Boston Personal Injury Lawyer Blog

Today, as you probably know, was "No Phone Zone" pledge day, a day when Oprah Winfrey dedicated her show to the dangers of using a cell phone while driving and urged Americans to pledge not to use their cell phones in their cars.

The day prior to Oprah's "No Phone Zone" day, Michigan became the twenty-fourth state to ban texting while driving.

In 2008, nearly 6,000 Americans died as a result of distracted driving and more than 500,000 were injured in accidents caused by distracted driving. Studies show that using a cell phone while driving impairs your driving as much as having a few drinks and increases your risk of causing a car accident by more than 500 percent.

Will more than half the states adopting texting bans before Massachusetts gets around to it?

For a vivid illustration of how texting while driving can cause an accident, watch this illuminating (slight profanely) video of Meredith Viera from the Today Show in a driving simulator:

Continue reading "Massachusetts Lags While Movement To Curb Texting While Driving Gains Steam" »

Antilock brakes have become standard on cars, but motorcycles still lag behind in adopting them. Harley-Davidson, for example, only began offering them as an option in 2008, so most bikes out there are unequipped.

Many motorcyclists think they simply don't need antilock brakes.

Now, however, comes a new Insurance Institute For Highway Safety study that shows motorcycles equipped with antilock brakes are thirty-seven percent less likely to be involved in a fatal accident. If it reduces your risk of dying by more than one-third, I'd say it's worth springing for the option package.

Continue reading "Why Your Next Motorcycle Should Have Anti-Lock Brakes" »

A little over a week ago, the CDC announced that 2009 saw a decline in reported cases of E. coli O157 poisoning. E. coli O157:H7 is one of the strains of E. coli that is most toxic to humans and can cause one of the severest forms of food poisoning.

Lest the news lead us to become complacent about food safety, the CDC's announcement essentially coincided with the announcement of the Pulitzer Prize committee that Michael Moss, a New York Times reporter, was awarded a Pulitzer for his investigative work in a story about the E. coli poisoning of Stephanie Smith, a 22-year old woman who became infected with E. coli through a hamburger patty.

The E. coli infection left Stephanie brain injured, unable to walk and with a serious kidney condition called Hemolytic Uremic Syndrome, that will necessitate multiple kidney transplants over the course of Stephanie's life.

If you think our government should be doing more to prevent tainted food, like the E. coli that poisoned Stephanie Smith, from making its way to our plates, there's good news for you: a bill, S. 510: FDA Food Safety Modernization Act, is currently pending in the Senate that would require more stringent food inspections. If you're a Massachusetts resident, call Senators Kerry and Brown and let them know you're in favor of safer food.

Continue reading "E. Coli Poisoning: Pulitzer Prizes, CDC Reports And New Legislation" »

• You probably saw the news a couple weeks ago that Boston Scientific's division Guidant, LLC agreed to plead guilty to two federal misdemeanor counts and pay a $296m fine in connection with its sale of defective heart devices. The backstory involves reprehensible conduct on the part of some executives: aware of the fact that these implanted defibrillators were short circuiting at the rate of one per month, Guidant decided not to warn doctors about the dangers and sold off its defective inventory, instead of recalling the product.

• Courtesy of Bob Kraft, I came across this American Association For Justice illustration, showing all of the safety features in modern automobiles that products liability lawyers are responsible for. It's a pretty astonishing list of features, but it shouldn't be too surprising. Since safety features aren't "sexy" features that sell cars, the implementation of most safety features has come, not via consumer demand, but by trial lawyers making a dent (no pun intended) in car maker's bottom lines and by government regulation.

• The Rhode Island Supreme Court rules that a lawsuit can proceed against the City of Newport for allegedly unsafe conditions on that city's famed Cliff Walk. The injury victim, a honeymooner, was paralyzed when he fell 28-feet off the Cliff Walk while walking with his new wife.

In a recent article in The New England Journal of Medicine, entitled "The Missing Voice of Patients in Drug-Safety Reporting," Dr. Ethan Basch argues that doctors, by discounting and ignoring patients' complaints about what they perceive as drug side effects may be ignoring data that could lead to earlier detection of dangerous drugs.

More than a few bloggers seem to have had this experience of having a doctor downplay their symptoms.

Doctors need to be more cognizant of the facts that their patients are intelligent people who know their own bodies and when they report a perceived side effect, they might be right, even if the side effect seems far-fetched. Heeding this lesson could reduce the incidence of medical malpractice and get dangerous drugs off the shelves more quickly.

