St. Louis Personal Injury Attorney Blog

Metal-on-Metal Artificial Hips May Pose Serious Dangers to Patients

2012-05-14T21:05:15Z

One of the most commonly used medical devices is the artificial hip, with hundreds of thousands of hip implant procedures performed in this country each year. Designed to provide pain relief, hip function, and an improved quality of life for the patient, the artificial hip implant has undergone increased scrutiny of late due to the questionable safety of the metal-on-metal version of the artificial hip.

]]> The all-metal hip replacement features both the ball and socket made from metal, typically chromium or cobalt. The alternative is an artificial hip made primarily from ceramic or plastic.

In recent years, there have been a growing number of reports of pain and other complications in patients who underwent metal-on-metal hip replacements. When the metal ball and socket rub against each other, tiny particles may wear off and enter surrounding tissue. This can cause the patient pain and require the medical device to be replaced with another costly surgery.

Serous Reactions to Metal-on-Metal Artificial Hips

There also have been reports of traces of metal from the implant entering the patient's bloodstream and causing serious problems beyond significant pain and swelling, including effects on the nervous system, heart, and thyroid gland. These effects may be manifested by:

•· Chest pain or shortness of breath

•· Weakness or numbness

•· Change in vision or hearing

•· Fatigue and weight gain

•· Change in urination habits

Last year the U.S. Food and Drug Administration ordered makers of metal artificial hips to conduct new safety studies. And it has scheduled a meeting of the Orthopaedic and Rehabilitation Devices Panel of its Medical Devices Advisory Committee for June 27-28, 2012, to further examine the medical devices. According to the FDA, the purpose of the public meeting is to seek "additional expert scientific and clinical advice on the risks and benefits of these devices so that the agency can continue to make reliable safety recommendations to patients and health care providers."

Victims of Defective Medical Devices of Legal Right to Pursue Compensation

Most medical devices, like metal-on-metal artificial hips, do not come with a manufacturer's warranty. But like the victim of any defective consumer product, patients harmed by metal-on-metal hip replacements have the legal right to pursue compensation for their injuries and financial losses.

Differences Between Railroad Worker Injury Lawsuits and Worker's Compensation

2012-05-09T20:55:27Z

A law passed by Congress more than 100 years ago, designed to compensate railroad workers hurt or killed on the job, is still in effect today. Known as the Federal Employers Liability Act (FELA), it addresses the heightened dangers railroad workers face, and differs in several respects from the workers compensation process that covers most other industries.

]]> Origins of FELA

As the railroad industry exploded in the early 1900s, so did the hazards to railroad workers. On-the-job deaths and severe injuries were not uncommon. So Congress enacted legislation in 1908 that focused specifically on railroad workers to adequately compensate them or their families due to work-related injury or loss of life.

Sounds like worker's compensation, right? Not exactly.

FELA Compensation Higher than Worker's Compensation

There are two primary differences between FELA and worker's compensation. The first is the type of damages that are awarded under each respective claim. With worker's compensation, someone who was hurt on the job is entitled to compensation for medical care, plus a pre-determined portion of their wages during the time they are off work.

Under FELA, however, injured railroad workers face no such limitations. They may seek compensation for wage losses in the past, present and future, medical treatment, pain and suffering, and disability - any or all of these factors. And families of railroad workers killed on the job may pursue damages caused by the wrongful death. So FELA damage awards typically are higher than worker's compensation.

FELA Burden of Proof Higher than Worker's Compensation

The second difference between FELA and worker's compensation is the proof needed to recover for damages. Worker's compensation acts more like insurance. If you're hurt on the job, you'll receive a set amount in compensation. This is regardless of who is at fault.

Because FELA awards are generally much higher than worker's compensation, so too is the railroad worker's burden of proof. It is up to the employee to prove that the railroad company was negligent and, therefore, legally responsible for the injury.

FELA cases are heard in state or federal court, while worker's compensation hearings are held before administrative boards. With this higher standard of proof and formal judicial process, injured railroad workers typically seek representation by attorneys experienced with FELA claims.

Top Causes of Medical Errors During Child Delivery Examined

2012-04-23T13:35:03Z

The safe delivery of a baby is far from routine. It calls for coordination between a number of well-trained medical professionals, and preparation for complications during delivery must always be taken into account.

