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Jury Awards $3.7M in Surgical Malpractice

A recent jury verdict in a surgical malpractice case is making headlines for its size. The $3.7 million award was handed down to a plaintiff who suffered from a surgical complication after a procedure to install an abscess drain.

Apparently, during the surgery, a bile duct was clamped shut, but was not noticed for days. The plaintiff was discharged after the surgery, then promptly complained of pain, fever, and the fact that the abscess drain didn?t seem to be working. Despite his complaints, it took two days before the surgeon recommended he get an emergency surgery to correct the mistake. Years later, his case went to trial and he won big.

Big Verdicts Result From Big Injuries

While many people will look at the big monetary award and wonder if the plaintiff should receive such a large sum, it is often overlooked that large verdicts correspond to large injuries, which don?t always correspond to big accidents.�

Sure, in a short summary or report about any given case with a big verdict, it might seem like there isn?t much to it, but big verdicts that are not supported by actual monetary losses and significant pain and suffering are exceedingly rare. In the surgical malpractice case discussed above, the plaintiff had to undergo a second surgery, and suffered permanent damage to other organs. One often overlooked cost to injury plaintiffs is the cost of future medical care.

What is Surgical Malpractice?

Not all complications or mistakes made during surgery rise to the level of surgical malpractice. Simply put, surgery is surgery. There are inherent risks, things can go wrong, and only mistakes that are due to negligence, or failing to act in conformance with the standard of care (what other reasonable surgeons in the community would do) qualify for a malpractice claim.

Additionally, surgical and medical malpractice claims are often subject to specific rules under state law, including rules that govern how and when a case can be filed. It is a confusing area of the law and anyone that believes they have a medical or surgical malpractice claim should discuss their concerns with an experienced personal injury or medical malpractice attorney.�

Related Resources:

Find Personal Injury Lawyers in Your Area�(FindLaw’s Lawyer Directory)

Top 5 FAQs About Personal Injury Cases (FindLaw’s Injured)

7 Common Surgical Errors: When to Sue for Injuries (FindLaw’s Injured)

How Much Is a Plastic Surgery Lawsuit Worth? (FindLaw’s Injured)

The post Jury Awards $3.7M in Surgical Malpractice appeared first on Law Offices of Ainbinder & Pratt.

Jury Awards $3.7M in Surgical Malpractice

[murieldherbert]

Who to Sue After a Water Park Injury

With summer right around the corner, water parks are probably performing annual maintenance and inspections to make sure that their attractions are ready for the upcoming season.

However, no matter how much work water park owners do, the simple fact is that water parks can be really dangerous. Waterslides, wave pools, wet grounds, children running around, and alcohol, all make water parks particularly prone to accidents. And when people get injured, if it was the result of the water park?s negligence, the injured person may be able to sue to recover money for medical bills, lost wages, and pain and suffering.

But Who Do You Sue?

When it comes to filing a lawsuit for water park injury, one issue you might be confused by involves who you sue. If individual water park employees, or other water park guests, were involved, you may need to name those individuals in the lawsuit, as well as the owners and operators of the water park. It should also be noted that the owners may not be the same people or company as the operators.

Often theme parks may be owned by one company while being operated by another, and depending on the basis of your case, you may need to sue one or the other, or both.

Do I Have to Sue Another Guest?

If it was another guest that caused your injury, you may still be able to sue the park only, though you should certainly consult with an attorney before dismissing, or leaving out, any potentially involved party. Many jurisdictions require individuals to file all their related claims against different individuals in a single action.

Water Park Liability Waivers

Often, water parks and other theme parks will disclaim liability for injuries that result from the ordinary, and even negligent use or operation, of their facilities. However, not all liability waivers and disclaimers are enforceable. So even if you signed something, you may still want to consult with an attorney.

Related Resources:

Get in touch with a knowledgeable personal injury attorney in your area today (FindLaw?s Lawyer Directory)

Water Slide Injuries: Legal Liability Facts You Should Know (FindLaw’s Injured)

When to Sue for Theme Park Injuries (FindLaw’s Injured)

The post Who to Sue After a Water Park Injury appeared first on Law Offices of Ainbinder & Pratt.

Who to Sue After a Water Park Injury

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Chicago Student Dragged Down Stairs at School by Police, Files Lawsuit

A 16-year-old Chicago high school student has filed a civil rights lawsuit against the city’s police, alleging excessive force for tasing her multiple times, dragging her down a flight of stairs by her foot, pushing her down another flight stairs, hitting her, stomping her chest, and more, all while her father watched.

What?s more, this entire incident happened at the student?s high school and was captured on camera. According to reports, the student was removed from class for refusing to put away her cell phone. The police officers were supposed to escort her off school grounds, to her father, who was waiting at the entrance. The surveillance footage clearly shows officers grabbing her and basically throwing her down the stairs, then pouncing on her. Shockingly, after the incident, she was charged with 2 counts of aggravated assault on the officers (both counts were dropped).

Video Backing Up the Victim

Notably, the high school student maintained that the officer instigated the attack by grabbing her and throwing her down the stairs. While the officers reported she pushed them down the stairs, the student explained that she attempted to hold onto the officer?s clothing, after being thrown down the stairs initially. Then, she held onto the officer, while another officer pulled her down the second flight of stairs by her foot. Her father attempted to intervene, but was told to move back and complied, and watched the beating ensue.

While the videos don?t show what happened before the student was grabbed and thrown down the stairs, what the videos do show corroborate the student?s story. Notably, body cam footage has not been released.

