South Florida Personal Injury Lawyers

WASHINGTON- Beverly Enterprises, Inc., one of the nation’s largest nursing home operators, will adopt specific measures to reduce back injuries for employees involved in lifting nursing home residents, as part of a settlement agreement announced today by the Occupational Safety and Health Administration. The company has also agreed to establish a training program and purchase mechanical lift equipment. The settlement applies to all Beverly Enterprises facilities within federal OSHA jurisdiction.

“After years and years of litigation, we are pleased to resolve this matter and move forward with steps to eliminate hazards and better protect the employees of Beverly Enterprises,” said Labor Secretary Elaine L. Chao.

The agreement settles citations issued by OSHA to five Pennsylvania nursing homes following a 15-month investigation that began in May 1991 in response to complaints that workers were suffering back injuries related to lifting and transferring residents. The agency found that the company’s injury and illness records revealed numerous musculoskeletal injuries sustained by nursing assistants that resulted in extensive lost work time and restricted work duty.

“This agreement represents a major commitment to eliminate serious injuries and provide these employees the needed protection,” said OSHA Administrator John L. Henshaw. “The company has agreed to implement these new changes not only at the Pennsylvania facilities but also at all locations within federal OSHA jurisdiction.”

The Service Employees International Union (SEIU), District Local 1199P and Local 668, which represent workers at the Pennsylvania facilities, also signed the settlement agreement.

Under terms of the settlement agreement, Beverly agreed to withdraw its contest of the citations and OSHA agreed to withdraw the proposed penalties.

Beverly Enterprises, Inc., headquartered in Ft. Smith, Ark., is one of the largest nursing home operators in the U.S. The company currently operates approximately 240 nursing homes that are covered by this settlement. The cited facilities involved in this agreement are Carpenter Care Center in Tunkhannock, Pa.; Blue Ridge Haven Convalescent Center (d/b/a West Shore Health and Rehabilitation Center) in Camp Hill, Pa.; Beverly Manor of Monroeville in Monroeville, Pa.; Meyersdale Manor in Meyersdale, Pa.; and Richland Manor in Johnstown, Pa.

NORFOLK, Va. — The U.S. Labor Department’s Occupational Safety and Health Administration (OSHA) has cited Tents and Events, Fisherville, Va. for alleged safety and health violations, proposing a total of $5,600 in penalties after an electrical accident injured two workers.

The company, contracted to set up tents at the 2005 Boy Scouts Jamboree at Fort AP Hill in Bowling Green, Va., was issued two serious violations, each with a penalty of $2,800.

OSHA initiated its investigation on Jul. 25 in response to the accident and found that the workers were injured while they were erecting a tent and one of the poles came in contact with an overhead electrical line.

The violations address the company’s failure to adequately train employees in electrical safety work places and for allowing employees to work within 10 feet of an energized power line. A serious violation is issued when there is substantial probability that death or serious injury could occur from a hazard about which the employer knew or should have known.

The company has 15 working days from receipt of the citations to appeal before the independent Occupational Safety and Health Review Commission.

A state court judge dismissed the claim of a worker who contended that he was injured when lightning struck a state-administered work site. The injured man, John Kiebzak, argued that he was tossed backward when lightning struck the backhoe that he was operating on Sept. 29, 1999, at a highway-renovation site in Buffalo. He contended that the state was liable because it did not order the workers to stop until the lightning had passed. In ruling for the state, Judge Jeremiah Moriarty III held that Kiebzak did not prove that lightning actually struck the backhoe. He also held that such an event would have been an act of God–not an instance of negligence–and that Kiebzak should have known to stop working.

A jury found that a New York pediatrician was not liable for brain damage sustained by a boy that he was treating. The boy’s mother contended that the pediatrician, Dr. Roberto Moran, failed to diagnose a congenital heart defect that was inhibiting his growth and development. Although the condition was ultimately spotted in 1999 and addressed via surgery, the boy, Brandon Frazier, now 10, suffers brain damage, which his mother attributed to the heart defect. Moran contended that his care and treatment were acceptable and that the heart defect was not the cause of Brandon’s brain damage. The jury never weighed the issue of causation because it found that Moran’s actions were appropriate.

A jury in New York State declined to award damages to a man who claimed that he suffers untreatable vertigo as a result of a neck injury that he sustained during an automobile accident. In a trial that was limited to the issue of damages, James Warner, 29 at the time of the September 2000 accident, contended that he developed traumatically induced vertigo shortly after the accident and that more than 25 doctors and specialists could not resolve the condition. The defense argued that, if Warner actually suffered vertigo, the condition was a product of an anxiety disorder that was not related to the accident. The jury found that Warner did not prove that he suffered a significant disability.