]]> Unfortunately, even with proper planning, errors do occur during childbirth, which can lead to long-term, even life-long medical challenges for the baby or the mother, or both. A routine delivery can quickly fall into a crisis and quick, accurate medical care is vital to prevent severe injury or death.

A study released last year examined the top risks in obstetrical care. CRICO Strategies, a conducted the study and reviewed 800 obstetrical medical malpractice cases from 2005 to 2009. The organization is a division of CRICO, the patient safety and medical malpractice insurance company owned by the Harvard medical community.

The study found that, among the medical malpractice cases it reviewed, the most common allegations of medical error were:

•· Delay in treating fetal distress

•· Improper performance of vaginal delivery

•· Improper management of the pregnancy

The authors point out in releasing their findings that errors in child birth are often the result of missteps or wrong decisions by several different professionals involved in the delivery. There's rarely one single act or failure to act that can be identified as the sole cause.

Clinical Judgment Error Most Common Child Delivery Mistake Cited

More specifically, the report broke down the major reasons for medical error during child birth. In the obstetrical medical malpractice cases reviewed, the study listed these top causes:

•· Errors in clinical judgment - cited in 77 percent of the cases

•· Miscommunication - cited in 36 percent of the cases

•· Technical error - cited in 26 percent of the cases

•· Administrative failure - cited in 23 percent of the cases

•· Ineffective supervision - cited in 15 percent of the cases

According to CRICO Strategies, one in 1,000 births involves a preventable injury or death.

Insufficient Approval Process May Lead to Defective Medical Devices

2012-04-02T20:03:03Z

Medical devices, designed to alleviate pain and improve health, are implanted into hundreds of thousands of patients each year. But are they safe?

]]> Consumer Reports recently conducted an investigation into the approval process for medical devices by the U.S. Food and Drug Administration. The investigation included a review of the FDA's medical research, and interviews with doctors and patients.

Concerns with Medical Devices

On its website, Consumer Reports outlined several concerns it has over the medical device approval process following its investigation:

•· Too often, medical devices aren't tested before they are used in patients

•· There's not a formal manner in which problems with medical devices are communicated to patients, researchers and physicians

•· Without changes in the current approval process, patients have little opportunity to protect themselves

Consumer Reports is not alone in its concern over defective medical devices. In 2011, the Institute of Medicine, an independent, nonprofit organization, raised its own issues over the approval process for medical devices. Congress passed the Food, Drug and Cosmetic Act in 1976. That law included a fast-track approval process for medical devices, known as the Pre-market Notification, or 501(k). The purpose of the law is to cut the red tape and speed up the time for low-risk medical devices to get to market. But since its passage, many high-risk devices - heart valves and hip implants, for example - have been inappropriately and dangerously approved under 501(k), according to the Institute of Medicine.

Consumer Reports and the Institute of Medicine have focused on the need to stop defective medical devices reaching the market. But inevitably some will, no matter what changes are made to the approval process.

Victims of defective medical devices and their families may pursue wrongful death lawsuits and product liability lawsuits against the manufacturer of the devices, just as they can with any defective consumer product, to obtain fair and just compensation for the losses.

Defective Home Appliances Pose Significant Fire Dangers

2012-03-19T13:27:14Z

Defective home appliances are a real danger to life and property. According to the U.S. Consumer Product Safety Commission, an independent federal regulatory agency, major appliances caused some 150,000 residential fires each year from 2006 through 2008, which resulted in 150 deaths and $547 million in property damage.

]]> Consumer Reports did its own study into home appliance fires. Reviewing federal fire data from 2002 through 2009 in single and multi-family homes, it found that half of reported appliance fires were caused by human mistakes or natural causes, such as storms and animals. But that means the remaining half were caused by defective products.

Home Appliance Fire Statistics

Here is a breakdown of some the Consumer Reports findings:

•· In the past five years, more than 15 million appliance units have been recalled for defects that could cause a fire. Almost half of those were dishwashers.

•· About four out of every five of these recalls were of products made outside of the United States. That majority came from China.

•· In the period between 2002 and 2009, appliances were the primary cause in more than 69,000 home fires. This number is smaller than the Consumer Product Safety Commission's because the Commission's total includes hotels, dorms and other structures.