Fighting Back Against Police

Generally, when a person is being arrested, or taken into police custody, fighting back or resisting will be grounds for serious criminal charges. In only very limited circumstances are individuals ever justified in fighting back, such as when the arrest is unlawful, or when officers are using excessive force. But these situations can be rather difficult to accurately assess, especially in the heat of the moment.

Related Resources:

Top 5 Legal FAQs About Resisting Arrest (FindLaw Blotter)

When is an Arrest a Legal Arrest? (FindLaw?s Learn About the Law)

If My Arrest Is Illegal, Can I Run? (FindLaw Blotter)

The post Chicago Student Dragged Down Stairs at School by Police, Files Lawsuit appeared first on Law Offices of Ainbinder & Pratt.

Chicago Student Dragged Down Stairs at School by Police, Files Lawsuit

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Bars Sued After Deadly Car Crash: What Is Dram Shop Liability?

Joey Lee Bailey drank at least two 22-ounce beers and three double White Russians at Roosters Wings in Georgetown, Kentucky last January. He then drank at least one more beer and four more double White Russians at Horseshoes Kentucky Grill & Saloon in Lexington that same night. Bailey then hopped on Interstate 75 with a blood alcohol content four times the legal limit, and headed in the wrong direction. Bailey’s vehicle collided with one carrying the Abbas family home from a Florida vacation, killing him and all five family members, including three children aged 14, 13, and 7.

Now, relatives of the Abbas family are suing Roosters and Horseshoes (along with Bailey’s estate), claiming the bars overserved Bailey and are liable for the accident. When are bars responsible for injuries caused by overserved patrons, and what are so-called “dram shop” laws?

Dram Laws and Limitations

Dram shop laws generally allow DUI victims or their families to sue alcohol vendors or retailers for monetary damages to compensate for injuries or wrongful death. Kentucky, however, has strict limits on bar and alcohol server liability. Declaring “the consumption of intoxicating beverages, rather than the serving, furnishing, or sale of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person,” Kentucky’s dram shop statute stipulates that the “intoxicated person shall be primarily liable” for any injuries they cause, unless “unless a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.”

It’s possible in this case that Roosters and Horseshoes staff knew Bailey was already intoxicated when they served him — WKYT reports that Lexington police already accused Horseshoes of overserving Bailey, and the bar and the city previously discussed proposed punishments.

Outside of Kentucky and this incident, however, how do dram shop laws work? Here are three frequently asked questions:

1. What Are Dram Shop Laws?

As noted above, dram shop laws can vary from state to state, and while some can create liability for alcohol servers, others, like Kentucky’s, can limit that liability or put most of the blame on the drinker. Normally, a plaintiff will need to prove that the bar furnished alcohol to the patron, that servers were (or should’ve been) aware the patron was intoxicated, the patron injured someone, and that the alcohol or intoxication played a role in the injuries.

2. When Are Bars Liable for Overserving Alcohol?

Obviously, it may be difficult to tell if a patron is intoxicated, and many bartenders are loath to cut someone off, especially if they are a regular. But many factors can come into play, such as how much contact the staff had with the patron during their visit and whether they knew the patron would be driving.

3. I Was Over-Served at a Bar, Can I Sue?

Most dram shop laws — Kentucky’s included — deal with injuries to third parties by an intoxicated person. But what if that intoxicated person is you, and you injure yourself? That could depend on where you live. New Jersey, for example, allows patrons to sue bars for over-serving, while New York expressly prohibits such lawsuits. And even if you’re allowed to sue, your own contributory negligence might limit how much you can win.

Any injury lawsuit is complex and depends on specific state laws and the circumstances of your case. For help with dram shop claims or any other injury matter, contact a local personal injury attorney for help.

Related Resources:

Find Personal Injury Lawyers Near You (FindLaw’s Lawyer Directory)

Dram Shop Lawsuit: 2 Staten Island Establishments Sued for 1 Crash (FindLaw’s Injured)

$3.9M Lawsuit Filed Against Bar and Driver for Hit and Run Death (FindLaw’s Injured)

Texas Bar Sued for Overserving Man Who Shot, Killed 8 People (FindLaw’s Injured)

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Bars Sued After Deadly Car Crash: What Is Dram Shop Liability?

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Which Cities, States Have the Most Distracted Drivers?

We all know distracted driving is a problem. Many of us are using “do not disturb” functions that can mute alerts when we’re on the road. Even if we’re not willing to completely give up our smart phones and watches while behind the wheel, we know that hands-free options are better. And states are passing more and more anti-distracted driving laws.

But the message isn’t getting through to everyone. And the residents of some states are worse offenders than others when it comes to distracted driving. Zendrive, a mobile driving analytics platform, just released a report analyzing data from 1.8 million drivers and 4.5 billion miles of road. So where were drivers the most distracted?

Eyes on the Road

Zendrive also surveyed 500 people for its annual Distracted Driving Snapshot, and found instances of distracted driving had become far more widespread and common than previously thought. The report indicated that 60 percent of drivers use their phones at least once during the day, and that at any given hour, 40 percent of drivers on the road are using their phones. And the smallest distraction can be catastrophic:

Overall, drivers use their phones for an average of 1-minute, 52-seconds of every hour behind the wheel. At 55 mph, this is like driving 1.2-miles blindfolded, or the length of 21 football fields. However, this stat also takes into account the drivers who don?t use their phones at all. When looking only at drivers who use their phones at least once, this average doubles, shooting up to 3-minutes, 40-seconds of every hour. At 55 mph, this is like 42 football fields blindfolded. Dangerous indeed!

