$3,500,000 Verdict in Unsafe Truck – Personal Injury Case

posted on:
April 26, 2010

author:
Staff

category:
Personal Injury and Product Liability | Landmark Verdict

A Chilton County jury awarded the Sanderson family of Clanton, Ala., a verdict of $3.5 million for the death of James Sanderson, who was killed in January 2008 in Elmore County, Ala., when the van he was driving was crushed between two logging trucks. Beasley Allen attorneys Benjamin E. Baker and J. Cole Portis represented the Sanderson family, including James Sanderson’s widow, Annie M. Sanderson, and children, Derek, Josh and Amy Sanderson; against defendants Ken Gorum Trucking and Gary Fruge. The evidence showed that the Gorum truck was being operated at a high rate of speed, with inoperable and defective brakes, in violation of Alabama law. The jury was asked to return a verdict to preserve human life and discourage similar acts in the future in accordance with Alabama law. Prior to trial, Progressive Insurance Company, the insurance company for the defendants, refused to settle the case.

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European, American officials to decide on fate of Roundup chemical glyphosate

posted on:
October 23, 2017

author:
John Tomlinson

category:
Environmental

john tomlinson European, American officials to decide on fate of Roundup chemical glyphosateMonsanto’s cash cow herbicide Roundup is now making waves both in the United States and across the pond. Documents brought to light in American court cases have European officials investigating the truth of Monsanto’s safety claims, further entangling the company in its misdeeds ahead of government decisions on the safety of glyphosate, the weed killer’s main ingredient.

Glyphosate has been linked to the development non-Hodgkin’s lymphoma (NHL). Court cases alleging the connection unsealed documents showing collusion between Monsanto and Environmental Protection Agency (EPA) officials to kill a review of the ingredient and evidence the company ghost-wrote research on the weed killer’s safety that was later attributed to academics.

The more than 45 lawsuits consolidated as part of multidistrict litigation (MDL) in the United States District Court for the Northern District of California come as the state won its own suit against Monsanto to list glyphosate as a human carcinogen and force it to place a warning label on the product.

The unsealed court documents caught the attention of European Parliament. Its environmental and agriculture committees organized a public hearing Oct. 11 titled, “The Monsanto papers and glyphosate.” Monsanto refused to attend the hearing after being summoned because it “could be viewed as the latest attempt by those opposed to modern agricultural practices to influence and frustrate the EU scientific and regulatory process to suit their own agenda,” according to The Guardian.

In an unprecedented move, members of European Parliament (MEPs) subsequently voted to ban Monsanto’s lobbyists from entering. It’s the first time MEPs have used new rules to bar parliamentary access to those that ignore a summons.

Both the EPA and the European Commission (EC) are expected to provide input on glyphosate by the end of the year, according to the Natural Resource Defense Council (NRDC). Due to public outcry, the EC did not extend its approval of the use of glyphosate for 15 years as is typical but instead extended it for two years until December 2017, when it must again vote to extend approval.

The EPA is expected to make its determination of glyphosate as a carcinogen by the end of the year as well. The NRDC states on its website that European restrictions on Monsanto “would have a potentially profound effect upon glyphosate-related policies here in the U.S., where EPA appears to still be taking its cues from Monsanto.”

* * *

Beasley Allen lawyer John Tomlinson practices in our Toxic Torts Section and is actively investigating cases where landscapers, farmers, groundskeepers or commercial gardeners used commercial grade Roundup and developed non-Hodgkin’s lymphoma. He can be reached at 800-898-2034 or john.tomlinson@beasleyallen.com.

Sources:
The Guardian
NRDC

Free Legal Consultation
At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

Sleep apnea testing aims to improve truck driver safety

posted on:
October 19, 2017

author:
Chris Glover

chris glover Sleep apnea testing aims to improve truck driver safetyA 2016 Harvard study found truck drivers with obstructive sleep apnea (OSA) that failed to adhere to treatment were five times more likely to be involved in a preventable crash. Combine that with Federal Motor Carrier Safety Administration (FMCSA) statistics stating 28 percent of commercial truck drivers suffer from mild to severe sleep apnea, and it should be clear that the trucking industry has an issue. That’s more than a quarter of truck drivers on the road suffering from a serious, potentially life-threatening condition that impacts job performance.

