Tell Congress to Protect Your Case and Your Rights!

From the American Association for Justice:

Congress is pushing legislation that will make lawsuits brought by injured patients, nursing home residents, and their families nearly impossible to pursue. The so-called "Protecting Access to Care Act of 2017" [H.R. 1215] will rig the system against individuals like you and tip the scales in favor of the health care and insurance industries. We need to send a strong message to Congress that they must protect patients and reject this bill. 

What to Know about H.R. 1215

• Affects medical malpractice, nursing homes and assisted living facilities, and drug and device issues.

• Eliminates joint and several liability, caps attorneys' fees, limits periodic payment of future damages, and gives immunity to health care providers who prescribe or dispense prescription drugs by prohibiting them from even being named in product liability lawsuits.

• Directly preempts state law by capping noneconomic damages in lawsuits against health care providers to $250,000 in the aggregate, even in wrongful death cases involving multiple defendants. The cap purports to be flexible and not preempt states that have higher damage caps, but the cap would apply to states that have struck down damage caps, and states with an overall damage cap could also now have the $250,000 cap.

If you agree that it is unacceptable for Congress to eliminate your rights to hold the parties that harmed you or your loved ones accountable, we urge you to contact your Congressperson and Senators today. Tell your representatives to stand up for you and your family and vote NO on this offensive bill.

We urge you to call your representatives’ offices and send them a letter. Please visit www.takejusticeback.com/ProtectPatients to find contact information for your elected officials in Washington.  You will also find a sample letter you can send to your Representative and Senators.

Please take action today! Your elected officials need to hear from you that you want to preserve your rights to access the civil justice system.

Linda A. Lipsen
CEO
American Association for Justice

You Should Know: Top Safety and Justice Stories of 2016

Are you making all those lists and checking them twice? Gifts? Holiday cards? Party invitations? New Year’s resolutions? Well, here’s one more for you courtesy of the American civil justice system: safer products and services.

This past year we’ve been following several stories of dangerous products or unfair practices that threaten the health, safety and legal rights of all Americans. Think exploding batteries, lead-laced drinking water, forced arbitration or faulty medical devices, for example. 

But thanks to the courage of citizens like you and the power of the civil justice system, we are holding accountable many of those who put profit over public well-being. And that’s a list we can all be proud of, as these stories so richly illustrate.

1. Faulty Medical Devices: Recalls Double

According the the FDA, medical device recalls doubled from 2003 to 2012, and new data shows that the numbers keep climbing. While the FDA approves medical devices before release, they do not do any testing and instead rely on the manufacturers to provide accurate and comprehensive testing data.

Two St. Jude Medical defibrillators recalled due to battery defects.

Two examples of faulty medical devices now on the market include the Essure birth control coil and the St. Jude defibrillator. The FDA has received over 10,000 complaints from women suffering painful side effects due to the Essure birth control device. Countless lawsuits against Essure’s manufacturer, Bayer, have sprung up across the country. Rep. Mike Fitzpatrick (R-PA) has since introduced a bill to pull Essure off the market. Meanwhile, more than 400,000 defibrillation devices made by St. Jude Medical were the subject of a recent recall due to a faulty battery. To learn more about medical device recalls, click here.

2. Forced Arbitration: Sign a Contract, Lose Your Rights

There’s always a holiday gift year that’s a dud. Maybe you’ve received an ugly sweater three times too big or a candle that smells so terrible it gives you a headache. Unfortunately, many corporations are now giving you those ugly sweaters (and forcing you to wear them), hiding “forced arbitration” clauses in consumer and employment contracts.

This loophole prohibits Americans from taking companies to court and instead forces them into secretive arbitrations, which are typically stacked in favor of the company. An investigation by The New York Times has focused renewed scrutiny on the harm caused by forced arbitrations in claims of medical malpractice, sexual harassment, hate crimes, discrimination, theft, fraud, elder abuse and wrongful death. You can join others in petitioning Congress to ban forced arbitration right here.