State of Distraction

It turns out that drivers in Seattle, Portland, New York, Pittsburgh, and Chicago were the least distracted. Not surprising, since many of those cities have extensive public transit options. The bottom five cities on the list were Houston, Miami, Detroit, San Jose, and Los Angeles. The most distracted states?

Mississippi

Rhode Island

Louisiana

Oklahoma

Connecticut

According to the National Highway Traffic Safety Administration, 3,166 people we killed in distracted driving accidents in 2017 alone. But proving that distracted driving caused a crash can be difficult. If you’ve been injured in a car accident and think the person responsible was distracted while driving, talk to an experienced motor vehicle accident attorney about your legal options.

Related Resources:

Find Car Accident Lawyers Near You (FindLaw’s Lawyer Directory)

Top 10 Tips for Distracted Driving Awareness Month (FindLaw’s Injured)

Is Apple Liable for Distracted Driving Accidents? (FindLaw’s Injured)

Smartwatches and Distracted Driving Laws (FindLaw’s Injured)

The post Which Cities, States Have the Most Distracted Drivers? appeared first on Law Offices of Ainbinder & Pratt.

Which Cities, States Have the Most Distracted Drivers?

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Border Patrol Chase Injuries Are Skyrocketing — Will Lawsuits Follow?

According to a joint investigation by ProPublica and the Los Angeles Times, at least 22 people have died and another 250 have been injured and following a Border Patrol pursuit — in the last four years alone. It seems that an unfortunate side effect of the Trump administration’s current immigration policy (coupled with what the report describes as “the agency?s loose pursuit policies”) has been a drastic increase in Border Patrol chases, and subsequent accidents.

ProPublica found that agents during that span engaged in over 500 pursuits in border districts in Arizona, California, New Mexico, and Texas, and one out of three ended in a crash. So, can people injured in those crashes sue the government? Here’s a look at law enforcement liability generally, and who can be liable for police chase injuries.

Hot Pursuit

Unsurprisingly, the Border Patrol wasn’t forthcoming with details on chase and crash data. So reporters needed to piece together information from federal criminal complaints filed against suspected human smugglers. Those complaints have been increasing, as have the chases and subsequent injuries — up 42 percent over the last two years. According to the report, here’s how Border Patrol chases get started, and how they end up:

They initiate dangerous chases after noting that cars are carrying unrestrained children or are packed so far beyond capacity that the weight makes them ?ride low.? They catch up to find people screaming and banging from the insides of trunks … At speeds deemed by experts to be wildly unsafe, agents box in moving vehicles, puncture tires and employ tactics intended to spin cars off the road … Every nine days, on average, these chases end in a crash. One caused a fire that spread over more than 20 acres. Another injured a dozen bystanders and six immigrants, including a 6-year-old girl who wound up on life support.

Cold Light of the Law

So, can Border Patrol agents, or the agency itself, be held liable for crash injuries? Sadly, probably not. Law enforcement officials are often given broad governmental immunity in the discharge of their duties. Additionally, standard negligence claims require four elements:

Duty: A owed another a legal duty to use reasonable care under the circumstances;

Breach: That person breached that legal duty by acting or failing to act in a certain way;

Causation: It was this breach that actually caused the injuries; and

Damages: The injury is real and compensable.

And when it comes to police chases in particular, many courts have found that officers do not owe a duty of care to the suspects they are pursuing, much less that they’ve breached the duty during the pursuit. Some jurisdictions have found officers owe a duty of care to bystanders.

While it is possible that officers could be found liable for injuries if they violate an internal policy regarding pursuit, Pro Publica reports that the Border Patrol’s policy (unlike those of other law enforcement agencies) does not limit the kinds of offenses agents can use as justification for chases, and merely advises agents to pursue only when the “benefit of emergency driving outweighs the immediate danger.”

Suing the police in any instance can be a complicated process — different from the normal personal injury lawsuit — and requires the assistance of experienced attorneys. Contact one in your area today.

Related Resources:

Find Personal Injury Lawyers Near You (FindLaw’s Lawyer Directory)

What You Need to Know About Suing the Police (FindLaw’s Injured)

In a Chase, Are You Liable for a Crash? (FindLaw’s Injured)

What Can Police Do in a High-Speed Chase? (FindLaw Blotter)

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Border Patrol Chase Injuries Are Skyrocketing — Will Lawsuits Follow?

[murieldherbert]

U.S. Victim’s Family Sues Boeing for Ethiopian Plane Crash

The family of an American passenger on board the recent Boeing 737 Max passenger plane that crashed last month in Ethiopia has filed a lawsuit against the plane’s manufacturer.

The lawsuit alleges that Boeing was negligent on many different fronts, put profits ahead of safety, and should be held liable for the crash. The allegations explain that a few months before the Ethiopian crash, the same type of plane, being operated by Lion Air in Indonesia, suffered the same sort technical failure causing a similar fatal crash.

Boeing to Blame

The case against Boeing, in large part, also implicates the Federal Aviation Administration, as the agency approved the subject planes as safe. But the case lays the blame with Boeing, as it pushed the new 737 Max aircrafts to different airlines with a sales pitch that promised the new planes did not require retraining for pilots familiar with prior 737 aircrafts. Pilots were provided with a short iPad tutorial, which notably did not explain that the planes were equipped with an aggressive autopilot computer that is believed to be behind both the Ethiopian and Indonesian crashes.