This issue doesn’t just affect commercial truck drivers. In light of deadly commuter train crashes linked to sleep apnea, the FMCSA and the Federal Railroad Administration issued a pre-rule notice in March 2016 seeking “data and information concerning the prevalence of moderate-to-severe obstructive sleep apnea among individuals occupying safety sensitive positions in rail and highway transportation” to determine the need for “regulatory action to ensure consistency in addressing the safety issue presented by transportation workers with safety sensitive duties who are at risk for OSA.”

The proposal was nixed by the Trump administration in August, but senators in both the House and Senate introduced bills at the end of September to advance sleep apnea testing rules. The new bills could force the Department of Transportation (DOT) to require sleep-apnea testing and treatment for truck drivers and railroad engineers.

“Whether on the roads or the rails, the safety of the traveling public must be our highest transportation priority,” Sen. Menendez, ranking member of the Senate’s mass transit subcommittee and a co-sponsor of the Senate bill said in a press release. “This legislation would address that failure and implement this commonsense public safety policy to protect riders, save lives and make our rails and roadways safer.”

Sleep apnea is a disorder that causes brief breathing interruptions during sleep. The pauses can last upwards of 10 seconds and occur up to 400 times a night. It can severely impact restfulness, and therefore alertness and performance.

The FMCSA states on its website: “While FMCSA regulations do not specifically address sleep apnea, they do prescribe that a person with a medical history or clinical diagnosis of any condition likely to interfere with their ability to drive safely cannot be medically qualified to operate a commercial motor vehicle (CMV) in interstate commerce. However, once successfully treated, a driver may regain their ‘medically-qualified-to-drive’ status.”

An estimated 85 percent of those suffering from sleep apnea do not receive a diagnosis, though, and this calls into question how likely it is a truck driver with OSA would actually receive the care he or she needs to be truly able to perform the job safely. Even if they are receiving treatment and that does help prevent fatigue-related accidents, it does not guarantee OSA will not negatively impact drivers on the job.

As with any policy or administration change, the safety of the public should take priority. If more than a quarter of truck drivers suffer from a disease that makes the roads we all share more dangerous, the issue must be addressed.

* * *

For more information about regulation surrounding truck accident litigation, contact Chris Glover, an attorney in our Atlanta office who handles personal injury claims. Chris recently wrote a book on truck accident litigation, An Introduction to Truck Accident Claims: A Guide to Getting Started. This book is available free to attorneys. To request a copy or download a digital copy, visit www.ChrisGlover-law.com/book. You may contact Chris by calling the firm at 800-898-2034 or email him directly at Chris.Glover@beasleyallen.com.

Sources: FMCSA, Sen. Cory Booker, National Institutes of Health

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At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

First bellwether trial in Cook Medical IVC Filter MDL to begin next week

posted on:
October 18, 2017

author:
Melissa Prickett

melissa prickett1 First bellwether trial in Cook Medical IVC Filter MDL to begin next week The first bellwether trial in the Cook Medical IVC Filter multidistrict litigation (MDL) is slated to begin next week and involves Elizabeth Jane Hill, the San Diego Legal Examiner reports.

The MDL was established in 2014 and includes 2,650 claims, according to the U.S. Judicial Panel on Multidistrict Litigation. Hill and the other plaintiffs argue that Cook Medical failed to warn them about the risks of retrievable inferior vena cava, or IVC, filters.

Hill’s experience demonstrates those risks, including a high risk that the device will deteriorate and that fragmented pieces could travel through the body puncturing organs and causing other potentially life-threating injuries. Because of these risks, the devices have been called “deadly missiles.”

In August 2010, the U.S. Food and Drug Administration (FDA) warned that retrievable IVC filters should be implanted only for short-term use because of their tendency to deteriorate and fracture over time.

As previously described by Beasley Allen, IVC filters are cage-like devices implanted in the inferior vena cava – the body’s largest vein. The devices are used to catch blood clots before they reach vital organs such as the heart and lungs. These devices are used when blood thinners are not an option.