3. Flint, Michigan: Lead in Water Sickens Thousands

Lead found in the Flint water supply has poisoned thousands, including 27,000 children.

Residents of Flint, Michigan, were exposed to dangerous levels of lead in their drinking water ever since a decision was made to switch the source of the city water supply from Lake Huron to the Flint River.

Dr. Mona Hanna-Attisha, a young pediatrician known affectionately in Flint as Dr. Mona, discovered the problem when she noted an increase in the symptoms of lead poisoning in her young patients. Knowing that it was her moral and ethical duty to share her discovery with the public as soon as possible, Dr. Mona held a press conference. Michigan officials and lawmakers denounced her findings at first, only to relent when Dr. Mona wouldn’t back down. Dr. Mona continues to lead the recovery efforts.

4. Concussions and Brain Disease: NFL Settles Lawsuit

If you’re a movie fan, you probably saw the film Concussion, starring Will Smith. This movie is based on the true story of Dr. Bennet Omalu and his discovery of chronic traumatic encephalopathy in NFL players. CTE is a disease of the brain tissue and is caused by repetitive brain trauma. CTE is associated with dementia, aggression, memory loss and depression.

Subsequent research has prompted athletic organizations to make concussion prevention and recovery a priority. This includes many “When in Doubt, Sit Them Out” laws, which mandate that any youth athlete suspected of suffering a concussion be cleared by a medical professional before returning to practice or competition. Earlier this year an appeals court upheld a settlement by the NFL with former players, setting aside almost $1 billion for medical care due to repeated head trauma. Since this lawsuit, head injuries have decreased for NFL athletes.

5. Asbestos: Still a Widespread Hazard

Asbestos may seem like a thing of the past, but any building built in the United States before 1981 is presumed to contain asbestos. And in fact, asbestos-related diseases still kill about 15,000 Americans a year. Even though asbestos is known to be extremely dangerous, the substance has not been banned in the United States. President Obama recently signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a bipartisan bill that strengthens ways to regulate and restrict chemical substances. Because of this bill, the EPA can officially work to ban asbestos in the U.S. 

6. Exploding Devices: Faulty Lithium-Ion Batteries

Over 1 million Samsung Galaxy Note 7 phones have been recalled due to defective and explosive batteries.

From e-cigarettes to hoverboards to smartphones, reports continue of everyday devices posing an unsafe explosion hazard. The culprit is lithium-ion batteries, which include unstable and flammable liquids. When improperly made devices include these batteries, the liquid can overheat and burst through the battery, igniting the device itself. These explosions have caused burns as well as property damage from subsequent fires. The Consumer Product Safety Commission (CPSC) recently issued a recall of all 1 million Samsung Galaxy Note 7 phones, including replacement models thought to fix the problem. 

7. Prescription Drug Addiction: A National Epidemic

Prescription opiate deaths have quadrupled since 1999, killing an estimated 165,000 Americans. During the same time period, profits recorded by the drug companies that manufacture prescription painkillers have also skyrocketed. Meanwhile, a coalition of opioid manufacturers and their lobbyists have fought legislative measures introduced to stem the tide of overdose deaths.

8. Dangerous Toys: Still on Store Shelves

Nearly 260,000 kids visit emergency rooms each year for toy-related injuries, according to the CPSC. And sadly, 11 children under the age of 15 died while playing with toys in 2015. [Download report] The most common injuries include poisoning, choking, ingesting magnets or falling from riding toys. While regulators, safety advocates and the parents of injured children have succeeded in ridding store shelves of many unsafe toys, too many still get through. Learn more.

This article appeared in our December 2016 "You Should Know" e-newsletter.

You Should Know: Prescription Opioid Use Explodes

Massive Increase in Prescriptions Blamed for Abuse and Overdose

First, a quick background: Opioid painkillers are derived from the same poppy plant as heroin. They reduce the intensity of pain signals reaching the brain while raising dopamine levels in the body, producing a type of euphoria. When taken for an extended period of time, ever-stronger doses are required to achieve the same results. Medications that fall within this class include hydrocodone (e.g., Vicodin), oxycodone (e.g., OxyContin, Percocet), morphine (e.g., Kadian, Avinza) codeine, and related drugs.