CNN reports on the latest research studying the relation between Neurontin (gabapentin), Depakote and several other drugs and an increased risk of suicide, including the new Journal of the American Medical Association article on the subject.

For once, the tort reform blog Overlawyered.com admits that the costs of healthcare might be driven by doctors' incentives, rather than greedy medical malpractice lawyers, but, even in this moment of rare insight, Overlawyered can't resist a slap at the plaintiff's bar.

In this post, Walter Olson entertains the idea that some orthopedic surgeons might recommend spinal fusion surgeries whose cost approaches $100,000 because the procedures are so lucrative. However, Olson also claims that personal injury lawyers are in collusion with this phenomenon, by referring their clients to surgery-happy doctors.

I, for one, always let the real medical professionals recommend specialists like orthopedic surgeons. And most lawyers are no different.

Scoring this one is difficult. I'd award Olson a point for taking off the ideological blinders and acknowledging, even indirectly, that doctors are not always blameless. However, I have to deduct half a point for the ending of the blog post, with Olson's attribution of sinister motives to personal injury lawyers.

That means Olson finishes with half a point. The Manhattan Institute is coming up!

PS - Can anyone send me the Journal of the American Medical Association article that Olson references? I was unable to find it.

Continue reading "Back Surgeries Overprescribed? " »

I've previously blogged about the prospect of football helmet manufacturers facing product liability lawsuits for design defects in their helmets and the resulting brain injuries that occur.

This week came news that former NFL lineman Ralph Wenzel has filed a Worker's Compensation claim that says head injuries he sustained in the course of his NFL career are responsible for his present-day dementia.

Of course, a Worker's Compensation claim for football head injuries is recourse that is only available to former professional football players, not to college or high school players who sustained brain injuries while playing for fun, rather than as part of their "job" or "work." But even though these Worker's Compensation claims are available only to the tiny fraction of football players who played professionally, the consequences could be enormous. The potential liability faced by the NFL in Worker's Compensation claims relating to head injuries could be $100 million or more. Liability of that scale is big enough to force even a multi-billion dollar empire like the NFL to consider its rules and regulations regarding concussions and other head injuries. Football fans might even see the three point stance abolished as a result!

Worker's Compensation pre-emption means that former pro football players cannot sue their former teams directly for brain injuries they sustained from their playing (they can however maintain product liability actions against the helmet manufacturers). High schools and colleges need to be alert to the prospect of this kind of litigation because their players are "students," not "workers," and Worker's Compensation laws do not prove a bar to suing them directly. High school and college programs could therefore face even greater liability than the NFL.

It is a startling realization, but legal liability for brain injuries might fundamentally alter the rules of football and transform it place in our culture.

My guess, however, is that the NFL lobbies the California legislature to change the law with regards to football players.

Continue reading "Football Head Injuries: A Follow-Up" »

In a regulatory letter issued yesterday, the FDA approved the use of new warning labels for Yaz birth control. The new warnings advise consumers of the potential risk of serious blood clots, including deep vein thrombosis, from the use of Yaz.

One study, published in a British medical journal last summer, indicated that women using Yaz have a 6.3 times greater chance of developing blood clots than women using other pills that contain levonorgestrel. Other studies, sponsored by Bayer, Yasmine's manufacturer, have not found such a correlation.

Continue reading "FDA Approves New Yaz Label Warnings" »

We trust doctors. When they recommend a course of treatment or a surgery to us, we think their opinion is a disinterested one, one that is based solely on medical science and that is completely divorced from any financial stake they may have in the outcome.

I've previously blogged about how this isn't always the case. When the Medicare reimbursement rate for a particular surgery falls, doctors perform fewer of those surgeries. I've blogged about how doctors might recommend a more costly procedure, even when it raises a patient's risk of cancer. I've blogged about how, when a businessman's mentality takes root in a medical community, it can double the cost of healthcare.

Now comes a new University of Michigan study showing that doctors with ownership interests in outpatient surgery centers perform twice as many surgeries as their colleagues without any financial stake in the surgery centers. One of the study's authors, Dr. John Hollingsworth, says, "To the extent that owners are motivated by profit, one potential explanation for our findings is that these physicians may be lowering their thresholds for treating patients with these common outpatient procedures."

Probably the only thing worse than being a victim of medical malpractice, is finding out you never really needed the operation in the first place.

The Globe and Herald report today on another alleged incident of nursing home abuse, this one involving the Elizabeth Seton Residence in Wellesley Hills.

The main allegations are that a male certified nursing assistant used his position to commit indecent assault and batteries upon vulnerable female patients.