Prior to back surgery, Hill was implanted with a Cook Celect IVC filter as a precautionary measure. However, her vena cava and small intestine were perforated when the filter migrated. The filter was finally removed two years after it was implanted by using advanced retrieval techniques and following at least one failed retrieval attempt.

* * *

If you would like more information about IVC filters, contact Melissa Prickett, a lawyer in our Mass Torts Section, at 800-898-2034 or by email at Melissa.Prickett@beasleyallen.com.

Sources:
San Diego Legal Examiner
U.S. Judicial Panel on Multidistrict Litigation
Beasley Allen

Free Legal Consultation
At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

Protecting loved ones in nursing homes

posted on:
October 17, 2017

author:
Chris Boutwell

 Protecting loved ones in nursing homesAs Beasley Allen has previously discussed, long-term care facilities, including nursing homes, are rife with abuse and neglect and alarmingly high rates of underreporting. Amid these mounting concerns, industry lobbyists continue fighting to roll back federal rules that protect the rights of residents (or their families and caregivers) to take nursing homes to court. While consumers’ options to hold nursing facilities accountable for the pain and suffering caused by their actions are limited, there are steps they can take to better protect themselves and their loved ones.

Research the health and safety records of nursing homes
Identifying a quality nursing home is challenging, and consumers should not rely on the star rating program, the Jere Beasley Report has explained. Rather, they can search for facilities by name or location on the Medicare website to review a summary of the nursing home’s latest inspection. Details of other inspections are also available and provide information about the health and safety of residents and the quality of residential care.

The Jere Beasley Report also discusses the importance of consumers arming themselves with information such as the corporate structure and history of a company providing the care. Researching what kind of incidents have been reported and how they were handled by the facility can also give prospective residents an idea of a facility’s environment and the quality of care.

Watch for and report signs of abuse or neglect
Nursing homes must meet a proper standard of care as established by law. Signs and symptoms of abuse or neglect include:

Physical Abuse

  • bruises, black eyes, welts, lacerations, and rope marks;
  • bone fractures, broken bones, and skull fractures;
  • open wounds, cuts, punctures, untreated injuries in various stages of healing;
  • sprains, dislocations, and internal injuries/bleeding;
  • broken eyeglasses/frames, physical signs of being subjected to punishment, and signs of being restrained;
  • laboratory findings of medication overdose or under-utilization of prescribed drugs;
  • an elder’s report of being hit, slapped, kicked, or mistreated;
  • an elder’s sudden change in behavior; and
  • the caregiver’s refusal to allow visitors to see an elder alone.

Sexual Abuse

  • bruises around the breasts or genital area;
  • unexplained venereal disease or genital infections;
  • unexplained vaginal or anal bleeding;
  • torn, stained, or bloody underclothing; and
  • an elder’s report of being sexually assaulted or raped.

Emotional or psychological abuse

  • being emotionally upset or agitated;
  • being extremely withdrawn and non-communicative or non-responsive;
  • unusual behavior usually attributed to dementia (e.g., sucking, biting, rocking); and
  • an elder’s report of being verbally or emotionally mistreated.

Neglect

  • dehydration, malnutrition, untreated bed sores, and poor personal hygiene;
  • unattended or untreated health problems;
  • hazardous or unsafe living condition/arrangements (e.g., improper wiring, no heat, or no running water);
  • unsanitary and unclean living conditions (e.g. dirt, fleas, lice on person, soiled bedding, fecal/urine smell, inadequate clothing); and
  • an elder’s report of being mistreated.

If you believe a resident is subject to abuse or neglect, document the signs and contact local law enforcement authorities or dial 911 if there is an urgent need for assistance. You can also report incidents to the state long-term care ombudsman.

Learn more about the federal Ombudsman Program
Volunteers in every state are selected and specially trained by U.S. Department of Senior Services’ Agency on Aging to serve as local and state ombudsmen for nursing home residents and their families, according to the Jere Beasley Report. The ombudsmen visit with and advocate for residents. They are authorized to investigate and attempt to informally resolve complaints on behalf of residents. They also provide information about residents’ rights and quality care standards and other critical functions including collecting data on facilities. They “serve as a third-party mechanism for protecting the health, safety, welfare, and human rights” of the residents they represent.