Until the mid-1990s, opioids were only prescribed for pain from severe injuries or to cancer patients. That all changed in 1996 with the introduction of OxyContin, an extended release opioid from Purdue Pharma. This drug was heavily promoted as less addictive and therefore appropriate for more common conditions. Last year, 227 million opioid prescriptions were doled out in the U.S., making it the most prescribed medication in the country and Americans the biggest prescription opiate users in the world.

Most people start their nightmare descent into opioid addiction after using a legal prescription. The pattern is then all too common: When they get hooked and can no longer get refills legitimately, buy opiates on the street, or steal them from friends and family, they turn to cheaper heroin. Deaths each year from drug overdoses, more than half related to opioids, now exceed those caused by motor vehicle accidents.

Big Pharma Pushes Back HARD on Proposed Restrictions

A growing number of advocates, including former addicts and family members, are supporting legislative measures that would help stem the tide of prescription opioids. However, a recent investigation by the Center for Public Integrity and the Associated Press revealed that an industry coalition has mounted a 50-state campaign to kill or weaken these proposals.

According to the report, opioid manufacturers and their allies spent more than $880 million since 2006 on lobbyists and political contributions. That’s 200 times more than the money spent during the same timeframe by those proposing the restrictions and eight times more than the formidable gun lobby. Powerful doctors’ groups have also opposed added restrictions, arguing that lawmakers should not tell them how to practice medicine.

Meanwhile, the pharmaceutical companies posted record profits last year on prescription painkillers, generating $9.6 billion in sales.

Prevention, Education, and Solutions

The place to start in discussing prevention is to seriously question whether or not to take opiate painkillers in the first place. If your doctor prescribes one of these drugs for you or a family member, ask about and seriously consider less addictive medications, appropriate therapies and other ways to manage pain. If you do decide to go with opiates, consider these tips:

• Make sure you’re getting the right medication. Provide your doctor with as much information as possible about your condition and overall health. Tell your doctor about all your prescriptions, over-the-counter medications, herbs and supplements, as well as alcohol and drug use.
   
• Stay in touch with your doctor to make sure that the medication you’re taking is working and that the dose is appropriate.
   
• Follow directions carefully. Use your medication the way it was prescribed.
   
• Never use someone else’s prescription. Everyone is different. Even if you have a similar medical condition, it may not be the right medication or dose for you. Let your loved ones know that it is not okay to share medications with others or take drugs prescribed for others.
   
• Secure your prescription drugs. Keep track of quantities and store prescriptions in a locked medicine cabinet.
   
• Properly dispose of medications. Don’t keep unused or expired drugs. Check the label or patient information guide for disposal instructions, or ask your pharmacist for advice.

Big picture, you might also want to support proposals in your city or state that would regulate opiate painkillers. Legislation has been introduced in many states that would make patient registries mandatory, thus preventing abusers from doctor shopping. Measures have also been proposed that would limit the amount of painkillers that can be prescribed at any given time. Click here for more information about your state.

 This article appeared in our October 2016 "You Should Know" e-newsletter. 

You Should Know: The Latest on Marijuana and Driving

A patchwork of state laws define marijuana intoxication.

Marijuana and Driving

Studies analyzing the effects of driving under the influence of marijuana have been marked by contradictory research and imprecise measurement. Two major studies published by the National Highway Traffic Safety Administration (NHTSA) in February 2015 shed new light on a topic of increasing concern as 24 states have legalized marijuana (four states and the District of Columbia for recreational use, the rest for medicinal use). According to a recent article in Timemagazine, another five states could follow suit this year.

NHTSA’s first report confirmed predictions that legalization might lead to more stoned drivers. In a 2013-14 roadside survey of more than 9,000 drivers, 12.6 percent tested positive for THC (the principal psychoactive ingredient in marijuana,) compared to 8.6 percent in 2007 – a 47 percent increase. The percentage of drivers at or above the legal limit for alcohol was 8.3 percent, down 80 percent since a 1973 NHTSA roadside survey.

