Recent Blog Posts in 2009

On November 4, 2009, the FDA introduced its "Safe Use Initiative," an effort to collaborate with the health care field to reduce the preventable harm resulting from medication use and misuse.

The Initiative is in response to the millions of consumers who are harmed each year because of the misuse of medications. The inappropriate use of medications can be a result of several factors, including (1) incomplete access to information, (2) unintentional misuse of medications, medication abuse, and attempts by people to harm themselves with medications, or (3) taking prescription drugs prescribed for other people.

Taking prescription drugs prescribed for other people is a serious abuse, as even one single dose of certain medications, such as opioid drugs, can cause severe harm or death to the person not prescribed the medication.

Through the Initiative, the FDA will work alongside health care professionals to identify drugs that are linked to preventable harm. The FDA intends to collaborate with health care professionals to (1) evaluate consumer medication information, (2) communicate about the risk of inadvertent overexposure to acetaminophen, (3) apply safeguards against surgery fires caused by alcohol-based surgical preparations, and (4) avoid contamination of multiple-use medication vials.

The Nevada Supreme Court addressed the liability of a hotel for injuries occurring in an automobile accident after evicting intoxicated persons from the hotel premises in Rodriguez v. Primadonna Company, 125 Nev. Adv. Op. No. 45 (October 1, 2009).

In Rodriguez, 17 year old Fabian Santiago had been drinking with his two adult uncles, Manuel and Daniel Garibay, on hotel property where they were checked in as guests. They became disruptive, and hotel security intervened. The hotel security officers' requested that Fabian and his uncles leave the property. Hotel security accompanied the three men as they retrieved their belongings. Manuel told another guest that the three of them were going to their car in the parking lot to "sleep it off." Manuel had not intended to drive, as he did not have valid license and he believed he was too intoxicated. When the men were escorted to their vehicle, Manuel told Daniel he was sober enough to drive. Hotel security personnel informed the men, seated in their car, that they had to leave the hotel parking lot and exit hotel property. After leaving the property, Manuel rolled the vehicle while driving at approximately 80 miles per hour. 17 year old Fabian suffered extreme spinal injuries and, as a result, is quadriplegic.

In addressing the claim of negligent eviction, the Court was faced with the issue of whether the hotel owed an affirmative duty to ensure Fabian's safety after he was evicted from hotel property. The Court reviewed Nevada law regarding intoxicated patrons:

• In Nevada, hotel proprietors have the statutory right to evict from the premises anyone who acts in a disorderly manner or who causes a public disturbance in or upon the premises. NRS 651.020.[1]
• In Nevada, commercial liquor vendors, including hotel proprietors, cannot be held liable for damages related to any injuries caused by the intoxicated patron, which are sustained by either the intoxicated patron or a third party, including when the intoxicated patron is a minor.
• Nevada subscribes to the rationale underlying the nonliability principle--that individuals, drunk or sober, are responsible for their torts.

The Court concluded that "when a hotel proprietor rightly evicts a disorderly, intoxicated patron, the hotel proprietor is not liable for any torts that an evicted patron commits after he or she is evicted that result in injury." The proprietor does not have the duty to prevent injuries caused by the intoxicated patron that are sustained either by the patron or by third parties after the eviction has been executed.

The Court did recognize that hotel proprietors do have a duty to act reasonably under the circumstances. The Court stated, however, that in accordance with the principles underlying Nevada's rejection of dram-shop liability, so long as a proprietor does not use unreasonable force in evicting a patron, the hotel proprietor is not required to consider a patron's level of intoxication in order to prevent speculative injuries that could occur off the proprietor's premises.

Thus, although the hotel may have known that Fabian's step-uncle was intoxicated and could not safely drive, the Court concluded, "as a matter of law, that Primadonna did not have the duty to arrange safer transportation, prevent an intoxicated driver from driving, or prevent Fabian, a passenger, from riding with a drunk driver."

In Delgado v. American Family Ins. Group, 125 Nev. Adv. Op. No. 44 (October 1, 2009), the Nevada Supreme Court was faced with the question of whether the passenger in an automobile who is injured by the concurrent negligence of the drivers in a two-car accident "may recover under the permissive driver's insurance policy both liability benefits based on the policyholder's negligence and underinsured motorist benefits based on the other driver's underinsured status."