* * *

If you need more information on nursing home litigation contact Chris Boutwell at 800-898-2034 or by email at Chris.Boutwell@beasleyallen.com. Chris handles nursing home litigation for our firm, and he will be glad to talk with you.

Sources:
Beasley Allen
Jere Beasley Report
Medicare
Long-Term Care Ombudsman
Sacramento Bee

Free Legal Consultation
At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

Petrochemical workers’ benzene exposure risk likely higher after Hurricane Harvey

posted on:
October 16, 2017

author:
John Tomlinson

category:
Environmental

john tomlinson Petrochemical workers’ benzene exposure risk likely higher after Hurricane HarveyAs Hurricane Harvey tore through Texas in August, the focus was on the more immediate effects. Now that the waters have subsided and clean-up and rebuilding efforts are underway, the longer-term effects have taken center stage.

Among them is the heightened risk petroleum industry workers face of being exposed to the carcinogen benzene. The occupation is already at a high risk of exposure, which is a cause for cancers of the blood including Acute Myeloid Leukemia, Myelodysplastic Syndrome, lymphomas and aplastic anemia, as Beasley Allen had explained.

More than a dozen petrochemical plants reported “damaged storage tanks, ruptured containment systems and malfunctioning pressure relief valves” because of the natural disaster, according to the Houston Chronicle. The full impact of the damage may not be completely realized for months.

In the meantime, experts are concerned that recent budget cuts to the Occupational Safety and Health Administration’s (OSHA’s) budget slashed the number of inspectors, effectively reducing the available resources necessary to inspect companies for worker safety violations. The agency is a section of the U.S. Department of Labor, which officially halted workplace inspections in Harvey-affected areas with no indication of when the inspections will resume.

Experts are also concerned that normal procedures will be lax during the “emergency situation.” Those procedures include measures designed to help reduce workers’ benzene exposure.

Benzene is a sweet-smelling toxic chemical, and exposure occurs when the toxin is inhaled or absorbed through the skin or eyes. Petroleum refining and extraction workers are at an increased risk of exposure because the chemical is a byproduct of the oil-refining processes, the National Center for Biotechnology Information explains.

Prolonged exposure to benzene can cause Myelodysplastic Syndrome (MDS), which is a group of bone marrow disorders that can progress to Acute Myeloid Leukemia (AML). A person may experience AML symptoms gradually and, initially, they may not connect the symptoms to AML, but blood tests may reveal a reduced red cell count, sometimes with a reduced white cell count and/or reduced platelet counts. These tests, along with bone marrow tests, are used to diagnose AML.

* * *

If you would like more information about benzene exposure and benzene-related cancers such as AML, you can contact John Tomlinson, a lawyer in our Toxic Torts Section. He can be reached at 800-898-2034 or by email John.Tomlinson@beasleyallen.com. You can also find more information at www.benzene-exposure.com.

Sources:
Houston Chronicle
Beasley Allen
National Center for Biotechnology Information

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At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

Whistleblower’s False Claims Act case jumps arbitration hurdle

posted on:
October 13, 2017

author:
Archie Grubb

category:
Fraud

archie grubb1 Whistleblower’s False Claims Act case jumps arbitration hurdleA whistleblower suing a Nevada pediatric therapy chain on behalf of the U.S. scored a victory earlier this month when the Ninth Circuit Court of Appeals refused the defendant’s motion to force the dispute into arbitration.

The Ninth Circuit denied a motion to compel arbitration by My Left Foot Children’s Therapy LLC, a small, family-owned company that provides functional therapy to children in the Las Vegas area.

The Las Vegas-based company is being sued by a former employee of My Left Foot under the whistleblower provisions of the False Claims Act (FCA). The whistleblower alleges the company submitted fraudulent claims to Medicaid for reimbursement. Both the U.S. and the state of Nevada support the claims.