According to the American Burn Association (ABA) Fact Sheet, the frequency and fatality rate of burn injury is declining in the United States. This comprehensive report, released in 2000 but used as the baseline today, compared burn data from 1993 to data collected from the National Health Interview Survey (NHIS) from 1957-1961. During that time, the number of burns dropped from 2 million to about 1.1 million per year. In terms of per-person injuries, the rate fell from 10 people in 10,000 to 4.2 in 10,000.

It is estimated that there are about 4,500 deaths related to burn injury every year, including 3,750 from fires and 750 associated with car and airplane crashes. Still, when taking into consideration a population growth of 25%, that represents a 60% drop over about two decades. Every year, there are 45,000 burn related hospital admissions, with about half going to the 125 specialized burn units and half to the 5,000 general hospitals in the country.

Severity of burns has also decreased during this time. Over half of those admitted have burns on 10% or less of their body, compared to just a quarter of those admitted in 1965. At the other end of the scale, admissions with burns over 60% or more of the body have decreased from 10% to just 4%. Currently, the average of Total Body Surface Area burn injury admitted to hospital is 14%.

This notable decrease can be contributed to a number of different trends. Electrical appliances are safer, the rate of smoking is decreasing, work places are becoming safer, and vehicles are generally less likely to catch fire. However, the demographics of burn injury victims remain the same. Those under the age of 5 and over the age of 65 are still at most risk. For young children, scalds from hot liquids including coffee, boiling water on the stove, and even hot tap water are the most frequent burn injury. In fact, over half of all burns are a result of scalding.

Burn injury occurs every 25 seconds in this country, and can lead to serious consequences. Third-degree burns, the worst type, can damage several layers of skin, tendons, blood vessels, nerves, and even bone. But the greatest risk is from infection. The skin is a natural barrier between the internal workings of the body and the foreign organisms like bacteria. Even with the greatest of burn care, victims can still develop life-threatening infections as their bodies heal. According to the ABA, 6% of those admitted to burn centers do not survive their injuries.

If you have been in an accident involving burns, your recuperation time and subsequent medical bills could be mounting. Often burn injury results from the negligence of someone else’s actions. Whether you received your injuries on the job, in a car accident, or at some other location, contact Florida personal injury David I. Fuchs at 800-570-2858 to schedule a free consultation and case evaluation.

Linda Reeves thought it was a good idea to take hormone replacement therapy to help prevent the osteoporosis that plagued her mother.

But doubts surfaced six years ago when she was diagnosed with breast cancer and her doctor instructed her to stop taking the pills.

The 67-year-old endured a mastectomy, and while Reeves said she feels fine now, she fears her cancer may return.

“I think about it an awful lot. It is something that is there in the back of my mind,” said Reeves, a secretary living in Benton, Ark.

Reeves blames her cancer on roughly eight years of taking Prempro, an estrogen-progestin combination made by Wyeth and prescribed to relieve menopausal symptoms such as hot flashes.

Next month, Reeves will face Wyeth in a federal court in Little Rock, Ark., in the first of approximately 4,500 lawsuits filed against the company over hormone replacement therapy. Key to her case are internal marketing documents her lawyers claim show Wyeth put profits ahead of patients.

The case marks the beginning of what could be a long process that could compound the financial fallout Wyeth suffered from a clinical study halted in 2002. The Women’s Health Initiative study found Prempro patients had a higher risk of breast cancer, stroke and coronary heart disease. Prempro sales, along with those of sister drug, estrogen-only pill Premarin, dropped to $909 million last year from $2.07 billion 2001.

Wyeth heads to court Aug. 21 after finally reaching settlements for most of the lawsuits over the former diet drug combination fen-phen with a price tag of $21 billion to date. Analysts don’t believe its liability over HRT will reach anywhere near that because WHI showed only a slight increase in health risks and proving a connection to an individual’s breast cancer or heart disease will be difficult. Plus, they’ve seen no proof that Wyeth deliberately misled doctors and patients about HRT’s safety profile.

Analysts and legal experts say the case against Merck & Co. over its now-withdrawn pain reliever Vioxx appears stronger because of the number of studies linking the drug to health problems, a more pronounced risk and some damaging internal documents. Liability estimates have reached $50 billion.