•· Of those 69,000 appliance-caused fires in single and multi-family dwellings, a little over 35,000 were due to defective products, caused by manufacturing, design or mechanical problems, or a combination thereof.

•· Between 2002 and 2009, fires attributed to clothes dryers resulted in $84 million in property damage alone.

Product Liability Lawsuits

Manufacturers and sellers of any and all products - be they automobiles, medical devices or pharmaceuticals - have the responsibility to make sure their products are safe. If their product does cause fatalities, catastrophic injury and/or property damage, then manufacturers and sellers can be held legally liable to compensate for those damages.

To help protect yourself from defective products, Consumer Reports suggests you register new appliances so you can be notified if it is recalled. You can also check for product recalls at saferproducts.gov.

Recent Steps Taken to Reduce Helicopter Accidents

2012-03-12T20:01:30Z

Helicopter accidents occur more frequently than most type of aviation accident. Flying a helicopter, whether for private, commercial or military purposes, has its own unique challenges, including the fact that helicopters tend to fly close to the ground and in congested areas that offer a range of obstacles, both man-made and natural.

]]> Most helicopter accidents are caused by one of three factors:

•· Pilot error

•· Mechanical malfunction

•· Electrical malfunction

In 2005, the International Helicopter Safety Team was formed in response to a growing rate of worldwide helicopter crashes. Created by helicopter manufacturers and operators, and various government aviation regulators, the organization announced in 2006 a concentrated effort to reduce helicopter accidents 80 percent by 2016.

Air Ambulance, Medical Evacuation Helicopter Operations are at Heightened Risk

Of particular concern is the operation of air ambulances - helicopters used for emergency medical services. The helicopter air ambulance industry grew by 54 percent between 2003 and 2008, and the National Transportation Safety Board estimates that 400,000 patients and transplant organs are flown by helicopter each year.

Medical evacuation helicopters can face especially daunting conditions, since they're responding to an emergency situation and frequently using unplanned routes. The need for fast action, often in dangerous landing and take-off areas, heightens the risk for air ambulance crews, patients and passengers.

According to a 2009 study by Ira Blumen, program director of the University of Chicago Aeromedical Network, air ambulance crew member is one of the nation's most dangerous professions, with a higher on-the-job death rate than steelworkers, loggers, and deep sea fishermen.

New Rules to Help Avoid Helicopter Crashes

In October 2010, the Federal Aviation Administration (FAA) proposed new rules for all commercial helicopter operators, but several were targeted specifically to the air ambulance industry, including:

•· Additional on-board safety equipment to avoid terrain and obstacles

•· More formalized flight rules and dispatching procedures

•· Improved communications and pilot training

•· Installation of flight date recording devices

The period for public comment on the new rules ended in January 2011, and the final set of rules are expected to be released in July of this year.

Consumers Should Read Contracts Carefully To Help Avoid Fraud and Deception

2012-03-06T21:54:11Z

The February edition of SmartMoney magazine included an eye-opening article about fine print and U.S. consumers entitled "Attack of the 6.5-point Typeface." The article raises a lot of interesting points from the growing length of consumer contracts, agreements, warnings and disclaimers. Among the important takeaways from the article:

]]> •· A lot of consumer documents are intentionally designed to mislead or hide important information;

•· Many consumers do not fully read these materials when purchasing products or services;

•· Not reading these documents carefully can impact your legal rights. According to consumer protection group Public Citizen - at least 75% of companies in seven major industries include mandatory binding-arbitration provisions in their contracts; and

•· These documents are costing Americans a lot of money. According to estimates cited in the article, hidden fees, exclusions and waivers cost Americans a total of $250 billion annually.

So what should a consumer do? First, read all of the documents related to any purchase carefully. We realize this can be a daunting task considering the massive amount of material often presented at the point of transaction with little time for review. You may be surprised what you find.

Second, beware of companies claiming that a fee or exclusion is allowed under their contract and pointing to some vaguely worded fine print. If you believe you are being charged a deceptive, inappropriate or unfair fee or have been told you've waived recovery for a wrong, contact an attorney to review your case. Gray, Ritter & Graham has extensive experience in consumer protection matters. For example, we have recently been involved in a number of cases against banks for their deceptive and unfair practices of re-ordering debit card transactions in order to increase overdraft fees - actions that the banks have claimed were perfectly legal under their checking account disclosures.