The lawsuit pushes for punitive damages (damages meant to punish a defendant’s egregious behavior) because it is alleged that Boeing should have grounded all 737 Max planes after the Lion Air crash due to the faulty autopilot.

Autopilot Too Strong for Real Pilots

The autopilot computer on board the 737 Max is designed to work by automatically pushing the nose of an aircraft down if the plane begins to stall. It is designed to do so to protect against pilots pulling the nose up too high during an engine stall (presumably, a common pilot error). However, it is alleged that the autopilot’s automatic nose dip in the two recent crashes were so strong that the pilots could not correct it, causing the planes to crash. The complaint describes the event as the pilots being “engaged in a terrifying tug-of-war” with the autopilot.

Notably, the American passenger on board the Ethiopian Air flight was the niece of American politician and activist, Ralph Nader.

Related Resources:

Can You Get Kicked Off a Plane for Being ‘Pungent’? (FindLaw’s Injured)

Falling Carry-On Bag Leads to Injury, Airline Lawsuit (FindLaw’s Injured)

How to Sue an Airline Over Damage, Injury (FindLaw’s Injured)

The post U.S. Victim’s Family Sues Boeing for Ethiopian Plane Crash appeared first on Law Offices of Ainbinder & Pratt.

U.S. Victim’s Family Sues Boeing for Ethiopian Plane Crash

[murieldherbert]

Airline Sexual Assault on the Rise?

They’re not stories you hear often, but when you do, they sound horrific. JetBlue is being sued by two flight attendants who claim two pilots drugged both and raped one during a layover. The women claim the airline did nothing when they reported the assault and are suing for sex discrimination and civil rights violations, along with aggravated sexual abuse and assault and battery claims.

And while that particular incident could’ve happened in any workplace, it comes against a backdrop of increased sexual assault of passengers as well. So how do you stay safe?

Coworker Assault

“The allegations in the complaint are obviously very serious and what happened to these women is horrific,” Abe Melamed, attorney for the two flight attendants told The New York Times. “But the bigger concern is how JetBlue handled it and the fact that no corrective action was taken.” That inaction amounted to “allowing sex discrimination, gender discrimination and a hostile work environment,” according to the lawsuit.

The incident in question happened when the two women and a third female coworker were in San Juan, Puerto Rico on a layover after a flight from D.C. The trio encountered pilots Dan Watson and Eric Johnson at a beach near their hotel. Johnson offered a beer to one of the women, according to the lawsuit, and she shared it with the others. “The beer was laced with a drug,” the suit claims, “and after that point, the rest of the night became a blur.” One of the women, referred to as Jane Doe 1 in legal filings, said she remembered Johnson raping her and her coworker. The third woman, Jane Doe 2 in the lawsuit, avoided being assaulted herself only because she was sick and vomiting from the drug and Watson allegedly found it to be “a turnoff.”

JetBlue allegedly took no disciplinary action against Watson or Johnson, and one of the victims continues to see her attacker at work, according to their attorney.

Co-Passenger Assault

According to the FBI, in-flight sexual assaults climbed to 63 in 2017, up from 38 in 2014. (Although assaults dropped to 39 in 2018.) And one out of five flight attendants reported receiving complaints of passenger-on-passenger sexual assault while working on a flight.

The FBI suggests keeping the armrest down between you and your seatmates to discourage physical contact. And Laura Palumbo of the National Sexual Violence Resource Center recommends seeking flight attendant help immediately if someone is making you uncomfortable or invading your personal space. Additionally, Tammy Yard-McCracken, the owner of Personal Defense Industries, told the New York Times how escalating your responses can de-escalate a possible assault:

Ask the person to stop the intrusive behavior: “Can you please stop touching my leg?”

If it persists, escalate to a “command statement,” such as, “I need you to stop touching my leg.”

Failing that, use a “statement of consequences,” such as, “If you don?t stop touching my leg, I will call a flight attendant.”

Sadly, it’s not always possible to prevent sexual assault. If you’ve been the victim of an assault, contact an experienced injury attorney to discuss your options.

Related Resources:

Find Personal Injury Lawyers Near You (FindLaw’s Lawyer Directory)

How Do You Prove Assault in Civil Court? (FindLaw’s Injured)

Delta Sued for Passenger’s In-Flight Sexual Assault (FindLaw’s Common Law)

Yes, It Is Illegal to Grope Sleeping Minors on Airplanes (FindLaw Blotter)

The post Airline Sexual Assault on the Rise? appeared first on Law Offices of Ainbinder & Pratt.

Airline Sexual Assault on the Rise?

[murieldherbert]

COZY DOCTORS

The Center for Investigative Reporting recently published another revealing story on questionable workers’ comp claims handling at the Tesla factory in Fremont, California.

This April 2019 piece (see link below), by investigative journalist Will Evans, focuses on a cozy relationship between Tesla and Dr. Basil Besh, a prominent Bay Area orthopedic upper-extremity specialist. The article alleges that Besh, who apparently ran an occupational treatment facility in Fremont called Access Omnicare, catered to Tesla and interfered with treatment decisions by other doctors at the facility.

If the allegations are accurate, Besh was putting concerns of the employer (and his desire to continue getting referrals) over the best interests of the workers. Insider whistleblowers at the clinic are said to have spoken to the investigative journalist.

As the article notes:

“interviews with former clinic employees and internal clinic communications show how Tesla and Besh coordinated behind the scenes in an arrangement that financially benefited both the carmaker and the doctor, to the detriment of the injured.”