Continue reading "Another Boston-Area Case Of Nursing Home Abuse" »

Sometime ago, I read a favorable review of a documentary called The Last Campaign. (I believe the review was by David Yas, the editor of Mass Lawyers Weekly, but I cannot be certain.)

The movie made its way into my Netflix queue and arrived in my mailbox this weekend. The movie depicts the 2004 re-election campaign of West Virginia Supreme Court justice Warren McGraw. In the election, McGraw, a populist opponent of big business, was defeated by his Republican opponent, the relatively unknown Brent Benjamin.

Despite being a popular incumbent, McGraw found himself the underdog when Don Blankenship, the CEO of Massey Coal, poured millions of dollars into the election to run ads against McGraw. McGraw suffered a defeat in the election and Massey Coal succeeded in installing a justice - Brent Benjamin - whom many alleged the company had bought - on the court, right before an appeal was heard in a $50 million lawsuit against it.

Over objections that he should recuse himself from the case because of a conflict of interest, Benjamin went on to cast the deciding vote in a West Virginia Supreme Court opinion that overturned the $50 million dollar verdict against Massey Coal.

The movie does not allude to it, since it was released in 2005, but the story has a post-script: Massey Coal's influence in the election of Justice Benjamin wound up before the United States Supreme Court in the case of Caperton v. A.T. Massey Coal Co. In that case, the Supreme Court held that the "probability of bias" by Justice Benjamin was so great that he should have recused himself and that, therefore, the decision by the West Virginia Supreme Court was invalid under the Due Process clause.

This week, a further post-script to The Last Campaign: the coal mine disaster in West Virginia occurred at a Massey-owned coal mine. Just another reason to be glad you live in Massachusetts.

I've previously blogged about the dangers of excessive radiation involved with medical imaging procedures, such as CT scans and x-rays, and the FDA's new program to reduce patients' unnecessary exposure to radiation.

Last week, as part of that FDA program, Dr. Julian Nicholas, a former FDA scientist, testified that he was forced out by his FDA bosses when he refused to approve General Electric's "virtual colonoscopy" procedure, a product that would use CT scans to test for colon cancer. Dr. Nelson refused to endorse GE's virtual colonoscopy because between 1.5 and 2 percent of all cancers are caused by radiation from CT scanning and Dr. Nicholas did not believe that the level of radiation exposure involved in CT colonoscopies was justified by increased detection or the less invasive nature of the procedure (compared to traditional colonoscopies). A patient receiving a single CT scan gets as much radiation from the CT scan as he would from 400 chest x-rays.

CT scans, nuclear medicine and fluoroscopy are only one-fourth of all medical imaging procedures in the US (x-rays are far more common), but these procedures expose patients to nearly 90 percent of the radiation they get from medical imaging. They are also, generally, more lucrative for hospitals than x-rays.

Continue reading "FDA Scientist Says He Was Forced Out Because He Would Not Approve Medical Imaging Procedure" »

Electric bicycles have long been popular in Europe and Asia but, a couple weeks ago on NPR's Science Friday With Ira Flatow, I learned about their growing popularity here in the United States. Industry experts in America predict there will shortly be one million electric bikes on the road here in the States.

An electric bicycle is essentially your typical bicycle (ideally a bicycle with a sturdy frame) that is equipped with an electric motor or battery. Pedaling the bicycle charges the battery. Cyclists can then allow the electric motor to completely power the bicycle or merely use it to get a little extra "oomph" when pedaling up steep inclines or when fatigued.

A typical electric motor, although small and noiseless, can power the bikes up to speeds of 30-40 mph on downhill runs.

Modification kits that turn a standard bicycle into an electric one cost only a few hundred dollars.

As you can see from the Youtube video, electric bikes are a lot of fun and are pretty much the ideal form of transportation for a long bicycle ride in, say, Napa Valley or on Cape Cod. But I think most personal injury lawyers considering the coming boom in electric bikes will have worries about rider safety.

One of the leading causes of motorcycle accidents is the low profile and low visibility of most bikes. Auto drivers too often don't see bikers and accidents are the result. This problem seems even more severe with electric bikes, since most electric bike motors are placed on a fairly standard bicycle frame.

In addition, electric bicyclists cruising around at 40 mph need better head protection than the typical bicycle helmet. Using a low-impact bicycle helmet when you're traveling at 40 mph risks serious head and brain injury. Electric bicyclists traveling at high speeds should be wearing motorcycle helmets.

Lastly, whenever a new product comes on the market, its manufacturers generally haven't worked through all the design flaws that they inevitably discover later.

