Illinois Injury and Mass Tort Lawyer Blog

Published on: June 23, 2016

Nurse Escapes Liability Due to Sovereign Immunity

We all depend on medical professionals to take care of us while we are in the hospital. However, what we may not realize is that some hospitals can escape liability just because the hospital is operated by the state.

In a recent case, a man had surgery to reconstruct the back of his mouth at a state university hospital. He was then taken to the intensive care unit in the hospital to recover. The care required in the unit is complex because patients are often in very critical condition. Each nurse cares for two patients at most at a time. The nurses are required to closely monitor patients and carry out the orders given by the surgery team.

After the man’s surgery, his head had to be kept stable to enable blood flow. The doctors responsible for the man’s care did not write any specific orders about how to position his head or neck. On the day after the surgery, notes indicated that the man’s head should be kept “in a neutral position,” but nurses are not required to read these notes. Five days after the surgery, the man was found with his neck tilted to the right, and the staff present were told to avoid this practice. Later that day, he was again found with his head in the same position. His face and neck were very swollen, and he had to undergo additional surgery due to the swelling, which was unsuccessful.

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Published on: June 22, 2016

Whole Foods Market Receives FDA Warning Letter for ‘Serious Violations’

By Moll Law Group

Health food stores are becoming increasingly popular as consumers’ preferences for different categories of food products have shifted. Perhaps one of the most popular health food chains in the U.S. is Whole Foods Market, a specialty store offering a variety of alternative products, including organics, gluten-free, and vegan. On June 8, 2016, the U.S. Food and Drug Administration, the agency responsible for overseeing food safety and labeling for the vast majority of our food system, issued a warning letter to Whole Foods Market, identifying a number of “serious violations” it found after completing an inspection of one of its stores in Everett, Massachusetts, in February 2016.

Among the violations identified, Whole Foods Market failed to manufacture, package, and store foods under conditions that would reduce the growth or introduction of potential contaminants. For example, the inspectors observed that the company was preparing ready-to-eat pasta products under areas where moisture from ceiling joints above was dripping onto the counter space below.

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Published on: June 21, 2016

Student Hit While Crossing the Street to Board School Bus Entitled to Benefits Under Bus’ Insurance

By Moll Law Group

School bus drivers’ duties may be considered to start and end with children getting on and off the bus. But school bus drivers may also be responsible for making sure that students safely cross the street when entering or exiting the bus. In a recent case, a court held that a bus driver’s duties extended to helping children safely cross the street, and the bus’ car insurance was required to pay benefits as a result.

A girl was on her way to take a school bus to school. After she received a signal from the bus driver, she crossed the street to get on the bus when she was hit by another car. The girl filed a complaint to receive benefits from the bus’ insurance company for her injuries. The state required that car insurance included coverage for “PIP (personal injury protection) benefits,” which provide benefits to those injured in car accidents. The girl was trying to recover PIP benefits that were available to those in the vehicle as well as other people involved in the accident, who were not in another vehicle.

The insurance company that insured the bus argued that it was not “involved in the accident.” However, that state’s supreme court found that it was. The bus driver controlled the process of entering and exiting the bus, and the accident happened when the bus driver signaled for the girl to cross. Part of a school bus’ operation is to safely pick up and drop off students, and that role was clearly involved in this accident. Also, the accident was within the common understanding of a motor vehicle accident, since she was hit by a car while crossing to board the bus. Finally, even if the other driver may have been at fault, the girl was still entitled to PIP benefits, since the bus was involved in the accident. Therefore, the girl was entitled to the benefits from the bus’ insurance company.

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Published on: June 20, 2016

Fluoroquinolone Antibiotics Linked to Aortic Aneurysms, Achilles Tendon Ruptures, Detached Retinas, and Fatalities

By Moll Law Group

Recently, a rash of cases has sprung up involving fluoroquinolone (FQ) antibiotics. Marketed under a variety of names like Cipro, Levaquin, or Avelox, these drugs are used to treat a wide variety of infections. Some sources estimate that roughly 26 million Americans are prescribed FQ antibiotics each year for a wide range of ailments, including pneumonia, urinary tract infections, and more.