On October 19, 2015, the defendants moved to compel arbitration of the whistleblower lawsuit pursuant to the Federal Arbitration Act and the company’s arbitration agreement with the whistleblower, which she signed as a condition of employment. The plaintiff, the U.S. government, and State of Nevada opposed the motion.

On June 13, 2016, the U.S. District Court for the District of Nevada denied the Defendants’ motion to compel arbitration on the grounds that the agreement did not extend to the U.S. or Nevada, which owned the underlying FCA claims.

The Court found that the FCA suit wasn’t necessarily connected to the whistleblower’s employment and that she would have been able to bring the FCA suit regardless of whether she was employed by the defendants.

Similarly, just because the employee observed the fraudulent conduct while employed does not mean that the observation was related to her employment because she could have made the same observations in a non-employee capacity,” the Ninth Circuit found.

The False Claims Act authorizes whistleblowers to file suit on behalf of the U.S. government. In light of that, the whistleblower’s complaints is in this case are not an employee’s personal dispute with the employer as much as they are the government’s complaint.

Accordingly, the Ninth Circuit concluded that the FCA claims were not arbitrable on this basis … because the “underlying fraud claims asserted in a FCA case belong to the government and not to the relator.”

* * *

Are you aware of fraud being committed against the federal government, or a state government? If so, you may be protected and rewarded for doing the right thing by reporting the fraud. If you have any questions about whether you qualify as a whistleblower, please contact an attorney at Beasley Allen for a free and confidential evaluation of your claim. There is a contact form on this website, or you may email one of the lawyers on our whistleblower litigation team: Archie Grubb, Larry Golston, Lance Gould or Andrew Brashier.

Source: Complaint

Free Legal Consultation
At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

Fall protection violations head 2017 OSHA employer citation Top 10 list

posted on:
October 12, 2017

author:
Kendall Dunson

kendall dunson Fall protection violations head 2017 OSHA employer citation Top 10 listThe preliminary results are in: fall-protection violations are the most common reason employers received a citation from the Occupational Health and Safety Administration (OSHA) in 2017. The findings continue to highlight the potentially grave consequences of not properly training and protecting employees.

In OSHA’s preliminary Top 10 Most Cited Violations report for fiscal year 2017, which ended Sept. 30, a total of 6,072 violations were issued for general requirement fall protections. Fall protection violations were followed by 4,176 hazard communication violations, 3,288 scaffolding violations, 3,097 respiratory protection violations and 2,877 lockout/tagout violations to round out the top five, according to the National Safety Council’s Safety + Health magazine. Other violations on OSHA’s top 10 list include ladder, power industrial truck, machine guarding, fall-protection training requirements, and electrical wiring method violations.

“One thing I’ve said before in the past on this is, this list doesn’t change too much from year to year. These things are readily fixable,” Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, said when the numbers were announced at the 2017 National Safety Council’s Congress & Expo.

Indeed, the order of last year’s top five list and 2015’s list and 2014’s are mirror images of this year’s top 5 list. The next year with order variation is 2013, and that’s for the No. 5 position.

The fact that the same fixable violations are included repeatedly on the list should be a cause for concern. Employees have the right to work in a safe environment, and these repeated violations point to systemic issues that threaten worker safety.

It should come as no surprise with fall protections leading the violation list that most of the deaths in the construction industry in 2015, the latest year data is available, occurred due to falls. That is not a random coincidence. It proves the need for employee safety regulations.

In the midst of deregulation and budget cuts, workers are the ones who truly suffer. It’s easy to forget that OSHA regulations are in place to ensure workers make it home unharmed each evening. When employers violate OSHA laws, it’s employees who pay the price.

OSHA’s Top 10 Most Cited Violations report with 2017’s confirmed data will be published in the December edition of Safety + Health magazine.

* * *

If you have any questions about whether a serious work-related injury could qualify for compensation, please contact Kendall Dunson, an attorney in our Personal Injury section, for a free and confidential evaluation of your claim. He can be reached at 800-898-2034 or email Kendall.Dunson@beasleyallen.com.

