Perry Charnoff PLLC has launched!

Sorry, I have been away for awhile.  I am happy to report that I have started my own firm, called Perry Charnoff, PLLC.  We are a litigation boutique, where I will continue to focus on Plaintiff's litigation.  We are working diligently to get our website up and running.  Once we do, I will start blogging again.  Thanks for your patience.  Once the new site is up, come visit us at www.perrycharnoff.com

New System for Patients to Report Medical Errors

Before you hire a landscaper to mow your lawn, you probably do some reseach to find out about him: you talk to neighbors, you check our Angie's List or Yelp! or other such sites.  So you do an equally comprehensive search when considering what hospital to use for emergencies or for surgery, right?  If you are like most people, the answer is probably "no."  In fact, a recent study shows that many people simply go to the hospital that is the closest to them.

For a long time, it was very difficult to obtain information on a hospitals' performance.  But as a recent New York Times article reports, that may be changing.  See the attached article describing a new initiative to report medical errors.

Maryland Businesses Cannot Force Parents To Waive Their Children's Rights

Maryland Businesses Cannot Force Parents To Waive Their Children's Rights

Your child wants to do something fun -- like enjoy a water park, or learn how to ski -- but before she can, you, the parent, have to sign a waiver agreeing that the water park or resort is not responsible if your child gets hurt as a result of the business's negligence.  You sign the document (or sometimes agree to it just by paying money) and hope for the best.

Then the unthinkable happens -- your child is badly injured as a result of an employee's screw-up.  You have $1 million in unpaid medical bills and the business, although responsible for the injury, relies on the waiver and essentially says "Not my problem."


Until now, that has been the law in many states.  But a recent Maryland appeals court decision says:  "NO FAIR."  In a case called Rosen v. BJ's Wholesale Club, the appellate court found that the waiver is invalid. 

The Rosens brought their 5 year-old son to BJs, one of these giant warehouse clubs.  In order to induce parents to shop longer, the Club offered an inside-playground area for children, monitored by Club employees.  Before leaving their child in the playground, the Rosens were required to sign one of these long forms that, in tiny print, said they were letting the club off the hook for negligence.

Sadly, the little Rosen boy fell head first off a slide onto a concrete floor, suffering life-threatening brain injuries.  The Rosens sued, arguing that the Club should have had rubber mats or other soft material below the slide.  The Club argued that it could not be sued because of waiver that the Rosen's signed.  The trial court agreed and threw out the case.

The appellate court joined the "majority of states" that hold that a parent cannot prospectively waive a child's injury claim.  The court noted that while adults can waive their own negligence claims, waiving their child's claim is quite different.   The court noted that to rule otherwise would provide businesses with no incentive to keep children safe or take steps to protect them.  The court noted that commercial enterprises are in a better position than minor children to evaluate and eliminate hazards on their property, and to insure themselves against risks that cannot be altogether eliminated.

Mall & Convenience Store Liability -- a $2.6 million settlement

If you have followed my blog, you know that Virginia is a conservative jurisdiction.  Thus, a recent $2.6 million settlement of a wrongful death case arising from of the death of a woman who was abducted by thugs from a mall, forced to drive to a convenience store to buy beer and take money from an ATM, and who later died, is notable. 

In this case, a 61-year old woman was visiting a local mall in Fairfax County, Virginia.  While walking alone through the parking garage, two teenagers abducted her, using a toy gun they had purchased in the mall.  The teens forced the woman back into her car and told her to drive to a local convenience store, where they forced her to buy beer for them and to withdraw money from an ATM. They then returned to the car with the woman, and crashed it, killing the woman and one of the teen robbers.

The woman's family sued the mall, a security firm hired to provide security at the mall, and the convenience store owner.  The family argued that each had a duty to provide security.  Generally speaking (especially in Virginia), a business owner does not owe a duty to a customer to protect them from third-party criminal acts.  But there are exceptions, including where the business owner has reason to know that criminal activity is likely, or is occurring, and does nothing about it.

In this case, the family was able to show that there had been hundreds of reported crimes at the mall before the incident, and ten robberies in the preceding two years.  There was also evidence that the mall's management ignored reports from its general manager of recurring problems with gang violence.  As to the convenience store, the evidence was that a store customer noticed the situation when the woman came in, and told the store manager to call the police.  The store manager refused to call police.  (The security company was able to get out of the case.  In addition, the family's automobile insurance coverage was triggered given the involvement of the family vehicle).

Although it remains difficult to hold businesses liable for a third-party criminals acts, it is possible when the evidence supports that the business turned a blind eye to a dangerous situation. 

Are Hospital Emergency Rooms A Part of the Hospital?

When you need to go to an emergency room, the last thing on your mind is likely to be whether the emergency room is part of the hospital.  It is common sense; of course, the emergency room in the local hospital is part of the hospital, right?  Actually, the current trend in medical care is for hospitals to "contract out" emergency room care to an "emergency medicine group" who, in turn, staffs the physicians (and sometimes the nurses) in the emergency room.