According to a Consumer Report, the drugs may cause some serious side effects like aortic aneurysms, nerve damage, or dissections. As the largest blood vessel in the human body, damage to the aorta can cause serious implications for a patient’s health, such as strokes or heart attacks and even death in some serious cases. A dissection happens when the aortic walls deteriorate, which permits blood to seep into the outer layers of tissue. An aneurysm, on the other hand, is a bulging or enlarged part of the aorta. In many situations, these aneurysms have no symptoms and are incredibly difficult to identify. It is often not until the aneurysm bursts that the victim can tell something is wrong. Once it bursts, the victim has a 50 percent chance of surviving the event. For either an aneurysm or an aortic dissection, surgery is often required as well as a lifetime of additional medical treatment and observation.

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Published on: June 18, 2016

Ethicon Transvaginal Mesh MDL Lawsuit Update

By Moll Law Group

Thousands of women have come forward to bring lawsuits against the makers of transvaginal mesh products, alleging that they suffered serious, painful, and in some cases permanent injuries as a result of the products’ dangerous nature. Ethicon is one of the main manufacturers implicated in these lawsuits, which is a subsidiary of major health product manufacturer Johnson & Johnson.

In general, these lawsuits claim that after receiving an Ethicon transvaginal mesh implant, the women experienced a variety of adverse effects, including abdominal pain, painful intercourse, and other complications as the result of the device migrating after implantation or otherwise not functioning as promised in the marketing materials associated with the device. Several of these women required subsequent revision surgeries and will need constant ongoing care to monitor the resulting complications.

There have been so many lawsuits filed against Johnson & Johnson regarding the Ethicon product that the lawsuits have been organized into an MDL or multi-district litigation. Similar to a class action, an MDL proceeding seeks to associate cases that have common facts, legal claims, and injuries. This helps expedite the processing of these cases and promotes consistency in how each case is adjudicated.

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Published on: June 14, 2016

New Study Concludes Some E. Coli Pathogens Can Survive High Cooking Temperatures

By Moll Law Group

A new study released this month concluded that some strains of E. coli bacteria, a deadly pathogen found in a number of food products like ground beef, can survive the cooking process. The study prepared foods to certain temperatures and discovered that some pathogens were still alive past 160 degrees F, the recommended temperature for cooking meat products in order to kill the bacteria. There are many different strains of the pathogen E. coli. Not all of them pose a serious health risk, but some like O157 can cause kidney failure and have even led to death in some instances.

The team of microbiologists who conducted the study hailed from China’s Huazhong Agricultural University, as well as an institution in Alberta, Canada. Information suggesting that some pathogens may survive high cooking temperatures has been available for nearly a decade, but it was not until recently that the subject was explored specifically and in greater depth.

The next phase of research for the team will involve exploring how commonly pathogens survive the cooking process and which strains of E. coli may be particularly impervious to heat. They will also look at other pathogens to see whether this issue is happening in other contexts. Another avenue of research will involve identifying other food ingredients that may help kill the pathogen.

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Published on: June 13, 2016

Court Finds Nursing Home Waived Its Right to Arbitration Despite Signed Arbitration Clause

By Moll Law Group

Businesses are smart and often will do anything to avoid litigation. Many businesses now include an arbitration clause in their contracts—requiring claims to be resolved out of court. However, in a recent case, a state’s supreme court found that even though a contract included an arbitration clause, it would not be enforced because the business waived its right to arbitration.

A woman placed her mother in a nursing home. When she enrolled her mother, she signed an arbitration agreement with the home. Later, she requested access to her mother’s medical records. The nursing home refused, citing privacy laws. The two parties continued the dispute in court. Two years later, her mother passed away.

After her mother’s death, the woman filed a notice of intention to file a wrongful death action against the nursing home. The nursing home asserted arbitration as a defense but did not require that the case be moved to arbitration at that time. Instead, it continued with the case in court, including appearing in court several times and responding to discovery. The plaintiff responded that the home had waived its right to arbitration because it had never requested arbitration during her case requesting her mother’s records. Soon afterward, the home argued that the case had to be moved to arbitration. The plaintiff argued that the home waived its right to arbitration by participating in discovery and appearing multiple times in court.

