Fort Collins Personal Injury Lawyer

Rhode Island Reverses Lead Paint Verdict

Darin Schanker — Thu, 03 Jul 2008 15:05:19 GMT

On Tuesday, the Rhode Island Supreme Court reversed a historic verdict against three former paint manufacturers , whose lead-based paint was deemed a public nuisance by a jury in 2006. The three companies, Sherwin-Williams Co., NL Industries, Inc., and Millennium Holdings LLC, would have been forced to pay as much as $2.4 billion to hundreds and hundred of thousands of homes contaminated by the paint, whose lead can, at high levels of exposure, cause " mental retardation, kidney problems, seizures, coma, and death. Low levels of lead can cause behavior problems, learning disabilities, and diminished intelligence."

The 4-0 opinion, states that the defendants' motion to dismiss made early in the litigation, should have been granted because,

"the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children." Furthermore, the court pointed to the Rhode Island General Assembly's recognition of this lack of control on the defendants' part by placing "the burden on landlords and property owners to make their properties "lead safe."

The justices recognize the danger of lead-based paint, the damages it causes to those exposed, especially children, and the fact that "childhood lead poisoning is completely preventable." However, the court also rightly recognized that its power to act was limited by the law, and the law of public nuisance consists of three elements: causing 1) an unreasonable interference; 2) with a right common to the general public; 3) by a person or people with control over the instrumentality alleged to have created the nuisance when the damage occurred.

And the state did not establish those elements. It didn't allege that the defendants interfered with a public right, defined as "indivisible resources shared by the public at large," or that the defendants had control over the lead pigment when it caused harm to children. The public nuisance claim just didn't fit with the facts of the case.

While this result, removing a remedy for those were exposed or could be exposed to harmful lead-based paint, seems distasteful according to many of the reactions from the public , the Rhode Island Supreme Court, by joining appellate courts in Illinois, Missouri and New Jersey in rejecting the legally dubious public nuisance claim, made the correct legal decision. But was is the right moral decision?

Thomas Connell

Summer Intern 2008

J.D. Candidate 2010

University of Colorado

Originally posted at InjuryBoard by Darin Schanker

Medical Malpractice Crisis Myths(2)

Darin Schanker — Fri, 20 Jun 2008 04:00:00 GMT

The Center for American Progress has a series of short articles on medical malpractice, and it is worth giving a read. As the election shifts into overdrive, you can expect to hear a lot about this issue, since health care is sure to be central this cycle and the canard about a medical malpractice crisis is one that gets trotted out every year.

Proponents of damage caps on personal injury like to use the myth of a medical malpractice crisis as a hammer, talking about how frivolous lawsuits and "jackpot juries" are bloating healthcare costs nationwide. However, they tend to ignore a few crucial facts: first, that medical malpractice costs hover around 2% of all healthcare costs, and second, that the systems is quite skilled at sorting out truly frivolous claims.

But even that is missing the point.

The civil justice system generally, and medical malpractice specifically, is not about shifting money from one party to another; and one of the main things it is about is ensuring continuing care for those with medical needs. There is, all to frequently, no safety net for those who are injured. And if you were injured because of another, then nothing is more basic, more primal, more just then to ensure that the person who injured you does their level best to make you whole again. It is not for nothing that a former doctor and new lawyer framed the issue this way:

"When errors do occur, early and honest disclosure and offer of fair compensation should be the norm."

It is not about the money, it is about responsibility. Keeping that in mind is the secret to parsing talk about the medical malpractice "crisis." If the statement is not about how to care for injured people, if it instead talks about exploding costs, then you can bet it is a smoke screen. The first goal of everyone should be expanding protection to the injured, not to the bottom line.

Nathan T. Swanson

Summer Intern 2008

JD Candidate, 2009

University of Denver

Originally posted at InjuryBoard by Darin Schanker

Fire Damage Uncovers Asbestos

Linda Snyder — Wed, 14 May 2008 19:14:19 GMT

State health officials confirmed today, that the early Monday morning fire, which damaged 4 units in the Holly apartments in Boulder, has exposed asbestos in the building materials. Until further testing to check the air quality is completed, the residents who are mostly University of Colorado students will have to wait to retrieve their belongings.

Asbestos is a mineral fiber that has been used commonly in a variety of building construction materials for insulation and as a fire-retardant. EPA and CPSC have banned several asbestos products. Manufacturers have also voluntarily limited uses of asbestos. Today, asbestos is most commonly found in older homes, in pipe and furnace insulation materials, asbestos shingles, millboard, textured paints and other coating materials, and floor tiles.