The plaintiff passenger had made a claim against both at-fault drivers' insurance policies and recovered the liability limits under those policies. She then made a claim against the permissive driver's underinsured motorist policy, alleging that the at-fault policies did not cover the extent of her damages.

The Court rejected the application of the anti-stacking rules under the Nevada case law. In Nevada, once a passenger has recovered under the vehicle owner's liability policy--whether that policy is the permissive driver's policy or the passenger's own policy--the passenger may not also recover under the owner's uninsured/underinsured motorist policy, although the guest passenger may stack their own UM/UIM coverage with the benefits they receive from the owner's policy. Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991).

Distinguishing the anti-stacking situation, the Court concluded that "a passenger who is injured by two concurrently negligent drivers may recover from both the permissive driver's single insurance policy liability benefits based on the permissive driver's negligence and underinsured motorist benefits based on the other driver's underinsured status."

The Court clarified that the antistacking rule under Nevada law was not implicated by this case. Thus, a passenger whose injuries are attributable to two jointly negligent drivers and who exhausts the liability limits of the permissive driver's policy without satisfying his damages may seek recovery under the permissive driver's underinsured motorist policy based on the other driver's underinsured status. 

The Las Vegas Sun reported that the Nevada Supreme Court denied a challenge to the civil enforcement of Nevada's indoor smoking ban.

The criminal enforcement of the smoking ban had already been held unconstitutional, and the statutory basis for criminal enforcement has been removed from the statute.

However, civil enforcement of the smoking ban is constitutional, despite the challenge from Las Vegas businesses. The businesses challenged the provisions under the equal protection clause, as the statute exempts gambling areas in large casinos, certain taverns, and certain strip clubs.

In rejecting the challenge, the Supreme Court reasoned that the exemptions did not violate equal protection because they are justified by the fact that "minors are prohibited from gambling areas in casinos, unlike in smaller bars and restaurants where slot machines are "incidental" to their overall business."

The Nevada Supreme Court addressed the scope of an insurer's duty to defend under the implied covenant of good faith and fair dealing in Allstate Insurance Co. v. Miller, 125 Nev. Adv. Op. No. 28 (July 30, 2009).

The opinion considered when an insurer has a duty to inform its insured about settlement opportunities.

The Court held that an insurer's duty to defend includes a duty to "adequately inform the insured of settlement offers," including reasonable offers that exceed policy limits. An insured's failure to so inform its insured can be used as a factor in bad faith claims. The failure to inform can also serve as a proximate cause of damages to the insured.

See the entire opinion here

The Nevada Supreme Court clarified business defamation in Clark County Sch. Dist. v. Virtual Educ., 125 Nev. Adv. Op. No. 31 (August 6, 2009).

The case presented the issues to the Court of whether "the absolute privilege applies to defamatory communications made by a nonlawyer in anticipation of a judicial proceeding," and "whether allegedly defamatory statements made about a business's product provide a basis for defamation per se or for business disparagement."

The Court concluded that in a business defamation action under Nevada law, "the absolute privilege affords parties to litigation the same protection from liability that exists for an attorney for defamatory statements made during, or in anticipation of, judicial proceedings."

Furthermore, "when allegedly defamatory statements concern a business's product and the plaintiff seeks to redress injury to economic interest, the claim is one for business disparagement, not defamation per se."

See the Court's opinion here.

The Medicare, Medicaid and SCHIP Extension Act of 2007, or MMSEA, affects judgments and settlements involving Medicare liens. Plaintiffs and Defendant attorneys should be aware of the changes. The AAJ released a clarification about the MMSEA:

In cases involving Medicare beneficiaries, attorneys for both the plaintiff and defendant are required to report certain information to the Centers for Medicare and Medicaid Services (CMS). In addition, any case settlement or judgment must reimburse Medicare where the Trust Fund has made conditional payments for medical costs. Under the Medicare Secondary Payer Act, attorneys have been settling cases involving liability claims without completing a Medicare Set Aside (MSAs) to account for future medical costs. However, attorneys representing claimants in workers' compensation cases have been preparing MSAs on a case-by-case basis.

If CRS believed that the legislative language implies any Congressional endorsement of liability setasides, it would have been included in this analysis.