Medical Misdiagnosis is a Common Occurrence

2012-02-20T16:31:42Z

According to a nationwide survey of medical professionals, patient misdiagnosis happens relatively frequently. QuantiaMD, the largest mobile and online physician community, last year surveyed 6,400 medical providers, and 47 percent of those said they encounter diagnosis errors at least monthly; 3 percent said they see such errors most days

]]> A majority - 64% - said that up to 10 percent of the misdiagnoses they saw resulted in patient harm. And almost all of the respondents (96 percent) said they believe diagnostic errors are preventable, at least some of the time. The errors included missed, late, or wrong diagnoses.

According to the survey, pulmonary embolism is the one condition at greatest risk for diagnostic error, followed by bipolar disorder, appendicitis and breast cancer. (A separate study from 2006 found that that more than half of patients diagnosed with chronic obstructive pulmonary disease - the nation's fourth leading cause of death and second cause of disability - had previously been misdiagnosed with asthma, leading to improper treatments.)

Medical Diagnosis: Art or Science?

Interestingly, almost three-fourths of the QuantiaMD respondents said that diagnosis is equal parts art and science, while 14% said that it was more science and 12% said it was more art. So pinpointing the reasons for diagnostic error can be difficult. Contributing factors to misdiagnosis include failure to consider other diagnoses, inadequate follow-up on test results, and failure to order appropriate tests.

With so many potential causes, proving diagnostic error can be complicated without the assistance of experienced medical and legal professionals.

The result of a misdiagnosis may not be immediately known, playing out over a long period of time. The misdiagnosed patient may be subjected to costly and lengthy additional treatment. Depending upon the patient's condition, delays caused by a misdiagnosis can lead to death, made more tragic in that it may have been avoidable.

Weather Conditions Make Walking Hazardous

2012-02-16T21:02:44Z

The recent snowfall and cold weather is a reminder that there is still a winter in
Missouri and Illinois. While it is nice to watch kids making snowmen, there are
hazards that accompany snow and ice. One of the most common is for a pedestrian to slip on ice.

]]> There are many studies which have looked into this problem. One found that there are as many 3.5 injuries per 1,000 people as the result of slipping on ice. Another found that during periods of heavy snow and ice, broken bones occur at nearly three times the normal rate. These types of injuries don't discriminate: women over fifty and men in their twenties suffered nearly the same rates of injury.

There are a number of ways to reduce injuries. First and foremost is to effectively clear the ice, snow and slush. Once cleared, salt or ice melt should be spread to prevent refreeze. Salt or even sand should also be used to provide traction for pedestrians. Pedestrians can consider wearing shoes that provide better slip resistance. Some people may want to consider wearing plenty of layers so that, in case they do fall, the padding will minimize the severity of the injuries.

Unfortunately, many people will get injured from slipping on snow and ice.
Sometimes, the fall is just the result of bad luck. But other times, the fall isn't the result of bad luck, it's the result of someone else's bad planning. This is often seen when a company fails to take proper precautions to keep its parking lot or sidewalk clear for its customers. Under Missouri and Illinois law, a company that fails to act responsibly in clearing snow and ice for its customers may be held responsible for the injuries they cause.

Class Action Lawsuits Used to Address Complex Consumer Fraud

2012-02-07T14:44:13Z

Consumer fraud can take many forms, but in general it involves false or misleading claims in the marketing or selling of a product or service. Simply, the product or service does not perform as advertised. Hidden fees, overcharging, and all sorts of other "scams" and "rip-offs" reported on the local news are examples of consumer fraud.

]]> Incidences of consumer fraud can be isolated, so that only a small number of individuals are hurt. But there are times when the issues of consumer fraud are complex, and the consequences substantial and widespread. It's this type of consumer fraud where class action litigation is employed to address the one common wrong suffered by the many.

Seek Compensation and End Fraudulent Practice

Those who've been a victim of fraud may want to seek legal counsel. While an individual's damages may be small, there may be a sizeable number of others who have suffered the same experience. In the right situation, a class action lawsuit is the most effective way for victims of consumer fraud to receive fair compensation, as well as stop the offending company from hurting others.