Reeves lawyers insist evidence abounds that Wyeth willfully ignored HRT’s dangerous side effects, including numerous studies which found it doubles patients’ risk of breast cancer, and sales representatives who’ll testify they were ordered to minimize the drugs’ risk while promoting them for unapproved uses such as cardiovascular health and Alzheimer’s prevention. Most of the cases are about breast cancer risk, Wyeth said.

Plaintiffs attorneys say Wyeth never really explored the issue of breast cancer risk, a charge the company denies.

“They (Wyeth) wanted doctors to look at the benefits and not the risks,” said James A. Morris Jr., one of Reeves’ lawyers. “They corrupted the science.”

Wyeth maintains it always acted responsibly, noting the HRT’s label warned of breast cancer risk and the drugs are still on the market and prescribed by doctors.

“This is an incredibly valuable treatment. There are really benefits to this medication,” said Heidi Hubbard, a lawyer for Wyeth.

Now HRT is typically prescribed at low doses for short periods while before 2002 women often took it indefinitely at higher doses. The breast cancer warning is now more forceful and prominently displayed on the drug label.

Dr. Andrew Good of the Mayo Clinic said he was aware of the studies linking HRT with breast cancer but noted there were others that found no connection.

“I’ve been hearing the speeches (from Wyeth) since 1970,” said Good. “No one ever sold this as ‘Don’t worry about breast cancer.’”

The only issue the two sides appear to agree upon is that the WHI study had limitations, so its role in the Reeves’ case is unclear. It found that for each year 10,000 women took Prempro, there would be eight more cases of breast cancer than if they were all taking a placebo. Over the 5.2 years of the trial, the increase in adverse events including breast cancer, heart attacks and stroke was about one in 100. That may not sound like much but doctors say it adds up, given the millions of women who took HRT.

Reeves lawyers said other studies which show a stronger correlation between HRT and breast cancer will be crucial to their case. They’re also planning to introduce company documents and testimony from sales reps to bolster their allegations that Wyeth recklessly promoted the drug to boost sales.

One is a letter a former Wyeth salesman wrote to company executives, concerned about how HRT was being promoted. His testimony may be included at the trial.

“The desire for increased sales has overruled our company’s ethical responsibility to promote our products safely,” he said in a letter dated July 18, 2000, to the Office of Ethics and Business Conduct of American Home Products, Wyeth’s former name.

He wrote that he was instructed to promote HRT for unapproved uses such as preventing Alzheimer’s and cardiovascular disease and believed that it was unethical since many studies showed the drugs could increase the incidence of breast cancer and heart attack while having little effect on Alzheimer’s.

The sales rep wrote the potential liability from such practices could “pale in comparison” to the suits over the diet drugs. He added his managers accused him of insubordination when he complained.

Hubbard insisted the situation described in the letter was an isolated incident. Some of those involved were demoted or are no longer with the company, Wyeth said.

Plaintiffs lawyers also plan to introduce a transcript from a Prempro launch party where Wyeth’s current chairman and CEO Robert Essner told sales representatives that the company was creating an “HRT revolution” that would keep women on the drug from menopause to death and that there should be “no boundaries, no limits to your selling effort.”

“To some degree, it (HRT) was marketed as the elixir of youth,” said Dr. Joseph Ramieri, chairman of the OB/GYN departments of Morristown Memorial and Overlook Hospitals in New Jersey. Yet, he doesn’t believe Wyeth ever crossed a line or promoted the drug fraudulently, noting it does help prevent osteoporosis and women said it helped their skin quality.

Even if jurors are disturbed by marketing evidence presented at the trial, plaintiffs still need to link each specific case of breast cancer to HRT and experts say that won’t be easy.

Plaintiffs lawyers say they have been careful to only accept cases where the plaintiffs’ cancer cells have receptors that bind to estrogen and progestin, which they say can prove a link to HRT.

But experts say that because the cancer is fueled by hormones doesn’t mean it was triggered by HRT.

“There is no way to prove the HRT caused the cancer,” said Dr. Alison Estabrook, Director of the Comprehensive Breast Center at St. Luke’s-Roosevelt Hospital Center in New York. However, she does believe the HRT stimulates the cancer to grow faster.

Still, Reeves said she deserved to be warned about the studies that connected HRT with breast cancer risk and now believes she is entitled to compensation. “If there was even a possibility of breast cancer I wanted to know,” she said. Now she says the best she can hope for is that her trial helps warn other women and that her cancer doesn’t return.

From the Associated Press

A jury yesterday awarded a Philadelphia family $5 million in the death of their 1-year-old boy, who died after his parents gave him Infants’ Tylenol.

