Recent Blog Posts in 2010

The Associated Press reports that U.S. Smokeless Tobacco Co. has settled a wrongful death lawsuit by agreeing to pay $5 million to the family of a 42-year-old man who died from tongue cancer after chewing spit tobacco since he was 13.

According to the article, this settlement is a first of its kind among suits against smokeless tobacco companies. Mark Gottlieb, Director of Tobacco Products Liability Project at Northeastern School of Law, was quoted as calling this settlement "a wakeup call to the plaintiff's bar that there are a lot of victims of smokeless tobacco use out there and it's possible these cases can be successful."

Attorney Antonio Ponvert III noted that "the settlement came as the tobacco industry tries to weaken proposed tougher warning labels on tobacco products and is marketing spit tobacco as a less harmless alternative to cigarettes."

While the National Highway Traffic Safety Administration works to increase awareness of the dangers of distracted driving, drivers will soon be updating Twitter and Facebook on the road.

As the Chicago Tribune reports, drivers of 2011 GM models may be tweeting and updating Facebook statuses through Onstar's voice-activated control of texts, e-mail and Web searches.

Apparently, Ford's SYNC infotainment system will not be implementing a Facebook function, although users will be able to connect to Twitter.

These are voice activated features, but does that make them safe? Or will accessibility to social media in the car increase distracted driving in 2011?

Last week, the Nevada Supreme Court addressed the appropriate analysis to determine what law governs in actions involving the diagnosis of slow-developing diseases. In Wyeth v. Rowatt, 126 Nev. Adv. Op. No. 44 (November 24, 2010), the Court adopted the "last event necessary" analysis.

In Nevada, choice of law determinations in personal injury cases are made by applying the "place-of-injury rule", unless a party presents evidence that another state has a more significant relationship with the alleged tortious conduct and the parties. In Wyeth, the Court took the opportunity to clarify the location of the place of injury in cases involving slow-developing diseases.

In Wyeth, three women used hormone therapy drugs manufactured by Wyeth and were eventually diagnosed with cancer. All three women were diagnosed with cancer in Nevada, but two of them had taken the drugs for years while residing in other states. Wyeth argued that the place of injury is the state where the disease process begins, as some courts have held.

However, the Court rejected Wyeth's argument. Instead, the Court adopted the "last event necessary" analysis, which recognizes the place of injury as the state where the slow-developing disease is first ascertainable. In this case, because the Plaintiffs were all diagnosed in Nevada, Nevada law governed.

The FDA is urging consumers to "get smart" about antibiotic use, to help combat antibiotic resistance.

Antibiotics are drugs used for treating infections caused by bacteria. Also known as antimicrobial drugs, antibiotics have saved countless lives.

Misuse and overuse of these drugs, however, have contributed to a phenomenon known as antibiotic resistance. This resistance develops when potentially harmful bacteria change in a way that reduces or eliminates the effectiveness of antibiotics.

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FDA NOTE TO CORRESPONDENTS

For Immediate Release: Nov. 15, 2010
Media Inquiries: Erica Jefferson, 301-796-4988, erica.jefferson@fda.hhs.gov
Consumer Inquiries: 888-INFO-FDA

FDA Urges Consumers to be 'Smart' about Antibiotic Use
Agency partners with CDC to kick off Get Smart about Antibiotics Week

This year, millions of antibiotics will be prescribed. Antibiotics can be used to treat bacterial infections; however, they are commonly over-prescribed. Patients sometimes ask their health care professional to prescribe antibiotic drugs for viral infections, like the common cold, despite the fact that they will not work and may lead to potentially harmful side effects. The misuse of antibiotics has contributed to one of the world's most pressing public health problems today, antibiotic resistance.

Antibiotic resistance occurs when bacteria change in a way that reduces or eliminates the effectiveness of antibiotic drugs.

The U.S. Food and Drug Administration has teamed up with the U.S. Centers for Disease Control and Prevention (CDC) and other health care professional, government, academic, international and industry partners to support Get Smart About Antibiotics Week (Nov. 15-21) as part of a joint effort to encourage the appropriate use of antibiotics.