A quick disclosure: over the years Besh has occasionally treated some of my clients and my colleagues’ injured workers, but I have no personal relationship with him and can’t recall ever meeting him.

I’ve yet to see any formal response by Besh or Tesla on these particular allegations.

The bottom line of this story is all too familiar, though it comes in several flavors. Economic concerns driving workers’ comp treatment.

Sometimes the story is that employers  or insurers want to cut workers comp costs, and compliant doctors gather business by carrying out this agenda. And sometimes providers design treatment protocols based on their own financial interest rather than the best interest of the worker.

Whether one labels it provider greed, provider dishonesty, or provider fraud, it infects the system.

Here is the Center for Investigative Reporting report on Dr. Besh:

https://www.revealnews.org/article/how-tesla-and-its-doctor-made-sure-injured-employees-didnt-get-workers-comp/

Here is an article on the disciplinary problems of a doctor at Access Omnicare:

https://arstechnica.com/tech-policy/2018/12/doctor-once-hired-by-clinic-that-sees-tesla-workers-just-lost-his-license/

And here is an earlier investigative article that looked at the way Tesla was handling occupational injuries:

https://www.revealnews.org/article/inside-teslas-factory-a-medical-clinic-designed-to-ignore-injured-workers/

Julius Young

www.boxerlaw.com

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COZY DOCTORS

[murieldherbert]

REMEMBER IBR?

After the 2012 reforms most of the attention went to IMR and the huge volume of UR disputes that wound up on the doorstep of Maximus, the DWC’s IMR provider.

IBR, on the other hand, has gotten almost no attention.

One would have thought that there was little friction between payors and medical providers over bills.

The DWC has now produced a 2018 report that analyzes IMR from 2013 to 2017.

You can see the report here:

https://www.dir.ca.gov/dwc/IBR/Reports/IBR-Report-2013-2018.pdf

IBR applications peaked in late 2016 but fell substantially in 2017. By the 4th quarter of 2017 there were only 466 IBR applications filed.

When an IBR application was filed, the medical provider won 55% of those disputes (i.e. it was determined that additional reimbursement to the provider was warranted).

The report concludes that :

“Now in its sixth year, IBR continues to provide an effective process for resolving billing disputes for payment of medical and medical-legal services in the workers’compensation system.”

What is unknown is how many disputes exist between medical providers and claims administrators where the provider does not bother to seek IBR review. Perhaps some providers either don’t know about IBR or don’t want to be bothered.

Yet, unlike IMR, one would have to give IBR a positive report card.

Stay tuned.

Julius Young

www.boxerlaw.com

  The post REMEMBER IBR? appeared first on Law Offices of Ainbinder & Pratt.

REMEMBER IBR?

[murieldherbert]

L’AFFAIR BAKER

Most of California’s major newspapers have covered the controversy surrounding former DIR head Christine Baker and the report of the California State Auditor which I outlined in my last post (see some links to the newspaper coverage below).

According to a LA Times report, Governor Newsom’s office and new Insurance Commissioner Ricard0 Lara are not happy.

The LA Times indicated that “A Newsom spokesman declined Friday to say whether he would take action against Baker, but questioned her remaining on the Fraud Assessment Commission.”.

Further, the LA Times noted that:

“Although the fraud panel is appointed by the governor, it operates in the office of state Insurance Commissioner Ricardo Lara, who also voiced concerns through a spokesman about Baker staying in her post.

“While the commissioner does not make appointments to the Fraud Assessment Commission, given the seriousness of these allegations he has severe reservations about Ms. Baker’s capacity to continue service,” said Byron Tucker, a spokesman for Lara.”

How all of this is perceived by the political establishment and the Governor’s people may determine whether Baker is asked to leave the Fraud Assessment Commission.

And at the same time these issues are in play as a former DIR investigator, Socorro Tongco, has a pending State Personnel Board action and a wrongful termination lawsuit in Alameda County Superior Court.

It’s messy.

Frankly, some parts of the story would make good material for a novel.

Baker is pushing back with her side of the story. Readers can see it by clicking on the links at the bottom of this post. Several people have suggested to me that Baker is “playing to her base” in putting her statements on the record. Clearly she does not want to go lightly.

What I do find particularly interesting (putting aside the question of whether her her daughter’s performance has been mischaracterized, and that there was a cabal that wanted to take her down) is the allegation Baker seems to be making that she was a target because of her role as a workers’ comp reformer.

Nothing I have yet seen puts together anything credible on the point.

This blogger has no personal relationship or knowledge of the individuals at DIR who seem to have been involved in the events discussed by the State Auditor.

But if Baker is alleging that the auditor’s report is all “fake news” and some sort of grand conspiracy to take her down because of her involvement in various workers’ comp reforms, I think she owes the workers’ comp community more evidence and more explanation.

I have worked against Baker on some issues and with her on others (including being asked to participate in some of the meetings the led to the anti-fraud reforms). She is obviously a very capable individual and as I noted in my last blog, receives much gratitude from some in the employer and insurer community who like the results of the 2012 reforms.

I think it only  fair to publish her side of the story (see below).

But that can only take you so far.

If there was a grand conspiracy to take her down, where’s the beef?