But with conversion kits so cheap and the bikes so fun to modify, I suspect we'll be seeing a lot more of them here on the roads in Massachusetts shortly.

Continue reading "Electric Bicycles: Coming Soon To A Massachusetts Roadway Near You" »

Last week, I was breezing through some blog posts over at Concurring Opinions and I saw that law professor Lawrence Cunningham had posted a link to a new law review article that he had written. The post invited criticism of the article and its conclusions.

Since the article was on a topic of great interest to me - the intersection of personal injury law and economics - I took the time to read it and offer my criticisms and feedback here.

In the article, Professor Cunningham compares two approaches to personal injury law - the "traditional" approach taken by most judges and the so-called "law and economics" approach that attempts to apply the insights of economics to cases. The article compares these two different approaches - as embodied by Judge Richard A. Posner and Judge Cardozo (Posner an alive-and-kicking disciple of economics; Cardozo an influential early twentieth century judge).

The "traditional" approach to negligence, at least as described by Cunningham, is law not necessarily informed by the insights of economics. What Cunningham calls the "traditional" approach to the law of negligence is an "open-textured" approach, where juries' determinations of negligence draw upon social norms, ethics and personal experience.

The "traditional" approach to the law of negligence differs from the approach of the "law and economics" school, which is headed up Judge Posner and which strives to apply some of the insights of economics to the law. Instead of thinking about negligence in terms of abstract legal principles, someone like Judge Posner is likely to assess whether an action was negligent through a sort of cost-benefit analysis.

Ultimately, Cunningham finds the approach of Judge Posner and others in the "law and economics" school to be lacking for several reasons, including the lack of flexibility in a cost-benefit analysis, the difficulty of assigning dollar values to certain course of action and the failure of the economic approach to yield clear outcomes. Cunningham also takes the "law and economics" school to task for its neglect of people's personal experience and moral values.

As a practicing personal injury lawyer, I don't see things as black-and-white as a legal academic like Cunningham does. While I agree that an economic approach to the law is necessarily incomplete, I'm not such a big fan of the "traditional" approach either. The traditional approach can every bit as arid as cost-benefit analysis and can lead to jurors giving disproportionate attention to legal doctrines that were better-suited for other times and places. (I just finished trial lawyer Rick Friedman's book The Rules of the Road, which warns that plaintiffs always lose when they let defense lawyers frame negligence issues in terms of the (traditional) "reasonable person" standard). So far as I am concerned, an economic approach at least encourages juries to weigh things for themselves, instead of giving them some pre-assigned weight of legal importance. It frees them up to consider all aspects of social welfare and not just principles the law tells them are germane. And, I have had success in applying some of the principles of economics to personal injury actions.

Herewith, then, some criticisms of Cunningham's article:

• At times Cunningham attacks a straw man, when he assumes that an economic approach to the law requires that we believe that people behave as rational, computer-like value maximizers, as homo economicus. Cunningham argues that the merits of a cost-benefit approach are particularly suspect when we are dealing with "spontaneous decisions," and decisions that are made by drowsy, hungry and basically all-too-human people.

  
  In fact, however, it seems likely that economics can be stretched to be more forgiving of human fallibility. One of the most vital fields of economics right now is "behavioral economics." Behavioral economics does not assume that humans behave as super-rational value maximizers; instead it understands that we are subject to committing certain errors because of our limited cognitive faculties. The insights of behavioral economics have turned economists like Dan Ariely into best-selling authors. In fact, some legal scholars, like Cass Sunstein, are right now applying the insights of behavioral economics to "humanize" the field of regulatory law.

• Another shortcoming to Cunningham's analysis is that it does not credit the role that economics can play for us when resort to our moral intuitions or tradition fails. This week a federal judge invalidated a patent on a breast cancer gene, upsetting long-standing belief that such genes were patentable. Obviously, with this sort of legal question, it's difficult to draw upon traditional community standards for answers. It may also be difficult to rely on morals for guidance. I don't like the idea of someone owning a patent on a human gene, but if patents on genes are necessary to incentivize pharma companies to do the R&D on better treatments, they may be a necessary evil. I'd look to economists for guidance about whether such a patent actually encourages R&D that could lead to us finding a breast cancer cure, rather than basing my opinion on traditions and personal ethics. (To be fair to Cunningham, however, his article dealt with the impact of law and economics in tort law, and not its suitability for work in fields like antitrust law or intellectual property).

.....This post is getting pretty long, so if you'd like to read the rest, you can find it below the fold.......

Continue reading "The Law Of Negligence: Traditional And Economic Approaches " »