In the first study of its kind, the RAND Institute for Civil Justice (ICJ) found that as adverse events in hospitals decreased, medical malpractice claims decreased as well.

While the study may seem to prove the obvious, no evidence affirming such a correlation had previously been documented.

In principle, improvements in health care quality, and in safety outcomes and practices in U.S. facilities, ought to have a positive impact on the volume of malpractice claims against physicians and institutions. Malpractice claims are supposed to spin out of legitimate injuries to patients, so reducing the occurrence of those injuries ought to have a corresponding effect on the volume of litigation. In practice, however, this association has not previously been demonstrated.

Despite its putative status, the link between safety outcomes and malpractice claims in U.S. hospitals and facilities is nevertheless potentially very important to policy. Such a link suggests that providers could improve their own malpractice risk by making health care safer; that the interests of patients and providers are potentially well aligned when risk is addressed in this way; and that policymakers might enact a new set of tools for reducing malpractice risk, focused on facilitating new patient safety interventions, quality-improvement activities, rootcause analysis efforts, and the like.

The results?

Our results showed a highly significant correlation between the frequency of adverse events and malpractice claims: On average, a county that shows a decrease of 10 adverse events in a given year would also see a decrease of 3.7 malpractice claims.

The study indicated the policy implications of the results;

From a policy perspective, the idea of a direct link between safety outcomes and the malpractice claims that spin out of them has several major implications. First is the premise that new safety interventions potentially can reduce the volume of malpractice litigation--a desirable result to seek out, even beyond the immediate impact of medical injuries avoided. Stated another way, improvements in safety performance have the potential to benefit both patients and providers and to align their interests while reducing litigation. A second implication is that the relationship between safety and malpractice is complex and not fully described by the simple notion of deterring acts of negligence through civil liability. Third is the observation that malpractice laws that place providers at risk for engaging in peer review risk-management activities, root-cause analysis, and the like, could have the perverse effect of detracting from broader patient safety efforts. In turn, that could increase the frequency of adverse events and preventable injuries and, indirectly, increase the volume of malpractice litigation itself.

These kinds of relationships and concerns represent an entirely different set of levers for policymakers to consider in regard to malpractice, quite apart from more conventional statutory tort interventions, such as caps on damages in tort claims.

For the full report, click here.

In Posas v. Hortan, 126 Nev. Adv. Op. No. 12 (April 15, 2010), the Nevada Supreme Court addressed when it is appropriate for a sudden emergency instruction to be given to a jury.

The case arose from an automobile accident. Nicole Horton rear-ended Amelia Posas when Posas stopped suddenly for a jaywalking pedestrian pushing a stroller. Horton, who was driving about three to four behind Posas, admitted that she was following Horton too close.

Posas filed suit against Horton as a result of the accident. At trial, the jury was given a sudden emergency instruction, despite Posas' objection, and the jury returned a verdict for Horton.

The sudden emergency instruction stated that "A person confronted with a sudden emergency which he does not create, who acts according to his best judgment or, because of insufficient time to form a judgment fails to act in the most judicious manner, is not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances."

The Court concluded that the jury instruction was given inappropriately. First, the Court concluded that Horton wasn't faced with a sudden emergency because she was not suddenly placed in a position of peril through no negligence of her own. Instead, the Court concluded that she placed herself in a position of peril through her own negligence. Further, the Court stated that in order to request the sudden emergency instruction, the requesting party must have been affected by the emergency. The Court noted that if an emergency situation had been created by the pedestrian, it would have been an emergency that confronted Posas, not Horton.

The Court clarified that the sudden emergency instruction is only appropriate when (1) unexpected conditions confront the actor requesting the instruction and (2) the actor was otherwise exercising reasonable care.

Hydrolyzed vegetable protein (HVP) is a flavor enhancer contained in a large amount of processed foods. The FDA has been investigating the finding of salmonella in HVP manufactured in Las Vegas, by Basic Food Flavors, Inc. The contaminated HVP affects hundreds of food products, but no reports of illness have been reported to the FDA.