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Published on: June 11, 2016

Pennsylvania Appellate Court Reverses $28 Million Damages Award in Zimmer Knee Replacement Case

By Moll Law Group

In June 2016, an appellate court in Pennsylvania ordered a lower court to reverse its order granting $28 million in damages to a plaintiff who sustained injuries associated with a Zimmer-Biomet brand knee implant device. According to the complaint, the plaintiff was injured when she filmed a promotional video for Zimmer. She had received a knee replacement in 2006, using one of its Gender Solutions devices. In the video, she was instructed to engage in a variety of physical activities, including riding a bike and running on a treadmill.

The complaint contained causes of action for negligence, alleging that as a result of the commercial the plaintiff required three revision surgeries. Her husband also filed a cause of action for loss of consortium. To prevail in a cause of action involving a medical device on a negligence theory, the plaintiff must demonstrate that the manufacturer owed the plaintiff a duty of care, that the manufacturer breached that duty, and that the plaintiff suffered injuries as a result of the breach. In general, product manufacturers owe a duty to consumers to use reasonable care when designing, manufacturing, and marketing their products. This includes providing appropriate warnings and instructions about the safe use of a product.

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Published on: June 10, 2016

First Bellwether Trials in Xarelto Multi-District Litigation Scheduled for Early 2017

By Moll Law Group

The first batch of cases in the Xarelto multi-district litigation are set to go forward in early 2017. Situated in the Eastern District of Louisiana, the multi-district litigation includes numerous cases from plaintiffs alleging that they suffered serious injuries as a result of taking Xarelto, an anti-coagulant drug manufactured by Johnson & Johnson. A multi-district litigation, or MDL, is similar to a class action in that multiple claims are grouped together when there are sufficient similarities. Unlike in a class action, however, the plaintiffs in an MDL maintain their status as separate cases, and each plaintiff must still prove his or her individual case. Damages are not awarded to the class in general but are awarded to each plaintiff depending on the strength and merit of each individual case.

In early 2017, about four so-called bellwether cases will be tried. A bellwether case is a term used in MDL actions to describe the initial test cases that are litigated in the action. These cases typically represent common factual scenarios and damages suffered by the broader group of cases in the MDL. The outcome of these bellwether cases will serve as guidance for the parties as they negotiate a global settlement of the claims. The first two cases will be tried in Lousiana, with the third trial taking place in Mississippi and the final bellwether trial for 2017 taking place in Texas during late spring 2017. These dates are tentative and could be revised or canceled during the coming months as the parties perform discovery and prepare for the trials.

The drug was intended to serve as an alternative to Warfarin and was initially prescribed in cases involving patients who received knee surgeries or hip replacements. It was also prescribed as a way to fend off deep vein thrombosis and to prevent strokes in patients experiencing atrial fibrillation. A number of reports quickly arose indicating that patients suffered serious complications after taking Xarelto. As a result, the U.S. Food and Drug Administration issued multiple black box warnings for the drug.

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Published on: June 9, 2016

Court Holds Plaintiff May Sue Bar, Even Without Personal Knowledge of Incident

By Moll Law Group

In a case that was decided earlier this year, a man was killed after he became intoxicated at a restaurant and got into a car accident. The man was driving 79 miles per hour in a 30-miles-per-hour zone when he crashed his car. After the accident, the man’s family brought suit against the restaurant, alleging that the restaurant engaged in negligent, willful, wanton, and reckless conduct by selling and serving alcohol to the man, and that their conduct caused his death. That evening, the man had been at the restaurant from about 2 PM until almost 9 PM. Witnesses observed him being loud and slurring his words. He bought 12 drinks at the restaurant that day.

The plaintiff, a representative of the man’s estate, filed a complaint and an affidavit, as required by the state’s law. The affidavit had to describe the facts upon which the case was based, and the plaintiff based it on information gathered in the investigation. The defendants argued that the affidavit was insufficient because it was not based on personal knowledge. The plaintiff, the administrator of the man’s estate, was not present at any time during the incident. However, the court found that the plaintiff’s affidavit was based upon “information and belief” from information gathered from witness statements, a police report, and a toxicology report—and that this knowledge was sufficient.

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