Here is the Los Angeles Times article on the response to the allegations, titled “Gov. Newsom and others question continued state post for ex-administrator accused of nepotism”:

https://www.latimes.com/politics/la-pol-ca-fraud-commissioner-nepotism-20190329-story.html

The San Francisco Chronicle coverage written by business columnist Kathleen Pender can be seen here:

https://www.sfchronicle.com/business/networth/article/Major-California-labor-official-accused-of-13728257.php?cmpid=gsa-sfgate-result

The article in the Workers’ Comp Executive can be seen here:

https://www.wcexec.com/article/auditors-findings-in-dir-audit-challenged/

Here is the letter sent by Baker (“Christine Culbeaux”) to some of her supporters:

Baker(LetterTo Supporters)

And here is what Baker provided to the Workers’ Comp Executive:

Baker-Rebuttal(ToWCExecutive)

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

The post L’AFFAIR BAKER appeared first on Law Offices of Ainbinder & Pratt.

L’AFFAIR BAKER

[murieldherbert]

California Women’s Hospital Sued for Allegedly Filming 1,800 Patients

Sharp Grossmont Hospital in El Cajon, California claims it was investigating employee theft of anesthesia drugs. So it installed motion-activated cameras on drug carts in three operating rooms at the facility. The only problem? Those three rooms were part of the women’s health center, and the secret cameras recorded some 1,800 patients in various stages of undress, undergoing Cesarean births, hysterectomies, and sterilization and miscarriage procedures.

“At times, Defendants’ patients had their most sensitive genital areas visible,” according to a lawsuit filed against the hospital, and “patients’ faces were recorded, and the patients were identifiable.” And this isn’t the first suit involving the video surveillance at Sharp Grossmont.

Patient Safety or Patient Surveillance?

Eighty-one women filed the potential class action lawsuit, and hundreds more could join. “It’s universal shock from the patients, and disgust,” according to their attorney, Allison Goddard. “They don’t know how their videos might be used or who may have seen them because Sharp didn’t make sure that that would be taken care of.” The hospital is allegedly still in possession of thousands of videos.

Representatives from Sharp HealthCare and Sharp Grossmont Hospital released a statement asserting the surveillance was set up “to ensure patient safety by determining the cause of drugs missing from the carts”:

Between July 2012 and June 2013, Sharp Grossmont Hospital installed and operated one hidden camera on the anesthesia cart located in each of three operating rooms in the Women’s Center. The purpose of the three cameras was to ensure patient safety by determining the cause of drugs missing from the carts. An initial lawsuit alleging privacy violations and other claims stemming from the video recording was filed against Sharp HealthCare and Sharp Grossmont Hospital in 2016. The case remains active and Sharp is not in a position to comment further about the matter. Sharp HealthCare and Sharp Grossmont Hospital continue to take extensive measures to protect the privacy of its patients.

Privacy and Negligence

This lawsuit puts forth several invasion of privacy claims. And while Sharp spokesperson John Cihomsky told the New York Times that only a handful of authorized people in the company’s security, legal and clinical departments reviewed the videos and that the “videos themselves are, and have always been, securely maintained,” that lawsuit also charges the hospital with negligence for storing the videos on computers used by multiple people, some of which were not password protected.

Patient privacy, and breach, is a serious matter. If you think a medical provider has improperly recorded, used, or released your medical information, talk to an attorney immediately.

Related Resources:

Find Personal Injury Lawyers Near You (FindLaw’s Lawyer Directory)

Women Sue L.A. Hospital for Gynecologist Sexual Misconduct (FindLaw’s Injured)

Lawsuit: Mississippi Hospital Liable for Sex Assault by Paramedic (FindLaw’s Injured)

Can I Sue for Hospital Negligence? (FindLaw’s Injured)

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California Women’s Hospital Sued for Allegedly Filming 1,800 Patients

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Increasing Employment for Americans Reentering the Workforce from the Justice System

The post Increasing Employment for Americans Reentering the Workforce from the Justice System appeared first on Law Offices of Ainbinder & Pratt.

Increasing Employment for Americans Reentering the Workforce from the Justice System

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Xarelto Settles 25,000 Cases for $775M

The makers of the blood-thinning drug Xarelto, Bayer and Johnson & Johnson, have agreed to settle the 25,000 consolidated cases against them for $775 million.

The massive mass tort settlement resolved the cases by creating a fund that the individual plaintiffs in each case can seek compensation from. Curiously, in six of the trials of individual cases, the drug makers actually won. However, facing mounting litigation costs for continuing to battle it out, the companies’ statement explains that settling was an economic decision. Despite the big settlement figure, the path actually pans out.

What Are These Cases About?

The Xarelto cases involve claims that the drug maker failed to warn those patients prescribed the drug of several, potentially fatal, side effects. Complicating matters is the fact that prescribed patients cannot simply stop taking the drug without risk.

For several years when the drug was first sold, those risks were not disclosed, which basically meant anyone taking the drug prior to the disclosure in 2015 potentially had/has a claim. The value of that claim however is likely to vary based on whether there has been an impact to the person’s life as a result of the failure to disclose.

Big Numbers, But Not Big Enough?

While that $775 million figure might sound impressive, even assuming no attorney fees or costs come out of that number, which is unlikely, each of the 25,000 cases would have $31,000 each (hypothetically if everyone got the same amount, which isn’t likely to be the case as many suffered more injury than others).

As Forbes explains, the drug makers are basically getting off easy here. Given the sheer number of cases that $775 million settles out, it’s clear the drug makers have gotten the benefit of the bargain in this settlement.