The investigation has resulted in preventative and voluntary recalls of bouillon products; dressings and dressing mixes; flavoring and seasoning products; frozen foods; gravy mix products; prepared salads; ready-to-eat products; sauces and marinade mixes; snack and snack mix products; soup and soup mixes; dip and dip mixes; spreads; and stuffing products. and Dip/Dip Mix Products.

The brands affected by the recall include Herbox; Follow Your Heart; Reser's; Trader Joe's; Garden Harvest; Minor's; Publix; Casa Solana; E-Z Eats!; El Pasado; Giant Eagle; Jose Ole; Posada; Tornados; McCormick; Durkee; French's; Weber; Austinuts; Barcel; CVS; Great Nut Supply; HK Anderson; Hawaiian; Herr's; National Pretzel Company; President's Choice; Pringles; Quaker; Rouses Louisiana's Best; Safeway; Spec's Wines & Fine Foods; Sunflower Markets; Castella; Concord Foods; Culinary Circle; De la Casa; Dean's; Delicioso; Fresh Food Concepts; Great Value; Healthwise; Homemade Gourmet; Johnny's Fine Foods; Kroger; Mrs. Gerry's; Oak Lake Farms; Produce Valley; Rojo's; T. Marzetti; and Spreadables.

For the FDA database of recalled foods, click here. For the FDA searchable database, click here.

The Las Vegas Sun reports that the Ninth Circuit Court of Appeals upheld a Nevada law restricting advertising for brothels. The law was challenged under the First Amendment for violating the right to free speech.

The Nevada law prohibits brothels from advertising in any county where the sale of sexual services is prohibited by state law or local ordinance. The law also limits advertising in counties where brothels are legal: advertisements are prohibited in public theaters, on the public streets of any city or town, or on any public highway.

The court found that the law targets pure commercial speech, which enjoys less protection under the First Amendment than other types of speech. The court held that the restrictions imposed by the law are constitutional, because they "attain a reasonable fit between ends and means."

The court stated, "By keeping brothel advertising out of public places where it would reach residents who do not seek it out, but permitting other forms of advertising likely to reach those already interested in patronizing the brothels, Nevada strikes a balance between its interest in maintaining economically viable, legal regulated brothels and its interest in severely limiting the commoditization of sex."

NRS 41.133 states that when "an offender has been convicted of the crime which resulted in the injury to the victim, the judgment of conviction is conclusive evidence of all facts necessary to impose civil liability for the injury."

In Cromer v. Wilson, 126 Nev. Adv. Op. No. 11 (March 11, 2010), the Nevada Supreme Court addressed the effect of this conclusive evidence of liability on the issues of comparative negligence and damages. The defendant was convicted of felony DUI and felony reckless driving in an accident that severely injured the plaintiff.

The district court had allowed the jury to decide the issue of liability instead of granting the plaintiff's motion for summary judgment. The jury found the defendant liable. In determining liability, the jury was allowed to consider comparative negligence, and it found the plaintiff 25% at fault and the defendant 75% at fault. The jury returned a verdict in favor of the plaintiff and awarded $4,530,785.50 in damages.

On appeal, the Nevada Supreme Court held that NRS 41.133 establishes a conclusive presumption of liability when an offender has been convicted of the crime that resulted in the injury to the victim. Thus, the district court should have granted the plaintiff's motion for summary judgment on the issue of liability, and the trial should have resolved only the issue of damages.

However, the Court also held that NRS 41.133 does not abrogate the law regarding comparative negligence or damages. Therefore, while NRS 41.133 establishes a conclusive presumption of liability, a defendant may argue comparative negligence pursuant to NRS 41.141 to reduce an award of damages at a trial as to damages only.

According to the Reno Gazette Journal, the Reno Police are relaunching a $36,000 campaign to increase traffic safety. Under the campaign, pedestrians and bicyclists may receive citations for violating safety laws.

Reno Wheelmen official Spencer Ericksen estimates that 25 percent of bicyclists regularly break traffic laws.