Elevated concentrations of airborne asbestos can occur after asbestos-containing materials are disturbed by cutting, sanding or other remodeling activities. Improper attempts to remove these materials can release asbestos fibers into the air in homes, increasing asbestos levels and endangering people living in those homes.

Asbestos is impure magnesium silicate minerals in a fibrous form and has been linked to lung cancer and specifically mesothelioma, a rare, deadly cancer that attacks the linings of the lungs, abdomen and heart and is almost exclusively caused by exposure to asbestos.

Due to the long incubation period, symptoms which include shortness of breath, chest pain and severe cough, may not surface for 20 years or more. Thus, mesothelioma is often not diagnosed until the disease has progressed to an advanced state making treatment difficult and the chance of survival compromised.

The fire which is thought to have started in a juniper bush outside the building is under investigation.

Originally posted at InjuryBoard by Linda Snyder

Both Parties Agree - FDA Needs More Money

Linda Snyder — Wed, 16 Apr 2008 17:10:45 GMT

In a rare display of bipartisanship, both Republican and Democratic Senators agreed the Food and Drug Administration is under funded for next year. "To us, it's clear that they're seriously under funded," said Senator Herb Kohl at the Appropriations subcommittee hearing on Tuesday. Kolh, a democrat from Wisconsin, is the head of the Appropriations subcommittee which oversees the FDA's spending.

Senator Robert F. Bennett, Republican of Utah, the subcommittee's ranking minority member agreed with Kohl and pressed Dr. Andrew C. von Eschenbach, the food and drug commissioner, to say how much more money the FDA needed. Dr. von Eschenbach replied he would "welcome an opportunity to present a scenario of portfolio options" for financing. He also expressed doubt that the FDA could accommodate the 20 percent budget resolution passed by the Senate last month. That's an additional $375 million over the 2008 allocated budget which comes from taxpayer revenue as opposed to money that comes from user fees paid by drug and medical device companies.

Consider...

• A report by a panel of outside advisors released last year, asserts American lives were in danger because the FDA didn't have the money, staff or the scientific expertise to protect them.

• Last month, Dr. von Eschenbach says the FDA "may fail in its mission to protect and promote the health of every American" and that "peril exists."

• At the hearing on Tuesday, Dr. von Eschenbach reverses his stance and claims, "I believe we have been eminently successful up to this period of time." He continues, "We are the world's gold standard."

• Dr. von Eschenbach testified at the hearing, in response to the heparin controversy, the contamination of heparin whose active ingredient which had been imported from China was "apparently, we suspect, done by virtue of economic fraud," to enhance profit.

• After the hearing, Dr. von Eschenbach does an about face and says "he probably went too far" in his testimony. He claims the FDA does not have proof that the contamination was deliberate and fraudulent.

So, between a commissioner who flip-flops his position on an almost daily basis and an agency that is seemly run by the drug companies as the FDA approves drugs at the whim of drug companies as shown by the heparin debacle, the Vioxx tragedy, and Vytorin and Zetia half truths, we as consumers need to accept the fact the FDA as it exists today is not functioning in our best interests.

Originally posted at InjuryBoard by Linda Snyder

Top 10 Deadliest Drugs

Linda Snyder — Tue, 08 Apr 2008 16:31:29 GMT

In 1988, the AIDS activist group ACT UP staged a protest that led to a dramatic change in the US Food and Drug Adminstration (FDA) drug approval process. Previously, the drug approval process was slow, bureaucratic and unresponsive to patients who were desperately ill and might not live to see a drug approved. By 1995, the process became streamlined and dying patients with no other options were given early access to promising medications. Drugs that were granted "priority review" status saw the approval times drop from just under three years to as little as six months.

This makes perfects sense for terminal patients and for catastrophic diseases such as AIDS and cancer, however this streamlining process has allowed drugs to be approved before proper testing has been completed. Vioxx, which may have caused up to 100,000 heart attack and stroke related deaths, is a direct result of prioritizing speed over safety. And, studies have shown that drug makers are spending almost twice as much on marketing a drug than they are on research and development.

A dangerous by-product of this streamlined approval process is weaker standards. The arguments made for fatal diseases such as AIDS and cancer were then extrapolated to other less serious conditions. In 1999, Vioxx was approved under these diluted standards and only after millions of people have taken it was research made public showing that high doses of Vioxx increased the risk of heart attack by a factor of 5 compared to a similar painkiller, naproxen (Aleve).