But here’s where the story takes an unexpected turn. The second NHTSA report focused on crash risk in what the agency described as the “first large-scale study in the United States to include drugs other than alcohol.” Data was collected from more than 3,000 crash-involved drivers and compared to 6,000 drivers not involved in crashes. While drivers who tested positive for THC were 25 percent more likely to be involved in a crash, other factors like age, gender, ethnicity and blood alcohol concentration were considered more likely the culprit than the presence of drugs. NHTSA researchers didn't mince words, writing: “Caution should be exercised in assuming that drug presence implies driver impairment.”

Meanwhile, the number of traffic fatalities involving marijuana-stoned drivers has increased in Washington and Colorado since both states legalized the recreational use of the drug, according to two recent reports. The percentage of drivers who used pot within hours of a fatal crash in Washington nearly doubled from 2013 to 2014, according to a just-published AAA study. A similar increase was recorded in Colorado with 10 percent of drivers in fatal accidents testing positive for marijuana in 2011 versus 5.9 percent in 2009.

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OK, So What’s “Under the Influence”?

Findings from these studies underscore another important point in this discussion: Measuring impairment in a person using marijuana isn’t comparable to blood alcohol concentration. “Most psychoactive drugs are chemically complex molecules, whose absorption, action and elimination from the body are difficult to predict,” NHTSA writes, "and considerable differences exist between individuals with regard to the rates at which these processes occur. Alcohol, in comparison, is more predictable.” Some marijuana users can have measurable amounts of THC in their bodies days or even weeks after using the drug, long after any psychoactive effects remain.

The uncertainty surrounding the intoxicating effects of marijuana is reflected in the patchwork of state laws defining driving “under the influence” of drugs. Some states follow a zero tolerance standard, making it illegal to have any presence of THC or other illegal drugs in your body while driving. Others set a legal THC limit expressed in nanograms (one-billionth of a gram) per milliliter of blood. In others, impairment is inferred based on the circumstances rather than defined by blood THC levels.

To review the laws on marijuana and driving in your state, click here.

What’s Next?

Of course, no one is suggesting that people should “blaze one and go for a joyride whenever the whimsy strikes,” wrote a New York Times reporter after reviewing the NHTSA study. There is plenty of evidence to show that marijuana use impairs driving skills. And as all these studies make clear, we need more research on the effects of marijuana and driving, along with better equipment for detecting and measuring marijuana-related impairment. It is also clear that the science of intoxication surrounding marijuana is different than that of alcohol and may demand a more nuanced response by policymakers, law enforcement and court officers. In other words, stay tuned for more on this evolving topic.

 This article appeared in our June 2016 "You Should Know" e-newsletter. 

The Dangers Of Driving Under The Influence Of Any Drug, Including Pot

Guy W. Crabtree

In North Carolina, a person is guilty of driving while impaired if they operate a motor vehicle while under the influence of alcohol or an impairing substance. The THC in marijuana would be considered an impairing substance. One would be impaired within the meaning of the law if one had taken a sufficient amount of THC to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.  

While we too often encounter wrecks caused by drivers impaired by alcohol, a case involving impairment solely by THC is rare. One reason, of course, is that there is no roadside or magistrate’s office testing apparatus that can easily measure the amount of THC in a driver’s blood. There is no breathalyzer test to detect THC. A blood draw and testing of that blood is necessary.  

When investigating a case where impairment is suspected and the at-fault driver was taken for medical treatment as a result of the wreck, we always attempt to get the medical records, including the lab reports, from that treatment. The blood test will usually include testing for TCH and other drugs. If drugs are present we can and will use that information in our client’s favor as we prosecute our client’s case. 

Causing injury and damage while driving while impaired will subject the impaired driver to punitive damages and we will often include such a claim in the overall damages claim.

Guy W. Crabtree is a partner with Crabtree, Carpenter & Connolly, PLLC, in Durham, NC. The firm helps injured parties from all over the nation recover from injuries caused by the negligence of others.