This has become a hot-button issue in litigation when things go wrong in the emergency room.  If a lawsuit becomes necessary, you would assume that the hospital is responsible for mistakes that take place in its emergency room.  But this is not necessarily the case, and more and more hospitals are escaping liability for mistakes that occur in their emergency rooms on the theory that they do not control the physicians working in the emergency room.

In some states, like Virginia, this legal distinction is a virtual bar to holding the hospital responsible for errors that occur in their emergency room.  In other states, like Maryland, you can try to prove that you were unaware that the hospital contracted out the emergency room care.  But if the hospital can show that it alerted you to this legal distinction beforehand, then it might be off the hook.  And how have some hospitals chosen to warn the patient?  By noting it in the fine print among the multitude of pages you sign when you enter the emergency room.  And think about it, why do most people enter an emergency room?  Because they are extremely ill.....do you think they really have time to read and digest that fine print?  And even if they did, if it is a true emergency, does the patient really have a choice where to go?

So what is the big deal?  You can still sue the emergency medicine group that is providing the contract services, right?  Well, yes.  But if that group (as is often the case) has only limited insurance coverage, you are unlikely to be fully compensated for your injuries.

Manufacturer Hit With $5.5 Million Verdict In Vaginal Mesh Litigation

If you have never heard of vaginal meshes, it is probably a good thing.  Vaginal meshes are medical devices designed to help women whose organs drop from position, a common problem after childbirth.  The mesh is designed to hoist the organ back into place (think of a hammock strung between two trees).  Unfortunately, unknown to the 1000s of women who agreed to allow them to be implanted, the mesh can erode, cause scarring and has even been alleged to have caused organ perforation.  As a result, some women with meshes end up requiring 10 or even more corrective surgeries, and many are told "there is nothing we can do."  Thus, they must live with the intense pain, and inability to have intercourse absent extreme pain, not to mention other effects.

Over 650 lawsuits have been filed against the makers of the mesh, and on July 23, 2010, a jury in California awarded $5.5 million to a California couple in one of the first cases to go to trial.  Christine Scott, a formerly avid runner, had a mesh installed to correct a leaky bladder.  The mesh soon began cutting into her colon and tissue continued to grow through tiny holes in the mesh,causing intense pain.  After eight surgeries, she is still in tremendous pain.

As to the fact that the device has been FDA-approved, Ms. Scott's lawyer noted that "[t]hey tested this on 16 rats, 12 rabbits, four sheep and, by their own researcher's admission, the next living being this product went into was women."  For its part, the manufacturer continues to rely on the fact that the device is FDA-approved.  Good point:  do not assume that simply because a medical device or drug is approved the FDA that it cannot be dangerous.

Meanwhile, Ms. Scott who was under a gag order during the trial noted that "[t]he hardest part, I will tell you, though this whole thing, is having to keep quiet,watching women still get hurt."  It will be interesting to see what the manufacturer does for the affected women going forward.  Admit its mistake, and help them?  Or fight, fight, fight?

Anemia Drug Does Little, Harms Much.......But Was Worth Billions

There seems to be a drug for everything these days.   Indeed, there is a new drug on the market called Egrifta.  Its goal?  To treat excess belly fat in persons with HIV.  While drugs serve an obviously important purpose, do not forget the pofit motive behind them.  The Washington Post recently reported on a trio of anemia drugs (Epogen, Procrit & Aranep) that have been on the market for two decades that while earning their makers multi-billions in profit help very little, and potentially harm some patients.  The article is here: http://www.washingtonpost.com/business/economy/anemia-drug-made-billions-but-at-what-cost/2012/07/19/gJQAX5yqwW_story.html

A growing body of research has shown that the benefits of the drugs "were wildly overstated, and potentially lethal side effects, such as cancer and strokes, were overlooked."  Worse, the companies encouraged health care providers to prescribe larger and larger doses of the drug by incentivizing them with money.  How?  Simple.  They allowed doctors to make the drugs a profit center:  They could directly purchase the drugs.  The more the doctor bought, the more the pharma companies lowered the cost.  The patient, however, could be charged the same regardless of the cost, allowing the health care provider to profit on the "spread."  The article quotes the following amazing statement: "An oncologist could make anywhere from $100,000 to $300,000 a year from this alone."

It gets worse.  According to the article, when the FDA got wind of what was occurring and tried to crack down on the ever-increasing dosages, the pharmaceutical companies sent in their lobbyists, getting powerful senators and representatives to tell the FDA to back down.

The pharmaceutical companies have moved on to the next "big thing."  As for the families of the people who died, the article states it succinctly:  "What killed their loved ones -- the disease or the drugs they took to treat it?"