More information on the MMSEA can be found at the Centers for Medicaid and Medicare website

The American Association for Justice reports about the hearing on the Medical Device Safety Act held last week:

Two years ago, Michael Mulvihill of Bettendorf, Iowa, was driving with his wife across the Midwest to visit his son, daughter-in-law, and grandchildren when he saw a blue light flash before his eyes. He felt his body shaking and thought it was from hitting road debris. He soon realized his heart defibrillator was malfunctioning and sending electrical shocks throughout his body while he was driving on the interstate.

"The Medical Device Safety Act is necessary to protect patients from defective devices and make sure manufacturers are held accountable," said Linda Lipsen, Senior Vice President of Public Affairs at the American Association for Justice. "The Supreme Court has affirmed that state law offers an important layer of consumer protection, and Congress should make clear that this applies not just in cases of pharmaceutical drugs, but also medical devices approved by the FDA that are later faulty or malfunction."

The U.S. Senate held a hearing yesterday regarding the Medical Device Safety Act, introduced in March of 2008 and aimed at clarifying that FDA approval doesn't preempt lawsuits against medical device manufacturers.

MedPage Today summarizes the bill and the reasoning behind it:

Under U.S. law, device companies are not liable for damages if their products cause harm as long as the device received premarket approval from the FDA.

"It will create more frivolous lawsuits and increase healthcare costs, and it will make it harder for small medical device manufacturers to invest in promising new technologies," said Stephen Ubl, president and CEO of AdvaMed.  

The Las Vegas Sun reported that a four-year-old boy drowned last Saturday in an apartment complex pool. The tragic incident marks the seventh child drowning this year in Nevada.

ABC reports that there are approximately 1,500 child deaths each year from drowning.

Although swimming pools offer fun and refreshment during the hot summer months, they are dangerous if proper caution is not used. Here are some tips from the American Academy of Pediatrics:

• Never leave your children alone in or near the pool, even for a moment. An adult who knows CPR should actively supervise children at all times.

• Practice touch supervision with children younger than 5 years. This means that the adult is within an arm's length of the child at all times.

• You must put up a fence to separate your house from the pool. Most young children who drown in pools wander out of the house and fall into the pool. Install a fence at least 4 feet high around all 4 sides of the pool. This fence will completely separate the pool from the house and play area of the yard. Use gates that self-close and self-latch, with latches higher than your children's reach.

• Keep rescue equipment (such as a shepherd's hook or life preserver) and a telephone by the pool.

• Do not use air-filled "swimming aids" as a substitute for approved life vests.

• Remove all toys from the pool after use so children aren't tempted to reach for them.

• After the children are done swimming, secure the pool so they can't get back into it.

• A power safety cover that meets the standards of the American Society for Testing and Materials (ASTM) may add to the protection of your children but should not be used in place of the fence between your house and the pool. Even fencing around your pool and using a power safety cover will not prevent all drownings.

• Remember, teaching your child how to swim DOES NOT mean your child is safe in water. 

The Nevada Supreme Court refused to recognize a "heeding presumption" in strict products liability failure-to-warn cases, in its June 4 decision, Rivera v. Philip Morris, Inc.

A heeding presumption is a rebuttable presumption that allows a fact-finder to presume that the injured plaintiff would have heeded an adequate warning if one had been given.

The Court's reasoning:

In Nevada, it is well-established law that in strict product liability failure-to-warn cases, the plaintiff bears the burden of production and must prove, among other elements, that the inadequate warning caused his injuries. Because a heeding presumption shifts the burden of proving causation from the plaintiff to the manufacturer, it is contrary to Nevada law. Rather than demanding that the plaintiff prove that the inadequate warning caused his injuries, a heeding presumption requires the manufacturer to rebut the presumption that the plaintiff would have heeded an adequate warning by demonstrating that a different warning would not have changed the plaintiff's actions. While other jurisdictions have permitted this shifting of the burden of production, we are unwilling to do so.

See Rivera v. Philip Morris, Inc., 125 Nev. Adv. Op. No. 18 (June 4, 2009) for the full opinion.

The San Jose Mercury released a helpful list of changes to Nevada law taking effect on July 1.

Among the new laws detailed by the AP article are the following:

-- AB10 protects nurses against retaliation for disclosing problems that endanger patients at hospitals or other medical facilities; and SB229 seeks to ensure that foreign-trained doctors who get visas to work in "medically underserved" areas actually provide care in those areas.

