Family Awarded $1 Million From Medical Examiner’s Office That Kept Their Son’s Brain

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Posted on 27th November 2011 by gjohnson in Uncategorized

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Justice sometimes does triumph.

A Staten Island, N.Y., couple has won a $1 million judgment against the New York City Medical Examiner’s Office, which retained their dead son’s brain without their permission or knowledge, the New York Post reported Saturday.

http://www.nypost.com/p/news/local/staten_island/sitting_on_their_brains_rYp0ijgNEZRVOmtijfRMMK

In a macabre twist in an already freaky case, the parents of Jesse Shipley, 17, didn’t discover that they didn’t have his brain until some of his high school friends saw it in a marked jar during a field trip to Staten Island’s morgue.

Jesse was killed in a car crash in January 2005, and was autopsied by the local medical examiner. But the Medical Examiner’s Office returned Jesse’s body to his parents for burial without his brain, without mentioning that little tidbit to the Shipley family. Doctors wanted to perform tests on the organ, according to the Post.

Jesse’s family only learned that their son’s body was missing its brain when they buried it because of the shocking incident during the field trip. That when Jesse’s schoolmates chanced upon his brain in the jar, the Post reported.

Needless to say, the teens told Shipley’s surprised family what they had seen. If that wasn’t disturbing enough, “a Catholic priest told the family that Jesse’s burial wasn’t proper without his brain,” according to the Post.

The family didn’t get the brain back until October 2005, and they subsequently filed suit against the Medical Examiner’s Office. The city was liable, according to a Staten Island Supreme Court judge, under the so-called right of sepulcher, which says that a family is entitled to all the remains of a relative, according to the Post.

The defense didn’t have a leg to stand on. The city apparently contended that Jesse’s father Andre Shipley “would have known his son’s brain were being kept for further testing if he’d known to ask,” the Post reported.

What?

It probably didn’t help the defense’s case, either, when a medical examiner said he keep Jesse’s brain hanging around in a jar because he waits until he has a half dozen brains before calling in a neuropathic examiner to study them, the Post said.

We hope in those other cases that the families knew their loved one’s brains had been withheld from them, unlike the Shipleys.

The Shipleys did lose one legal acton last year, when the family sued claiming that their son’s brain had been displayed unlawfully. An appellate court threw that claim out, the Post reported.     

 


Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
g@gordonjohnson.com :: 800-992-9447 :: Attorney Gordon S. Johnson, Jr.

Two Reports Explain Why Medical Malpractice Caps Hurt Consumers

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Posted on 19th November 2011 by gjohnson in Uncategorized

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Despite the rheroric of many lawmakers and the misconceptions of the public, putting caps on medical practice cases doesn’t hold down spiraling health care and insurance costs, according to two recent reports on the topic.  

“A Failed Experiment: Health Care in Texas Has Worsened in Key Respects Since State Instituted Liability Caps in 2003,” done by the public advocacy group Public Citizen, and “Can Mandatory Caps on Medical Malpractice Damages Harm Consumers?,” by the think tank the Cato Institute, were both released last month.  

http://www.citizen.org/documents/a-failed-experiment-report.pdf

http://www.cato.org/pubs/pas/pa685.pdf

And they both come to somewhat similar conclusions, namely that medical malpractice awards don’t drive up the cost of health care.

But what is disturbing in these reports is that consumers, people who have been harmed and have a cause of action against a medical provider, are being short-changed because of the caps. In fact, even worse, they are losing their ability to sue as lawyers shy away from bringing litigation that is expensive to try, with little potential reward.

The Public Citizen report dealt with Texas, which set a $250,000 limit on noneconomic damages for medical malpractice suits in 2003.

“A common misconception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for our country’s skyrocketing health care costs and steadily diminishing access to care,” the report said. “Those who blame malpractice litigation for the broken economics of our health care system typically tout laws limiting physicians’ liability as the answer.”

But the data in Texas doesn’t bear that out, despite the claims to the contrary by Texas Gov. Rick Perry,  who spearheaded the legislation limiting cap awards, according to the Public Citizen report.

“While litigation over malpractice in Texas has plummeted dramatically since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extend, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure,” the report said.         

Since the Lone Star State imposed the caps, its Medicare spending has outpaced the national average. 

“Per enrollee spending for Medicare’s two main programs ranked second-highest in Texas among the 50 states in 2009,” the report said. “In 2003, Texas ranked seventh … These figures contradict the theory that medical malpractice litigation is driving health care costs.”

In addition, premiums for private health insurors have risen and outpaced the national average. Oh, by the way, the percent of Texans who are uninsured has also increased, “solidifying the state’s dubious distinction of having the highest uninsured rate in the country,” according to the report.

In addition, the per capita increase in the number of doctors practicing in Texas has been slower than prior years, and “the prevalence of physicians in non-metropolitan areas has declined,” according to the report.