Related Resources:

$28M Xarelto Verdict Goes Against J&J, Bayer (FindLaw’s Injured)

Xarelto Injuries or Fatalities: Can You Sue? (FindLaw’s Injured)

Xarelto Litigation: 6,000 Lawsuits Consolidated (FindLaw’s Injured)

The post Xarelto Settles 25,000 Cases for $775M appeared first on Law Offices of Ainbinder & Pratt.

Xarelto Settles 25,000 Cases for $775M

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Jury Orders Monsanto to Pay $80M in Roundup Cancer Case

Last week, a California jury determined Monsanto’s popular Roundup weed killer was a “substantial factor” in causing a longtime customer’s non-Hodgkin lymphoma. What was left to figure out was how culpable the company was in creating a dangerous product and failing to warn consumers. We now have our answer.

In phase two of Edwin Hardeman’s trial, the same jury ordered Monsanto to pay him more than $80 million for failing to include Roundup’s cancer-causing risk on the label.

A Dangerous Product?

“The evidence is overwhelming that Roundup can cause non-Hodgkin’s lymphoma,” Hardeman’s lawyer, Jennifer Moore, told The New York Times. “And despite that, Monsanto continues to deny that.” Moore claimed Monsanto ignored scientific evidence regarding Roundup’s harmful health effects, leading the jury to hold the company accountable.

The science on Roundup, it seems, is split. The World Health Organization deemed glyphosate, a main weed-killing ingredient, “probably carcinogenic” in 2015. But the EPA in 2017 claimed glyphosate it was “not likely to be carcinogenic to humans.” Now, a newer study relied upon by expert witnesses in Hardeman’s trial linked large doses of the chemical to a heightened risk for non-Hodgkin lymphoma.

In the end, the jury was convinced enough to award Hardeman more than $200,000 for medical bills (he underwent chemotherapy treatments and his attorneys claim his cancer is in remission), and another $5 million for his past and future suffering. The remaining $75 million of the award is punitive damages, based on Roundup’s negligence and failure to warn.

Product Liability

Proving fault in a product liability case is no easy task, and generally require proof that the manufacturer knew its product was dangerous. Claims against chemical manufacturers can be based on:

Defects in Design: The chemical is inherently unreasonably dangerous to consumers;

Defects in Manufacturing: The chemical was improperly manufactured, dangerously departing from the intended composition; or

Defects in Warnings: The chemical product lacks adequate instructions or warnings, rendering it unreasonably dangerous.

In this case, the jury was sufficiently swayed that Monsanto knew Roundup was dangerous and failed to place adequate warning labels on the glyphosate-based product.

If you have more specific questions about product liability cases or feel you’ve been injured by a dangerous product, contact a local personal injury attorney.

Related Resources:

Find Personal Injury Lawyers Near You (FindLaw’s Lawyer Directory)

Reuters Releases Johnson & Johnson Report, Suggests Internal Knowledge for Decades (FindLaw’s Injured)

Lumber Liquidators Scandal Keeps Getting Worse (FindLaw’s Injured)

Legal Basis for Liability in Product Cases (FindLaw’s Learn About the Law)

The post Jury Orders Monsanto to Pay $80M in Roundup Cancer Case appeared first on Law Offices of Ainbinder & Pratt.

Jury Orders Monsanto to Pay $80M in Roundup Cancer Case

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A SORDID TALE

With yesterday’s release of a report by California State Auditor Elaine Howle, lingering questions have now been answered about the 2018 sudden departure of Christine Baker from her post as Director of the California Department of Industrial Relations.

Howle’s report details a pattern of nepotism, lies, favoritism, manipulation, retaliation, creation of a culture of fear and even racial animus by Baker. The report can be seen at the bottom of this post.

Baker’s 2018 departure was so sudden that most stakeholders were left scratching their heads and wondering if there was a back-story to the departure. Brown Administration officials circled the wagons and there was little credible information available, though this blog and some of the workers’ comp press had unconfirmed reports. Eventually Workcompcentral published on the allegations after a whistleblower contacted their newsroom.

A 2018 notice of an upcoming audit to be published on the state auditor’s website disappeared, and the auditor office refused to confirm anything at that time.

An apparently related controversy had developed when it was revealed that DIR employees had been ordered to read e-mails to look for whistleblowers. As part of this, e-mails between the Katherine Zalewski, chairperson of the WCAB and a former DIR employee were accessed.

It turns out that Ms. Howle’s office had been doing an in-depth investigation starting in 2015, looking at over a million DIR e-mails. Many interviews were conducted, and many of those interviewed indicated that they were concerned about retaliation.

Most of the events center around how Baker handled the employment of her daughter, Julianna Baker, at DIR. Among other things, the daughter lied about her time and assignments and is said to owe the state a six-figure sum. But the pattern is far beyond that of a protective mother (a helicopter or bulldozer parent) trying to help her daughter succeed. Improprieties regarding another employee was also key.

The story is one of a workplace culture that so concerned Howle that she decided to file a confidential report with the DIR’s oversight agency. That would have been with David Lanier, at the time a member of Jerry Brown’s cabinet and the Secretary of the California Labor and Workforce Development Agency. Lanier is now on the SCIF Board of Directors.

Here is what Howle says happened:

“In April 2015, my staff deemed credible allegations involving improper governmental activities by a department director and her daughter who worked at the same department. Because of the limited scope of these initial allegations against the department’s highest ranking officer, and as state law allows, my office formally referred the case to the department’s oversight agency for it to complete further investigation by June 2015. In that written referral, we cautioned agency officials that, by law, they must keep confidential the existence and details of the complaint, and that they could not disclose any information provided by my office or obtained from reviewing or investigating the allegations.