Birth Injury Litigation

2012-02-03T16:01:12Z

Among the most serious medical negligence cases are those involving allegations that a baby was not delivered in a timely manner. In that setting, the claim is that because the delivery did not occur in a timely manner, the baby experienced hypoxia, or lack of oxygen, and suffered brain injury.

]]> During labor, in most situations, the mother and baby are both monitored with what is known as a fetal monitor strip. The baby's heart rate and the mother's contractions are both recorded in real time for review. Abnormalities or concerns with the baby's heart rate and/or with the mother's contractions are indicative of a potential problem with the baby and need to be watched closely.

The force of a contraction is known to stress the baby, in most cases without harm to the baby. However, if the baby's heart rate shows an unfavorable reaction or inability to handle the stress of that minor force, it may mean that the baby is not adequately oxygenated and needs to be delivered before suffering further permanent brain injury from lack of oxygen or "hypoxia."

Terms such as late deceleration, early deceleration, and/or variable deceleration describe the relationship of the baby's heart rate to the timing of the contraction. Those findings need to be carefully watched by the delivering team, and if necessary, a decision can be made to deliver the baby by Cesarean section to eliminate further stress on the baby.

Lead Poisoning Thresholds in Children May Be Lowered

2012-01-24T14:23:42Z

On January 5, the Advisory Committee on Childhood Lead Poisoning Prevention, a federal panel, voted to recommend that the Centers for Disease Control and Prevention lower its threshold for lead poisoning in children, from 10 micrograms of lead per deciliter of blood to 5 micrograms.

Lead can harm a child's brain, kidneys and other organs. It has been shown that even low levels in the blood can lower IQ, impair hearing, and cause behavioral problems. High levels in the blood can cause death. Children under 6 years old are especially at risk for lead poisoning as they are growing and developing so rapidly at that age.

]]> More St. Louis Children May Have Elevated Lead Levels

According to the St. Louis Post-Dispatch, the rate of kids with elevated levels of lead, a high risk area, will go from 3 percent to 15 percent if this recommendation is adopted.

Contamination from lead can be caused by many sources, including peeling paint in older homes, batteries, toys, gasoline, and contaminated soil from mining waste. Gray, Ritter & Graham currently represents people in Herculaneum, Missouri, who live near the Doe Run Co. lead smelter and have been harmed by lead emissions from the plant. Children there have been shown to have elevated lead levels in their blood.

Steps to Prevent Lead Poisoning

To avoid potential lead contamination from the soil, parents should plant grass on areas of bare soil or cover the soil other ways, including mulch or wood chips. Until the bare soil is covered, parents should move play areas away from bare soil.

Parents should also keep their young children away from any peeling household paint, and make sure they regularly wash their hands after playing with toys.

New Federal Law Requiring Recall Notification for Defective Infant and Toddler Products

2012-01-20T14:42:34Z

Each year millions of children's products are recalled because of safety defects. A new federal law now requires companies that make "durable infant and toddler products" include a postage-paid post card, with every crib, play pen, stroller, and many other kinds of baby products they sell that are made after June 2010, to help recall notifications become more effective.

Defective Products Recall Notification

Parents fill in their contact information and mail the card. They can also go the manufacturer's website and register online. If there's ever a recall, the company can notify them directly. Companies can only use the information from this registration process to send out recall notifications, not for any other purpose, such as marketing.

]]> The notification law is named after Danny Keyser, a 16-month-old toddler who died at a daycare in a defective portable crib. The crib was donated to the daycare center but had been recalled five years earlier. Neither the donor nor the daycare knew about the recall.

Unfortunately, a survey by the Consumer Federation of America found 61 percent of adults with children under twelve did not know this new notification system exists.

Types of Product Defects

The new law does not require consumers to register for the recall notification, although it may be prudent to do so. However, a recall does not necessarily insulate the manufacturer and/or seller of a defective product from liability for the injuries and deaths the product causes.

If you or a loved one has been injured by a defective product - regardless of whether or not it has been recalled - you may pursue legal remedies for financial compensation. Keep in mind that courts have held that there are three kinds of product defects:

Design defects - something wrong with the product's design that makes it unsafe
Manufacturing Defects - a problem in the manufacturing process that made the product unsafe
Defects in warnings or instructions - lack of appropriate warnings of the product's known risks

A thorough investigation conducted on your behalf may be required to determine if any of these standards have been met and the validity of your legal claim.