The cap in Texas appears to have been a boon to insurance companies and doctors. For one insuror, premiums for doctors were 50 percent less in 2010 versus 2003.  But the medical malpractice payments that insurors are issuing have dropped 74 percent, adjusted for inflation, from 2003 to 2010, the report said. That translates into a “windfall” for insurance companies, according to the report.

“But the benefits realized by these two groups have not translated into savings for regular Texans or for the taxpayers who  fund Medicare,” the report said.

The Public Citizen report is very detailed, and it all can’t be presented here. But one of the highlights is the section on health insurance premiums. Caps have not kept those costs down.

“Although health insurance costs in Texas have not outpaced national rates as dramatically as have Medicare expenditures in the state, they have risen faster than the national average since the caps were imposed,” according to the report. “Family health insurance premiums in Texas rose by 51.7 percent between 2003 and 2010. Nationally, they rose by 50 percent. Since 2004, health insurance premiums in Texas have risen 13.1 percent faster in Texas than nationally.”

Here are the report’s conclusions.

“Despite the sales campaign to promote Texas as an exhibit of the merits of limiting doctors’ liability for mistakes, the real world data tell the opposite story. Health care in Texas has become more expensive and less accessible since the state’s malpractice caps took effect.

The beneficiaries of the new system are the doctors who escape accountability for their errors and the liability insurance  companies that reap a windfall of inflated premiums. Regular Texans are the losers. They include not only the victims of medical malpractice who are deprived of the chance to recover damages but also the taxpayers who must foot the bill for the future medical costs of seriously injured patients.”

That conclusion is similar to the one made in the study by the Cato Institute, on whether mandatory caps on medical malpractice damages harm consumers. The executive summary of that report makes its position pretty clear.

“Supporters of capping court awards for medical malpractice argue that caps will make health care more affordable,” the Cato report said. “It may not be that simple.”

That’s the understatement of the year.

“First, caps on awards may result in some patients not receiving adequate compensation for injuries they suffer as the result of physician negligence,” the Cato report said.

“Second, because caps limit physician liability, they can also mute incentives for physicians to reduce the risk of negligent injuries,” the report added.

And contrary to what supporters of caps claim, “medical malpractice awards do track actual damages,” according to the Cato report.

But here is the heart of the matter, from the report.

“If the medical malpractice liability insurance industry does indeed protect consumers, then policies that reduce liability or shield physicians from oversight by carriers may harm consumers,” it said.

In its conclusion, the Cato report said that patients are protected by a interdependent system of oversight that includes evaluations, hospital oversight and the medical malpractice industry.

“Underlying nearly all of these activities is the threat of legal liability for negligent injuries,” the report said. “Reducing physician liability for negligent care by capping court awards, all else equal, will reduce the resources allocated to medical professional liability underwriting and oversight and make many patients worse off. Legislators who see mandatory liability caps as a cost-containment tool should look elsewhere.”

Amen.           

                      


Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
g@gordonjohnson.com :: 800-992-9447 :: Attorney Gordon S. Johnson, Jr.

Victims, Survivors Of Fort Hood Massacre Seek $750 Million Compensation From Army

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Posted on 12th November 2011 by gjohnson in Uncategorized

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Did the U.S. Army ignore the increasingly obvious radicalization of a Muslim psychiatrist at Fort Hood, Texas., out of political correctness? And did that alleged negligence lead to the worst-ever mass shooting at an American military installation?  And if there was negligence, does it add up to $750 million in compensation?

Those are the issues that have to be decided in response to administrative claims filed by 83 victims and family members involved in the Nov. 5, 2009, massacre engineered by Major Nidal Hasan, according to the Associated Press. He is awaiting trial on charges of the premeditated murder of 13 soldiers and civilians, as well as 32 counts of attempted premeditated murder for those he wounded.

http://www.washingtonpost.com/politics/apnewsbreak-83-victims-family-members-seek-750m-for-preventable-fort-hood-tragedy/2011/11/10/gIQALoqL9M_story.html

The attorney representing the claimants, Neal Sher, told AP Hasan has been the only one able to commit a terrorist attack in the United States since 9/11.

Claims have been filed by: 54 relations of eight of the soldiers that were slain; one civilian police officer and nine wounded soldiers; and 19 people related to the police officer and wounded soldiers.

One of the police officers who shot Hasan and ended his murderous rampage, Sgt. Kimberley Munley, is among those who have filed claims, AP reported. She was wounded during her exchange with Hasan, and has had to leave law enforcement. She is currently on unpaid leave.

In a statement, Munley said that she believes the tragedy at Fort Hood could have been prevented if the Army hadn’t “swept under the rug” all the warnng signals it had about Hasan. And she’s got a good point.

Hasan had become increasingly vocal and radical, outspoken in his growing support of Islamist extremism and the violence that comes with it. At one point, according to AP, this American-born Muslim defended of suicide bombings.   

Authorities believe that Hasan’s deadly actions were prompted by his association with American-born Anwar al-Awlaki, AP reported, and both men had exchanged emails. A U.S. drone killed al-Awlaki in September.