Sources:
National Safety Council’s Safety + Health
Beasley Allen Law Firm

Free Legal Consultation
At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

Litigation alleges GSK profits off billions in Zofran sales, subjects parents to unnecessary loss

posted on:
October 11, 2017

author:
Liz Eiland

liz eiland Litigation alleges GSK profits off billions in Zofran sales, subjects parents to unnecessary lossThe loss of a child is unfathomable and, in 1988, President Ronald Reagan proclaimed October as National Pregnancy and Infant Loss Awareness Month to recognize the loss, the event’s official website explains. The loss is intensified when the conditions that contributed to the child’s death were unnecessary and completely preventable. Such is the case for many families who have suffered the loss of a child due to in utero exposure to Zofran, which is manufactured by pharmaceutical giant GlaxoSmithKline (GSK).

Patrick and Valerie Reagan’s daughter, Molly, was just 3 days old when she died, the Consumer Justice Foundation says. The Reagans believe Molly’s fetal exposure to Zofran caused her birth defects that led to her death. Valerie was prescribed Zofran to help treat morning sickness while she was pregnant.

Similarly, Holly L. Estapa was also prescribed Zofran for the same condition during her pregnancy. She and Martin W. Hauger filed suit shortly after the birth of their twins, B.A. and B.B. One of the twins, B.A., was stillborn while the other twin B.B. was born with a heart defect that may require future surgeries, as well as monitoring and treatment. They also argue that the in utero exposure to Zofran was the cause of B.A.’s death and B.B.’s heart defect.

They are not alone.

The U.S. Judicial Panel on Multidistrict litigation reports that 415 lawsuits have been consolidated in the Zofran multidistrict litigation (MDL) established in the U.S. District for the District of Massachusetts. Beasley Allen has previously explained that the underlying claim is that Zofran causes birth defects in babies born to women who used the drug while pregnant. Often, women are not told of the potential dangers Zofran presents to their unborn children.

The Food and Drug Administration approved Zofran, which contains the drug ingredient ondansetron, in 1991 to treat nausea and vomiting in cancer patients receiving chemotherapy. It has never been approved to treat morning sickness, yet GSK’s profits from Zofran alone were more than $1 billion because of the prevalent off-label use to treat morning sickness during pregnancy.

In 2012, the U.S. Department of Justice (DOJ) claimed GSK directly marketed Zofran to obstetricians and gynecologists with unsupported claims about its safety during pregnancy, according to the Legal Herald. Although it is legal for doctors to prescribe drugs for off-label use, it is not legal for drugmakers to market drugs for such uses. The company also paid illegal kickbacks to doctors, encouraging the doctors to promote and prescribe Zofran more frequently, according to the DOJ. GSK pled guilty and agreed to pay $3 billion to settle criminal and civil fraud charges for illegal promotion of Zofran and other drugs.

Zofran is now available as an inexpensive generic and continues to be prescribed regularly for pregnant women suffering from morning sickness. The Jere Beasley Report describes recent studies that have linked in utero exposure to Zofran with an increased risk of birth defects. Two studies have shown a doubling of the risk of certain congenital heart defects in babies whose mothers took Zofran early in pregnancy. A third study showed a doubling of the risk of cleft palate for babies whose mothers took Zofran.

* * *

Lawyers in our firm’s Mass Torts Section continue to investigate cases involving children born with a heart defect or cleft palate after in utero exposure to Zofran. If you would like more information about this litigation, or if you or someone you know has had a family member who suffered from a congenital heart defect or cleft palate as a result of prenatal Zofran exposure, contact Roger Smith or Liz Eiland, lawyers in our firm’s Mass Torts Section, at 800-898-2034 or by email at Roger.Smith@beasleyallen.com or Liz.Eiland@beasleyallen.com.

Sources:
October15th.com: Remembering our Babies
Consumer Justice Foundation
U.S. Judicial Panel on Multidistrict Litigation
Beasley Allen
Legal Herald
Jere Beasley Report (March 2016)

Free Legal Consultation
At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

Jury awards $1.9 million to man fired after suffering amputation on the job

posted on:
October 10, 2017

author:
Staff

category:
Fraud

A jury in the Circuit Court of Montgomery County, Alabama, awarded plaintiff Leon Battle $1.9 million for retaliatory discharge and for an amputation injury he suffered on the job – he was fired for hiring a lawyer. Mr. Battle was represented by Beasley Allen lawyers Larry Golston, Leon Hampton, Jr., Kendall Dunson and Warner Hornsby, along with Montgomery lawyer Tamika Miller.