Class Action Lawsuits: Why and When to File One

2012-01-04T14:43:15Z

Class action lawsuits enable large groups of people, who were all harmed by the same conduct, to bring a single action against the wrongdoer. Class actions are particularly useful when the amount of damages to a single person is not high enough to justify the filing of an individual lawsuit. For example, a bank customer may be harmed when the bank reorders his or her debit transactions to maximize the number of overdraft fees the bank can charge. If the bank's reordering caused the customer to incur two overdraft fees instead of one, the customer's damages would be the amount of one overdraft fee, which is usually around $30, depending on the bank. It would not make economic sense to file a lawsuit over $30, but if you group together all of the bank customers who were charged an additional overdraft fee, the total damages at issue is much larger and a lawsuit is more economically viable.

]]> In a class action, a single person or a small group of people called the class representative(s), acting on behalf of the larger group of all persons harmed, files a class action petition against the defendant or defendants who caused the harm. However, merely filing a class action petition does not automatically mean that the court will allow the case to proceed as a class action. Before allowing the case to proceed as a class action, the court must certify the proposed class. In Missouri, there are four prerequisites that must be met in order for a class to be certified, as set forth in Missouri Rule 52.08(a):

The class must be numerous, or have so many people that it would not be practical to join them all in a single lawsuit.
There must be common questions of law or fact amongst the class members.
The class representatives' claims or defenses must be typical of those of the class members.
The class representatives must fairly and adequately protect the interests of the class.

One of the more misunderstood prerequisites is the second, requiring common questions of law or fact amongst the class members. Sometimes referred to as "commonality," this prerequisite requires that there be a significant factual or legal issue that affects all of the class members. Thus, commonality would be lacking where there are multiple people who were all harmed by the same person, but who were all harmed in different ways. The bank overdraft fees class action described above provides a good example of commonality. In an overdraft class action, all of the class members have been charged overdraft fees as a result of the bank's reordering of debit transactions. They were all harmed by the bank in the same way and each of the individuals' claims involves the same facts and the same legal issues.

If you have been harmed and think that there are others that have similarly been harmed, consider the four prerequisites listed above, including the commonality requirement. If you think there are others with your same legal and factual issues, it may be worthwhile to speak to an attorney about a possible class action lawsuit, even if your individual damages are relatively small.

Importance of Warnings on Dangerous Products

2011-12-21T15:27:04Z

Quick, pick up a can of hair spray in your bathroom cabinet. Or, pull that aluminum ladder out of your garage. What you will quickly note is that these items have written, explicit warnings - in the case of the ladder, probably many warnings.

Shockingly, this same abundance of warnings often is absent from the workplace. Large industrial machines capable of causing much greater injuries than hair spray often are completely devoid of warnings.

Manufacturers of such industrial equipment have a duty to design it in such a way that it is not unreasonably dangerous. If there are hazards in a machine that cannot be designed out of it without destroying its utility, the manufacturer has a duty to give clear, effective warnings. Many manufacturers blindly assume about industrial workers, "everyone knows the hazard." Often, hazards that are well known by a manufacturer may be much less appreciated by an hourly worker charged with operating a dangerous piece of equipment.

]]> Further, even if a worker knows of a danger, he or she may forget about it in the course of a long, stressful, physically demanding workday. Because of this, warnings - clearly posted on the machine and in any associated manuals - are essential. This is also good business: a well-informed, safe workforce makes for more productive industry.

A manufacturer of a piece of equipment that is dangerous because it lacks proper warnings is strictly liable in Missouri if a person is injured. This means that a worker does not have to prove that the manufacturer did something negligent or careless. It is the dangerous nature of the product itself that renders the manufacturer liable. Furthermore, anyone in the distribution chain may be liable, including wholesalers and retailers. This is an important aspect of Missouri law, as the manufacturer is often an overseas corporation that is hard to sue, or a company that has been sold or dissolved years before the worker is injured.

Strict liability for inadequate warnings has been an important part of Missouri law for decades. In many ways, the law helps level the playing field, so that an hourly worker with horrible injuries can challenge a large international manufacturer in a court of law. Society is well-served by requiring manufacturers that earn a profit from a product to pay for injuries caused by the product's dangers.