Nevertheless, we later learned that, within just a few weeks of our issuance of that confidential referral to the oversight agency, the agency secretary directly violated the law by sharing with the director information of the impending investigation, which is evidenced by an email between the director and the agency secretary. In that email, the director defended her daughter’s presence in the department and speculated that the allegations came from within a particular ethnic group of employees. A few hours later, the director further shared with her brother, who also worked at the department, her email to the agency secretary, and the director indicated to the brother that he should delete the email after reading it.”

In further criticism of the way Lanier’s agency handled the matter, Howle notes that: 

“In addition to the agency secretary’s clear disregard of confidentiality requirements, the oversight agency failed to provide its final investigative report to us until a full year after the 60‐day deadline required by law. During that year, my office received additional allegations of other instances of the director’s improper governmental activities. Given the increased number and scope of the whistleblower accusations and our heightened concern about confidentiality and protecting whistleblowers against retaliation, we decided that the oversight agency’s response to the investigative request was insufficient to fully address the allegations. Therefore, we incorporated the agency’s findings into a separate and larger investigation that my staff conducted.”

All of this makes it perplexing as to why, knowing all this, Baker was pointed to the Fraud Assessment Commission in the waning days of the Brown Administration. That would seem to have taken quite an act of chutzpah by those in the Brown chain of command, knowing that this issue with Baker and the Howle investigation was still smouldering.

While there is a reservoir of admiration and gratitude by some of the key workers’ comp stakeholders for Baker’s role in forging the 2012 reforms and the regulatory aftermath, one would have thought that the circumstances of her departure and the pending State Auditor investigation would have made her radioactive for appointment to any further official position.

All of this leaves an overhang for the Newsom Administration to deal with. Howle’s report notes a number of areas that still need attention at DIR. Since at the moment there has been no announced Newsom appointment to DIR, this falls to Julie Su, the new Secretary of Labor and Workforce Development. Here is what Howle says about the situation now:

“After we issued the nonpublic report in May 2018, we expected that the agency would take swift and appropriate disciplinary action against the director and associated subjects, protect those who cooperated with the investigation, and implement our recommendations to prevent future improper activities. Despite the agency providing its mandated monthly updates to us, we do not yet see evidence that the agency has acted with appropriate rigor to remediate the effects of the director’s behavior; in fact, since we informed the oversight agency of our findings, it has not fully implemented any of the recommendations we made in the report. As of March 2019 and excluding duplicative recommendations, the agency has four pending recommendations, four partially implemented recommendations, and two recommendations we deemed resolved because impacted employees resigned or retired from state service.”

Here is the State Auditor report:

ChristineBakerAuditorReport

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

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A SORDID TALE

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Jury Rules Roundup a Substantial Factor in Man’s Cancer

Scientists can’t seem to agree on glyphosate. The popular weed-killer ingredient was deemed “probably carcinogenic” by the World Health Organization in 2015, but the EPA in 2017 said it was “not likely to be carcinogenic to humans.” And then a new study suggests people exposed to large doses of the chemical have a heightened risk for non-Hodgkin lymphoma.

But while scientists may not be able to say that glyphosate causes cancer, a jury can. Jurors in a federal lawsuit in California ruled that Roundup — which contains glyphosate — was a substantial factor in causing Edwin Hardeman’s non-Hodgkin lymphoma.

Science Roundup

Hardeman underwent chemotherapy treatments in 2015. This was after the 70-year-old used Roundup to kill poison oak on his 56-acre property for 26 years. Two of the expert witnesses who testified in Hardeman’s case cited the latest study linking glyphosate and non-Hodgkin lymphoma. According to the study’s author, Rachel Shaffer, people who are highly exposed to glyphosate are 41% more likely to contract NHL than the overall population.

But this is just the first phase of Hardeman’s trial. Now that jurors had determined the chemical to blame for his cancer, they must now decide how liable the manufacturer will be. Bayer AG acquired Roundup maker Monsanto last year, and continues to claim “glyphosate-based herbicides do not cause cancer.” Hardeman’s lawyers, on the other hand, claim they have evidence that Monsanto attempted to manipulate public opinion and science to minimize Roundup’s health risks.

Legal Steps

Hardeman’s is far from the only lawsuit claiming Roundup causes cancer. Some 11,000 Roundup suits are pending in American courtrooms, around 760 of which are in front of the same judge as Hardeman’s. His is considered a “bellwether” trial which could impact how those other cases proceed, although Bayer contends the jury finding “has no impact on future cases and trials because each one has its own factual and legal circumstances.” Last year, a different California jury awarded $289 million to a groundskeeper who contracted lymphoma after using Roundup, although a judge later reduced the verdict to about $78 million.

Product liability cases can be complex, especially those that attempt to link products to cancer diagnoses. If you think a particular product is responsible for your cancer, talk to an experienced personal injury attorney about your legal options.

Related Resources:

Find Personal Injury Lawyers Near You (FindLaw’s Lawyer Directory)

Monsanto’s Roundup Found by Jury to Be Likely Cause of Cancer in Second Bay Area Man (San Francisco Chronicle)

$28M Xarelto Verdict Goes Against J&J, Bayer (FindLaw’s Injured)

Product Liability Claims Arising from Pesticides (FindLaw’s Learn About the Law)

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Jury Rules Roundup a Substantial Factor in Man’s Cancer