With his actions before the slaughter, Hasan was essentially walking around with a sign that said “I’m dangerous, stop me.” But no one in the Army did.

Someone in an airport saying the things that Hasan was saying on a military base would be locked up. Yet he got away with it. Perhaps the military didn’t want to appear as if it was profiling or harassing Muslims in the service. 

As a result, 13 people are dead.    


Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
g@gordonjohnson.com :: 800-992-9447 :: Attorney Gordon S. Johnson, Jr.

Glaxo To Pay U.S. Record $3 Billion Settlement Of Probes Into Its Sales Practices

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Posted on 5th November 2011 by gjohnson in Uncategorized

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In what will be the largest settlement of its kind, GlaxoSmithKline plc has reached a deal to pay $3 billion to resolve a variety of pending criminal and civil probes into its marketing of drugs for unapproved uses.

But some consumer advocates were arguing that an executive from the drug giant should be going to prison for what happened.

The British pharmaceutical giant issued a press release Thursday announcing the agreement in principle with the U.S. government.

http://www.gsk.com/media/pressreleases/2011/2011-pressrelease-710182.htm

That settlement will put an end to “significant ongoing Federal government investigations, specifically: the investigation into GlaxoSmithKline’s sales and marketing practices begun by the US Attorney’s office of Colorado in 2004 and later taken over by the US Attorney’s Office of Massachusetts;  the U.S. Department of Justice’s investigation of possible inappropriate use of the nominal price exception  under the Medicaid Rebate Program;  and the Department of Justice’s investigation of the development and marketing of Avandia.”

Avandia is a medication for diabetes whose use in the United State was restricted last year after it was tied to an increased risk of heart attacks.

“Federal prosecutors said the company had paid doctors and manipulated medical research to promote the drug,” The New York Times reported. 

http://www.nytimes.com/2011/11/04/business/glaxo-to-pay-3-billion-in-avandia-settlement.html?_r=1

The GlaxoSmithKline settlement tops the previous highest, when Pzifer paid $2.3 million in 2009, according to The Times. Both cases involved the illegal marketing of drugs.  

The final GlaxoSmithKline settlement, which is expected to address civil and criminal liabilities, remains subject to negotiation of specific terms and is expected to be finalized in 2012.  The company  expects to make payments under the final agreement in 2012.

“This is a significant step toward resolving difficult, long-standing matters which do not reflect the company that we are today,” GlaxoSmithKline CEO Andrew Witty said in a statement. “In recent years, we have fundamentally changed our procedures for compliance, marketing and selling in the U.S. to ensure that we operate with high standards of integrity and that we conduct our business openly and transparently. We reiterate our full commitment to ensuring appropriate promotion of our medicines to healthcare professionals and to the standards rightly expected by the U.S. government.”

In its press release, GlaxoSmithKline made the case that it has remedied issues relating to its sales practices.

“Since 2008, GSK has established a new framework for compliance in the U.S., based on the company’s values, policies and established industry codes of practices,” the company said. “It is supported by a larger compliance staff and strengthened training programs that require certification by employees.”

GlaxoSmithKline also said that it had undertaken other changes in its commercial procedures, “including the implementation of a new incentive compensation system for its professional sales representatives who work directly with health care professionals.”

The pharmaceutical giant said, “The new system eliminates individual sales targets as a basis for bonuses, and instead bases incentive compensation on the quality of the service these representatives deliver to customers to support improved patient health.  The Company’s U.S. Commercial Practices Policies now meet or exceed the US PhRMA Code governing interactions with healthcare professionals.”

The drug firm ended its press release with this self-righteous comment, which is rather ironic when one considers what the company was under investigation for allegedly doing.

“GlaxoSmithKline – one of the world’s leading research-based pharmaceutical and healthcare companies – is committed to improving the quality of human life by enabling people to do more, feel better and live longer.”

The Times noted that last year, a former attorney for GlaxoSmithKline, Lauren Smith, was tried and acquited of charges of obstruction of justice and making false statement relating to the accusations against the drug giant.

According to Bloomberg News, the settlement covered both a Justice Department probe of the marketing of Avandia and also GlaxoSmithKline and a federal Medicaid rebate program.   

http://www.bloomberg.com/news/2011-11-03/glaxo-agrees-to-pay-3-billion-to-settle-u-s-probe-into-sales-marketing.html
 

“Drugmakers are required to give rebates to Medicaid, the government health incurance program for the poor,” Bloomberg wrote. “The investigation examined how Glaxo reported prices charged to other payers, which are used in calculating the Medicaid rebates.”

The financial wire service also noted that GlaxoKlineSmith’s compensation system for its sales reps had been changed to eliminate “the link between sales goals and bonuses, which are now based on selling competency, customer evaluations and overall performance ot the representative’s business unit.”

All in all, we’d have to say that we agree with the consumer groups: GlaxoSmithKline got off easy.  


Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
g@gordonjohnson.com :: 800-992-9447 :: Attorney Gordon S. Johnson, Jr.