Common problem areas are bicyclists failing to stop at stop signs, riding against traffic, and riding on sidewalks. Bicyclists are not allowed to ride on sidewalks in downtown Reno, but they can ride on sidewalks elsewhere as long as they yield to pedestrians.

The Reno Police Dept. offers tips to bicyclists and motorists:

Bicyclist safety tips:

• Ride with traffic, not against it.
• Make turns the same way drivers do, using the same turn lanes.
• Signal turns.
• Maintain bicycles, including checking brakes and tires.
• In darkness, use good reflectors and wear bright clothing.
• Wear helmets.
• Use a rear view mirror attached to a helmet, glasses or handle bars.

Motorist Safety Tips

• Look for bicyclists before opening car doors when parked on the street.
• Do not overtake a bicyclist and make a right turn in front of the bicyclist.

The Nevada Supreme Court addressed the applicability of NRS 41A.097, Nevada's medical malpractice statute of limitations, to equitable indemnity and contribution claims.

In Saylor v. Arcotta, 126 Nev. Adv. Op. No. 9 (March 4, 2010), a taxicab passenger was injured when his cab was in an accident. The passenger died during surgery after being hospitalized for a heart attack two weeks after the taxicab accident.

The passenger's heirs sued Jack Saylor, the taxicab driver, and the cab company, Deluxe Taxi Cab Service. Saylor and the Deluxe Taxi learned through discovery that medical malpractice may have been the cause of the passenger's death. Saylor and Deluxe Taxi filed a third-party complaint against the passenger's treating physicians, respondents Dr. Karen Arcotta, Dr. Muhammad Bhatti, and Dr. Nancy Donahoe, for equitable indemnity and contribution.

The one year statute of limitations for medical malpractice imposed by NRS 41A.097 had already passed. The issues presented to the Court were what limitations period applied to the third-party actions for equitable indemnity and contribution.

Equitable Indemnity

The Court held that "equitable indemnity claims that arise out of medical malpractice allegations are not subject to NRS 41A.097(2)'s limitations period for medical malpractice claims, but are instead subject to NRS 11.190(2)(c)'s limitations period for actions on implied contracts."

Contribution

The Court explained that "a contribution claim arises 'where a judgment has been entered in an action against two or more tortfeasors for the same . . . wrongful death.' " Pursuant to NRS 17.285(3), a contribution claim must be filed within 1 year after the judgment has become final by lapse of time for appeal or after appellate review.

Thus, the Court concluded that "once a contribution claim arises, it is subject to a one-year statute of limitations."

Click here for the Advanced Opinion

22% of Nevada motorists are uninsured, according to Jim Gibbons' chief of staff, Robin Reedy.

According to Chicago company InsureNet, Nevada could raise $30 million by using InsureNet's system of photographing license plates to identify uninsured and unregistered vehicles.

The proposal was rejected on Wednesday.

The Law Vegas Review Journal reports that Nevada fines its motorists $250 for driving while uninsured and $500 for driving without valid registration, but the offenders are difficult to catch.

According to the journal, "critics raised the privacy issue, although a spokesman for InsureNet said any information collected by the company would go into a national law enforcement computer network, and the company itself would not retain the information."

No other state currently uses InsureNet to verify the insurance status of motorists. 

A class action lawsuit has been filed in a Philadelphia suburb against a school district that provided students with laptops installed with webcams. The problem? The 2,300 laptops' webcams were remotely accessible by school officials.

According to Law.com, the lawsuit discusses the "school district's official announcement of the launch of a program to provide every student with a laptop, which billed it as 'an authentic mobile 21st century learning environment' designed to ensure that 'all students have 24/7 access to school based resources.' "

The AP reports that the webcams would only be activated by the schools' technology and security departments when a laptop was reported lost or stolen.

The suit was filed by student Blake Robbins and his parents after Robbins was confronted by the assistant principal at his high school. The assistant principal allegedly told Robbins that he had been caught doing something inappropriate at home. The lawsuit doesn't indicate whether Robbins' laptop had been reported lost or stolen.