-- AB389 is aimed at helping to prevent identity theft by making less credit card information available on printed receipts. The new law prohibits printing more than the last five digits of credit card numbers and expiration dates on copies of customer and business receipts.

The Medicare, Medicaid and SCHIP Extension Act of 2007, or MMSEA, affects judgments and settlements involving Medicare liens. Plaintiffs and Defendant attorneys should be aware of the changes. Section 111 of the MMSEA adds reporting rules, requiring defendants and insurers to report judgments/settlements with Medicare beneficiaries to the Department of Health and Human Services.

Section 111 of MMSEA is directed at identifying claims where Medicare has a right of recovery. The mandatory reporting requirements allow the Centers for Medicare and Medicaid (CMS) to identify those claims. Section 111 applies to Group and non-Group Health Plans, workers' compensation, liability insurance, no-fault insurance, and self-insurers. All entities which pay settlements, judgments, awards or other payments to Medicare eligible beneficiaries beginning January 1, 2010 are required to report the claim to CMS.

For more info, you can visit the Centers for Medicare and Medicaid website.

The Las Vegas Sun reports that 2 cases of E. coli have been reported in Clark County, Nevada.

This comes days after the FDA issued a warning regarding Nestle Tollhouse raw cookie dough products due to the risk of E. coli. The warning cautions those who have purchased prepackaged cookie dough products to throw them away. Consumers should not even cook the dough, as the FDA warns that the bacteria may still get on consumers' hands and on cooking surfaces.

As of June 19, 2009, all of Nestle's prepackaged, refridgerated cookie dough products have been recalled. The products can be returned for a full refund. No other Nestle products have been affected.

According to the Centers for Disease Control and Prevention (CDC), the total number of cases of Swine Flu in the U.S. is up to 896. Forty-one states have been affected, including Nevada, and two people in the U.S. have died from the virus. The three states with the most reported cases are Illinois, California and New York.

The CDC is responding to the situation by striving to reduce the spread and severity of the illness by providing information to help health care providers, public health officials and the public deal with the specific challenges associated with the illness.

Among the CDC's efforts is the PCR diagnostic test kit, developed to aide health officials in detecting the virus. The kits have been distributed to all states in the U.S. and to Puerto Rico, as well as internationally. The CDC predicts that distribution of the kits and better detection of the virus will lead to an increase in reported cases, and thus give the CDC a clearer indication of the severity of the situation.

As of May 7, 2009, the number of reported cases in Nevada was up to seven. The two most recent cases were from Northern Nevada but officials say that the cases were mild and both patients have recovered.

On April 30, 2009, Governor Gibbons issued a Press Release urging Nevada residents to take extra precautions to avoid contracting the Swine Flu. Along with the traditional precautions of washing your hands and covering your mouth when you cough, the CDC has urged all U.S. residents to stay home from work or school if they feel sick, to avoid spreading the disease. 

A nonprofit Consumer's Union issued a report April 27, 2009, stating that over a one year period, almost 100,000 patients were subject to increased risks of infection following surgical procedures because of hospitals' failure to follow proven prevention practices.

According to the CDC (Centers for Disease Control), surgical infections account for 20% of all hospital-acquired infections and 8,205 patients die from surgical infections annually.

The Consumer's Union found that 445 hospitals across the country were in low compliance for administering antibiotics before surgery, a procedure "known for nearly 50 years" to be critical for the prevention of infection.

Nevada made the list of states with the highest percentage of low compliance for the practice of administering antibiotics within one hour before surgery to prevent infection and the practice of stopping antibiotics within 24 hours after surgery to prevent complications that contribute to antibiotic resistance. With regard to the practice of administering antibiotics pre-surgery, 30% of Nevada's hospitals were in low compliance, and 57% of Nevada's hospitals were in low compliance of the requirement to stop antibiotics within 24 hours after surgery.

It is difficult to place these numbers into context because not all states require hospitals to report infection rates. According to the Union's report, twenty-five states now require hospitals to report these statistics but Nevada is not one of them.

According to an article published on RGJ.com, Renown Regional Medical Center and Renown South Meadows Medical Center both made the list of low-complying hospitals. Gayle Hurd, who is the administrator for best practices at Renown Health reported that the health system has increased its compliance percentages by 30 points over the last six months.

According to the Union's report, 40-60 percent of all surgical infections could be prevented by following simple infection prevention procedures.