So, what can you do to protect yourself? Be an informed consumer and research any drugs you are taking for any potential safety risks. Some drugs, like Darvon and Darvocet have been found to be no more effective than aspirin, and they may cause heart damage.

1. Oxycodone Prescription opiod painkiller 5548 deaths 1998 - 2005

2. Fentanyl Prescription opiod painkiller 3545 deaths 1998 - 2005

3. Clozapine Anitpsychotic 3277 deaths 1998 - 2005

4. Morphine Prescription opiod painkiller 1616 deaths 1998 - 2005

5. Acetaminophen Over-the-counter painkiller 1393 deaths 1998 - 2005

6. Methadone Prescription opiod painkiller 1258 deaths 1998 - 2005

7. Infliximab Immune-system modulating drug 1228 deaths 1998 - 2005

8. Interferon beta Immune-system modulating drug 1178 deaths 1998 - 2005

9. Risperidone Antipsychotic 1093 deaths 1998 - 2005

10. Etanercept Immune-system modulating drug 1034 deaths 1998 - 2005

Originally posted at InjuryBoard by Linda Snyder

Free Drug Samples Lead to Higher Out of Pocket Expenses

Linda Snyder — Tue, 25 Mar 2008 20:50:45 GMT

According to a University of Chicago, patients who are given free samples spend nearly 40 percent more on their medications. My first thought was how could that be possible?

You're saving the cost of the medication and the cost of driving to the pharmacy. Common sense says if you're getting something for free it's saving you money, right?

A new study, published in Medical Care this week, questions the practice of pharmaceutical companies doling out over $18 billion dollars of free samples a year. A practice the drug company reps describe as a cost-saving safety net for the poor. This study follows a January report that showed that the free samples are more likely to go to insured and financially secure patients instead of to the needy.

In the Chicago study, patients who did not receive free samples spent an estimated $178 out-of-pocket on prescription drugs over six months. By comparison, patients given free samples spent about $166 of their own money during the six months before they got the samples -- but then $244 during the six months they received the samples and $212 in the six months after that, researchers found.

So, why would your out of pocket costs go up? Free samples allow patients to try new medications, including those without insurance coverage.

One thought is that patients who received the free samples are sicker than those who did not. However, the study indicated that illness was not a factor.

Another more compelling reason could be; it's a brilliant marketing move. Many of the patients, who take the free samples, continue to use that higher priced brand, not knowing that a generic may be available. If you consider that two out of every three drugs prescribed is generic, it makes perfect sense for a drug company to give away their product for free taking a chance that the patient will develop some loyalty to that product and continue to use it even when they have to pay for it.

"This builds on a growing body of literature that shows that samples are not aimed to help the uninsured and the poor, but to increase the sales of the branded drugs," said Dr. William Shrank, an instructor at Harvard Medical School.

So it seems, free drug samples will cost more in the long run if you're not careful.

Originally posted at InjuryBoard by Linda Snyder

Botox Linked to 16 Deaths

Linda Snyder — Wed, 12 Mar 2008 10:49:09 GMT

Botox and Myobloc have been associated with 16 deaths, four of them in children, and with 180 adverse effects that occurred after the drug spread to vital organs, according to Public Citizen, a health advocacy group.

The drug, a neurotoxin that is used to relax muscles, should come with a far stronger warning label and patients should be given a letter detailing its risks, the group said in a petition filed Thursday with the Food and Drug Administration.

The drugs' manufacturers and others have reported to the F.D.A. 658 cases of problems associated with Botox and Myobloc, Public Citizen said. The serious adverse effects include muscle weakness, dysphagia (difficulty swallowing), and aspiration pneumonia, the latter sometimes resulting in death.

Executives at Allergan, the maker of Botox, issued a statement saying that adverse reactions were rare and because many patients who get the drug are seriously ill, it is not proved that Botox caused the reactions. My understanding is Public Citizen is requesting a stronger warning label, not a recall. So, I find it interesting that Allergan is taking such a defensive stance on this issue. I would think if there's the potential to improve public safety for one of your products, as a good corporate citizen, you'd jump on it.