The suit alleges violations of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, the Stored Communications Act, and Pennsylvania's wiretap statute. It also alleges violations of the Fourth Amendment, and federal civil rights laws.

A Texas nurse who notified the state medical board of a doctor's unsafe practices found herself on trial for a third-degree felony with the possibility of up to ten years in jail and up to a $10,000 fine.

The prosecution's theory? The charge was for "misuse of official information," and the prosecution claimed that nurse Anne Mitchell used "her position to obtain and disseminate confidential information -- patient file numbers -- in her letter to the medical board with the intent of harming Dr. Rolando G. Arafiles Jr."

According to the NY Times, "The uncommon prosecution had ignited deep concern among health care workers and advocates for whistle-blowers about a potential chilling effect on the reporting of malpractice."

Mitchell was acquitted after jury deliberations of only one hour. The NY Times reports that "Rebecca M. Patton, president of the American Nurses Association, called the verdict 'a resounding win on behalf of patient safety.' Ms. Patton said, 'The message the jury sent is clear: the freedom for nurses to report a physician's unsafe medical practices is non-negotiable.' "

Mitchell has filed a civil complaint in federal court against the county and the hospital, seeking redress for violations of her due process rights, freedom of speech, violation of a Texas whistleblower statute, and tortious interference with business, among other things. 

Since 2004, Nevada statute has limited jury awards in medical malpractice actions to $350,000 for noneconomic damages, such as pain and suffering.

Illinois has a similar statute, which limits noneconomic damages to $500,000 for doctors and $1 million for hospitals.

Today, the Illinois Supreme Court ruled that the Illinois statute limiting damages was unconstitutional. As the Chicago Tribune notes, the Court struck down the under the Illinois Constitution because it "violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts."

While the parties arguing for upholding the statute cited the several states which have enacted medical malpractice damage caps, the Illinois Supreme Court refused to uphold the statute based on the status quo. According to the Court's opinion, "That 'everybody is doing it," is hardly a litmus test for the constitutionality of the statute." 

In further attempts to combat the dangers of distracted driving, The U.S. Dept. of Transportation has prohibited commercial drivers from texting while driving.

Commercial drivers include drivers of interstate buses and trucks over 10,000 pounds. Drivers who violate the ban may be subject to civil or criminal penalties of up to $2,750.

The USDOT press release cited the dangers of texting while driving as the motivation for the ban:

Federal Motor Carrier Safety Administration (FMCSA) research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers. Because of the safety risks associated with the use of electronic devices while driving, FMCSA is also working on additional regulatory measures that will be announced in the coming months.

As of February 2010, according to the Governor's Highway Safety Association, many states prohibit or limit the use of cell phones while driving.

The GHSA reports the state laws currently in effect:

• Handheld Cell Phone Bans for All Drivers: 6 states (California, Connecticut, New Jersey, New York, Oregon and Washington), the District of Columbia and the Virgin Islands prohibit all drivers from talking on handheld cell phones while driving.
• With the exception of Washington State, these laws are all primary enforcement--an officer may ticket a driver for using a handheld cell phone while driving without any other traffic offense taking place.
• All Cell Phone Bans: No state completely bans all types of cell phone use (handheld and hands-free) for all drivers, but many prohibit cell phone use by certain segments of the population.
• Novice Drivers: 21 states and the District of Columbia ban all cell use by novice drivers.
• School Bus Drivers: In 17 states and the District of Columbia, school bus drivers are prohibited from all cell phone use when passengers are present.
• Text Messaging: 19 states, the District of Columbia and Guam now ban text messaging for all drivers. Fifteen states, D.C., and Guam have primary enforcement. In the other four states, all driver texting bans are secondarily enforced. Some states have limited texting bans.
• Novice Drivers: 9 states prohibit text messaging by novice drivers.
• School Bus Drivers: 1 state restricts school bus drivers from texting while driving.

Nevada, however, is one of six states that has preemption laws that prohibit local jurisdictions from enacting cell phone and/or texting while driving bans.