessions and the use of botox injections to reduce the spasticity in his legs.

Nothing worth accomplishing is ever easy.

Once Matthew began to experience teenage growth spurts, the injections and therapy began to lose their effectiveness as his bones and muscles continued to grow in poor configuration making a simple walk very difficult.

In order to correct the anatomical difficulties, Matthew required several surgeries to re-position Matthew’s femur (femoral derotational osteotomy), lengthen his hamstrings and implant a pump programmed to release muscle relaxants such as Baclofen.

Matthew continued to excel.

With the treatments, the spastic conditions that plagued Matthew were soon able to be controlled and he was able to resume many of activities that other teenagers take for granted--- like using a television remote control with his hand--- to athletics, cross-country to be exact. Years after fighting to regain control of his spastic cerebral palsy, Matthew Taylor found himself on his high school’s cross country team.

Continuing on with his goal-setting mentality and blessings from his treating doctors, Matthew plans on pushing his passion for running as he participates in even more grueling events like a 15k race and even a half marathon.

Situations like this really deserve to be highlighted because of the improvements the medical community has made with respect to the different types of treatments available to control cerebral palsy, I can attest firsthand to the tremendous efforts required on behalf of the individual and their family as they fight their way through the daily battles this condition throws their way.

Botox Considered as a New Therapy for Cerebral Palsy Patients

What is spastic cerebral palsy?

Life Changing Spinal Surgery Allows Young Boy With Cerebral Palsy to Walk

Cerebral Palsy Victim Becomes Star Softball Pitcher

Don't Assume Your Child's Birth Injury Is Compensable

Jonathan Rosenfeld — Mon, 12 Mar 2012 07:41:12 -0600

Some of the most prolific medical malpractice cases involve injuries sustained by children during the labor and delivery process. I can’t image a warm-blooded-person who isn’t moved by the very thought of a severely disabled child who faces a lifetime of developmental difficulties and endless hours of specialized medical attention.

Despite their poignant tales, these children—or perhaps more accurately, the people bringing lawsuits on their behalves, still have the burden of establishing that their child’s injury derived from the negligence of the attending physician or hospital.

That’s right, before these children receive a penny for their injuries or care-related expenses, the law says that they have the burden of proving the following:

The doctor and / or hospital has a duty to provide proper medical care for the child

The fact that a doctor-patient relationship exists is usually considered enough in most jurisdictions for a doctor to act in a professional manner and treat their patients with the skill that a reasonable doctor would provide.

The duty to provide reasonable medical care was breached by the treating doctor or hospital staff

Frequently, this part of the case proves to be the most difficult as it involves establishing what the ‘standard of care’ is for each procedure or circumstance presenting itself to the doctor. While it may be easy to second-guess a physician’s decision after the fact, establishing how a prudent physician would act or react to circumstances presenting themselves can be difficult in light of the fact that there may be different opinions about how to handle certain circumstances.

In order to establish what exactly the standard of care is in each case, parties to a lawsuit typically rely upon expert witnesses. While the name ‘expert witness’ correctly implies that the person is an expert in their profession. The medical expert’s real role is to educate the jury as to what the proper way to do a procedure or response to a set of circumstances.

Just as an injured party has a opportunity to retain an expert witness(s) to prove their case, a doctor being sued for negligence can similarly retain his or her own expert witness to support that the things that they did were in fact correct.

The doctors breach of care resulted in injuries to the child

Similar to other types of personal injury cases, birth injury lawsuits place a burden on the person initiating the lawsuit in terms of establishing the injuries alleged are due to the act of the defendant doctor--- as opposed to the injuries occurring from another source. Cases involving cerebral palsy and other types of birth injuries commonly involve allegations that the child’s condition resulted from a genetic abnormality or developmental complication as opposed to the conduct of a physician.

The child sustained damages

Most birth injury cases involve significant physical and cognitive loss, which require significant amounts of past and future care. The plaintiff's in a birth injury case may use the services of a life-care planner to chronicle what type of medical equipment and care the child will require during each phase of their life.

As opposed to arguing that the child’s damages are not present, defendant doctors may simply allege that damages should not be considered because the plaintiff failed to establish that there was a deviation in the standard of care.

Simple enough? Not so fast....

While the above elements of a birth injury case may seem simple enough, when complex medical issues are involved--- and credible experts from both sides advocate contradictory positions, the waters can quickly become quite murky. Particularly when the presenting issues represent a judgment call, equally qualified physicians may have differing ways of addressing the issue.

I was again reminded about the uncertainties involved in birth injury lawsuits when I heard about a recent trial in Florida involving a three-year-old boy with significant physical disabilities. After a mere forty minutes of deliberations, the jury returned a verdict in favor of the defendant hospital and doctors.

The trial centered on the way that the hospital and physicians interpreted--- and responded to a situation involving fetal distress. While there was no dispute that the child involved suffered profound injuries at birth due to an interruption of oxygen during the labor and delivery process that stemmed from a uterine rupture-- the alleged medical malpractice really came down to one word-- forseeability.

The tipping point of the trial was how a reasonable physician would respond to the information gathered about the situation in light of the diagnostic testing and information provided by the mother. Unlike most situations involving a uterine rupture—where a woman has a scar in her uterus from prior pregnancies or trauma--- the mother in this case, presented without any of the factors which could increase her chance of a uterine rupture.

While my heart goes out to this family and the struggles they certainly will face, situations such as this are telling of the uphill battle faced in most birth injury cases. As a birth injury lawyer, one of the more difficult parts of my job is explaining to a family with a special needs child that they may not have a case because of the difficulty in establishing a breach of care or causation.

Therefore, I try bringing complicating issues to the families attention immediately if a consulting doctor identifies them during his or her case review. While these are always difficult conversations to have, I think it’s important for families to understand the issues involved--- both positive --- and negative before we put the case in the hands of a jury.

Vero Beach jury finds hospital not liable in birth injuries that caused boy's disabilities TCPalm by Elliot Jones, January 24, 2012

Can a mother’s obstetric hemorrhage result in injury to the baby?

What is a uterine rupture and does it pose a danger to mother or baby?

Complications During Pregnancy, Such As Uterine Rupture, Put Mother At Risk

Hemorrhages (Uncontrolled Bleeding) During Delivery Must Be Carefully Monitored To Keep Mom & Baby Safe