In April 2014, Mr. Battle lost four fingers on his left hand while working to repair a hydraulic hose on a chicken dumper machine at Koch Foods in Montgomery when the machine suddenly started operating when it should have been shut down. After his injury, the plant safety manager told Mr. Battle he could come back to work because Koch Foods knew Battle didn’t do anything wrong, but if he hired a lawyer, he would be fired – an obvious attempt to cover up the company’s wrongdoing. Mr. Battle hired a lawyer and was subsequently fired.

“Mr. Battle, and every employee, should expect their employer to take the proper actions and follow the procedures designed to keep them safe on the job,” Golston said. “Instead, Mr. Battle’s employer deliberately created a situation that put workers in danger, and tragically and needlessly resulted in his permanent injury. Then, to make matters worse, his employer tried to intimidate him into forfeiting his right to a jury trial by threatening to fire him if he hired a lawyer, and then carrying through with that threat.”

During the trial, the jury learned that the safety gate surrounding the machine was tampered with so that it could not operate as designed. The gate should have cut power to the machine when it was opened by a worker entering the area near the machine. However, Koch instructed its workers to insert a metal pole into the gate that allowed the machine to continue operating while the gate was open, placing Mr. Battle in danger and resulting in the loss of his fingers.

The verdict included $851,400 in compensatory damages and $1.05 million in punitive damages.

Free Legal Consultation
At Beasley Allen, there is never a fee for legal services, unless we collect for you. Contact us today by filling out a brief questionnaire, or by calling our toll free number, 1-800-898-2034, for a free, no-cost no-obligation evaluation of your case.

A wake-up call: more horror stories from inside nursing homes

posted on:
October 10, 2017

author:
Chris Boutwell

 A wake up call: more horror stories from inside nursing homesThe absence of a national database that collects and compiles data about elder abuse and the lack of standardized data reporting and collection across states only intensifies the difficulty of assessing the full extent of abuse and neglect in America’s nursing homes. Coupled with the underreporting of such events, as Beasley Allen previously discussed, many nursing home residents are forced to suffer in silence.

Research and anecdotal evidence including two high-profile incidents that occurred during recent hurricanes, as described by Beasley Allen, however, should serve as a wake-up call to the country’s aging population, their caregivers and especially nursing home regulators and owners.

For example, the Nursing Home Abuse Center reports that in “[a] study of 2,000 nursing facility residents an abuse rate of 44 percent and a neglect rate of 95 percent” were indicated. Similarly, a 2014 report from the Department of Health and Human Services (HHS) Office of Inspector General (OIG) showed that 33 percent of nursing home senior residents experienced adverse or temporary harm events and 59 percent of those incidents were preventable. Infections and physical abuse round out the top causes of such events. And, according to CNN, sexual abuse is also a growing concern for those in nursing homes and long-term care facilities (LTCFs).

Infections
The Centers for Disease Control and Prevention (CDC) says that infections are a major cause of hospitalization and death for residents in LTCFs. It explains that 1 million to 3 million infections occur in LTCFs every year and cause as many as 380,000 deaths annually. All of which could be prevented with the proper precaution, attention and care by nursing home staff.

However, the Journal of Gerontology & Geriatric Research (JGGR) says that 90 percent of the facilities are understaffed and cannot provide adequate care to the residents. Infection control professionals warn that the problem has become even more serious because one out of four nursing home residents is colonized with drug-resistant bacteria, such as E. coli., according to Science Daily. It cites a study released in May by the American Journal of Infection Control, which discovered the significant presence of drug-resistant bacteria in nursing homes and warned that it “demonstrates the need for heightened infection control prevention and control measures in nursing homes.”