What about Botox that is administered at a spa? The most commonly known use of Botox is as a cosmetic procedure to reduce wrinkles usually between the eyebrows or around the eyes. Often, your injection is given by a nurse and there isn't even a doctor on the premises. Do these consumers know of the possible side effects? There has been at least one death associated with cosmetic usage. The dosage for wrinkle treatment is much lower than the dosage used for treating cervical dystonia, a painful knotting of neck muscles to relieve debilitating pain. So, theoretically, the risk to cosmetic users is relatively low. However, as an educated consumer, wouldn't you like to know what the possible side effects are before your treatment?

The deaths might have been prevented had patients been adequately warned of the possible dangers, said Dr. Sidney M. Wolfe, director of Public Citizen's health research group. The labels for Botox and Myobloc mention the issue but not prominently enough, Dr. Wolfe said.

"Nobody should die from the medical use of Botox," Dr. Wolfe said. "The fact that they are shows that patients don't have a clue about these problems."

I don't think it's too much to ask that as a consumer, I know what risks are associated with using Botox.

Originally posted at InjuryBoard by Linda Snyder

A Friend in Need of a Kidney Transplant

Linda Snyder — Mon, 25 Feb 2008 17:49:10 GMT

Imagine the hope and excitement of graduating from high school and looking forward to the next, both exhilarating and terrifying chapter of your life as you head for college to pursue career of your dreams.

Imagine the devastation as you learn you have a serious, life threatening condition that will put those dreams on hold.

This is Kelsey Crider's story. A lovely young woman from Boulder, Colorado, Kelsey Crider's future looked bright as she was headed for Ft. Lewis College in Durango, Colorado. Two weeks after graduation, Kelsey had some routine blood work done to ensure she was healthy for college. Her tests came back indicating she was anemic and her hematocrit was low. More tests revealed that Kelsey had Medullary Cystic Kidney Disease, a hereditary disorder in which cysts develop deep within the kidneys and eventually loses their ability to function. At this point, Kelsey's kidney was only functioning at 12%. She was suffering from kidney failure and needed a kidney transplant.

Although Kelsey's father was a match and the transplant went perfectly, Kelsey's body rejected her new kidney even after a heroic fight and a lengthy hospital stay . She is now on dialysis 3 days a week at four hours each session. Throughout her ordeal Kelsey has persevered with a smile on her face and positive attitude.

Her dream of attending college to become a photographer has been put on hold as Kelsey focuses on recovering from her surgeries and massive doses of anti-rejection medication. Her doctor has advised that her body needs to rest and heal before they attempt another surgery. In the meantime, we want to find her another donor.

Whether you consider becoming a living kidney donor or can pass this story on to your contacts, let's do what we can help this family and give this young lady a chance to reach her dreams.

To learn more, please contact Steve Crider at rockymtngatr@yahoo.com or call 303.530.2929.

Originally posted at InjuryBoard by Linda Snyder

Two Snowmobilers Found in Summit County, Third Found Dead

Staff Writer — Wed, 30 Jan 2008 10:28:04 GMT

Two of the three snowmobilers who were lost in Summit County since Sunday, January 27th, were found on Tuesday night. The third snowmobiler, John McKibben, was found dead.

The National Guard Black Hawk helicopter crew spotted the snowmobilers by a campfire. The two survivors were found on the west side of Elliott Ridge. McKibben was said to have died on Monday night.

For more information on this subject, please refer to the section on Winter Safety.

Originally posted at InjuryBoard by Staff Writer

Deer-related Car Accident in Nebraska Kills Two Children

Staff Writer — Tue, 29 Jan 2008 10:35:32 GMT

On Sunday night, January 27th, 14-year-old Michael Betts and 4-year-old Cora Betts were killed after the driver of their minivan, 37-year-old Michael Betts Jr., lost control of the car after trying to avoid hitting several deer that ran across the road.

The accident happened on Interstate 80 in Odessa, Nebraska. The driver tried to avoid hitting the deer, however ended up hitting one and the minivan was hit from behind by a truck pulling a car trailer. As a result, the minivan rolled and ended in a ditch.

The two children were killed and four other family members in the minivan were taken to a local hospital in Kearney, Nebraska. The driver of the truck was uninjured.

According to the State Patrol, everyone appeared to be wearing seatbelts.

Only 2% of deer-car collisions result in human fatalities while around 85% of deer-motorcycle collisions involve human fatalities. According to wildlife statistics, almost half of all wildlife-related car accidents are a result of the driver swerving to avoid an animal crossing the road.

Originally posted at InjuryBoard by Staff Writer