Physical Abuse
The JGGR also says that one out of three U.S. nursing homes is cited every year “for causing serious bodily injury or death to a resident.” In February, a federal jury awarded the families of three deceased nursing home patients $5.2 million in compensatory and punitive damages after finding Blue Ridge Health Care Center, Care Virginia Management LLC and Care One LLC responsible for the deaths, Righting Injustice reported.

The wrongful death lawsuit claimed that patients were able to remove ventilator or tracheotomy tubes repeatedly without medical staff intervention. The alarms on the tubes that were to alert medical staff of removal “were either turned off automatically or manually by staff.” Additionally, patients suffered multiple falls and developed numerous infections because of substandard care.

In March, Alabama Attorney General Steve Marshall indicted three former Cherokee County nursing home employees, charging them each with one count of second degree elder abuse/neglect, Righting Injustice reported. An 84-year-old woman confined to a bed suffered from approximately 100 ant bites when she was left unattended for hours at the Cherokee Health and Rehab nursing facility in Centre.

Although the employees recorded that they entered the woman’s room to check on her several times, surveillance video revealed that none of the nurses checked on her for 11 hours. The nursing home reported incident and an investigation revealed the intentional neglect likely contributed directly to the resident’s injuries.

Sexual Abuse
The dire results from the lack of comprehensive national reporting and monitoring are best demonstrated through the woefully inadequate sexual abuse data in nursing homes. Although there is no national, uniform system for tracking sex abuse allegations, the Administration for Community Living has collected 20,000 complaints of sexual abuse in the last 20 years, according to the Miami Herald, but it is far from complete. Further, all forms of abuse are lumped together and sexual abuse is not categorized separately. The lack of data, especially detailed data, makes it difficult to prevent and respond to the abuse when it occurs.

Additional systemic deficiencies further complicate the efforts to protect residents.

Federal funding and other business incentives entice nursing home owners to conceal abuse. Residents’ aging and health issues often reduce their credibility as witnesses. Botched investigations including mishandled or destroyed evidence and “half-hearted investigations by facilities and regulators” also leave residents defenseless against sexual predators masquerading as caretakers.

In its review of state and federal data, CNN found that “more than 1,000 nursing homes have been cited for mishandling suspected cases of sex abuse.” It also found that “nearly 100 of these facilities have been cited multiple times during the same period.”

CNN highlighted several cases of sexual abuse including that of an 83-year-old Walker Methodist resident in Minnesota – Sonja Fischer. Fisher could not speak, move or even cry out when she was raped by George Kpingbah who was a certified nursing assistant at the facility. It wasn’t the first time he was investigated for sexual assault allegations while working at Walker Methodist. Kpingbah was suspended three previous times by the facility while it investigated the accusations. One investigation took place just seven months before Fischer was raped. Yet, neither the facility nor state investigators substantiated any of the prior incidents, and, therefore, the law prohibited the state from revealing Kpingbah’s identity. Fischer’s family had no way to know she was in danger.

“She was as vulnerable as an infant when she was raped,” Maya Fischer told CNN of her mother.

Another unsettling and growing concern for residents and their loved ones regarding sexual abuse is the misuse of cell phones and other tech devices as well as social media. Righting Injustice reported that a survey by the public interest group ProPublica identified 65 cases of nursing home and assisted living facility employees posting unauthorized photos and videos of residents on social media since 2012.

The Centers for Medicare and Medicaid Services is working with state health departments to ensure all nursing homes have policies that protect residents from such violations. Yet, the issue remains unregulated, and while forced arbitration clauses remain on the bargaining table for the nursing home industry, residents and their family members and caregivers have little recourse to hold bad employees and facilities accountable.

* * *

If you need more information on nursing home litigation contact Chris Boutwell at 800-898-2034 or by email at Chris.Boutwell@beasleyallen.com. Chris handles nursing home litigation for our firm, and he will be glad to talk with you.

Visit BeasleyAllen.com Oct. 17 for the final installment in our Nursing Home Series.

Sources:
Beasley Allen
Nursing Home Abuse Center
Department of Health and Human Services Office of Inspector General
Center for Disease Control and Prevention
Jere Beasley Report
Journal of Gerontology & Geriatric Research
Righting Injustice
Miami Herald
CNN

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