Marquis Dunson died in March 2002, just 12 days after his first birthday. The official cause of death, according to the Philadelphia Medical Examiner’s Office, was acetaminophen toxicity.

His parents, Lisa and Martin Dunson, said they did not realize Infants’ Tylenol was concentrated - three times the strength of regular Children’s Tylenol.

“The important thing is that parents know there are potential problems with Infants’ Tylenol, and they have to be super careful,” said A. Roy DeCaro, the attorney who represented the Dunsons.

Marquis fell sick with a cold on March 16, 2002. His parents gave him Infants’ Tylenol. The box states that parents should call their doctor before giving the medication to any child younger than 2, but their doctor had recommended Infants’ Tylenol before.

They gave him two droppers every four hours. Marquis got sicker and sicker, but it did not occur to them that it was the Tylenol that was causing the problem, DeCaro said. DeCaro said the child should have been getting half a dropper as needed.

They had used the drug with their other four children without incident.

The Dunsons took Marquis back to the doctor on March 19. He was rushed to the hospital and pronounced dead about a half-hour later.

In closing arguments yesterday, the attorney representing defendant McNeil Consumer & Specialty Pharmaceuticals of Fort Washington said that the child was simply ill.

Attorney Robert Sparks said there was not enough of the drug in his system to be toxic.

“This child died of a virus … ,” he said.

The jury did not agree, returning with a verdict in less than two hours after the weeklong trial.

“We strongly disagree with today’s verdict and are considering other legal options,” said Michael J. Beckerich, a spokesman for McNeil.

The Dunsons were not available for comment, but their attorney called for stronger warnings about potential fatalities and a clear description that it is three times more potent than Children’s Tylenol.

Recently, McNeil did add a warning that multiple overdoses of all Tylenol medications can lead to liver toxicity.

Tylenol has come under fire recently. A study published this month in the Journal of the American Medical Association found that healthy adults had abnormal liver-test results after taking maximum doses of Tylenol for two weeks.

Nearly 40 percent of the people who took the equivalent of eight extra-strength Tylenol tablets a day, some with an opioid painkiller and some without, had test results that could signal liver damage, the article said.

McNeil has been responsive to problems with its products in the past.

When parents were pouring the Infants’ Tylenol into teaspoons and giving their children too much medication, the company developed a cap so that only the dropper could be used.

A jury awarded more than $47 million to a child who suffers severe brain damage as a result of an anesthesiologist’s failure to quickly halt a cardiac arrest. The jury found that Wyckoff Heights Medical Center anesthesiologist Dr. Stacey Smith did not perform timely intubation of a 23-month-old patient, Markaysha Demendonca, who was suffering an asthmatic/seizure attack that led to cardiac arrest. Markaysha’s mother alleged that the child wasn’t intubated until about 20 minutes after the incident. Smith contended that the intubation occurred within 70 seconds, but Markaysha’s attorney countered that the extent of the brain damage indicated that quick intubation couldn’t have occurred. The jury agreed, and on June 8, Markaysha was awarded $47,365,732.

In 1994, Elizabeth Maclyman, 22, visited Firestone Dental Group in South Gate, to initiate corrective orthodontic treatment to straighten her teeth and correct a 3mm overjet. Firestone Dental assigned an orthodontist to put braces on Maclyman. Over the next two years, Maclyman was assigned four different orthodontists. During the course of her treatment, her overjet expanded from 3mm to 10mm.In 1996, Dr. Ted Benaderet became Maclyman’s general orthodontist and remained in this capacity for the next four years. During this time, the overjet required surgery, which was performed in July 2002 by Gary Wyatt, an oral surgeon. The surgery failed and yielded a crossbite on the right side.Shortly thereafter, Maclyman was assigned a new orthodontist, Dr. Ronald Greenspan, under whose care she remained until electing to leave Firestone Dental in late 2001 for an orthodontist in Newport Beach. After that doctor’s retirement in 2002, she started going to Dr. Todd Walkow.

In December 2002, Wyatt again performed surgery on her and it also failed. A year later, in November 2003 a third surgery proved successful and, in March 2006, after 12 years in braces and a succession of orthodontists, Maclyman’s braces were finally removed.

Maclyman sued Firestone Dental, Greenspan and Benaderet for dental malpractice.

Maclyman’s counsel claimed that, during a crucial period while she was recuperating from her first surgery, Firestone Dental was without a staff orthodontist for 4-5 months, causing her to endure an uncontrolled orthodontic condition between the time a splint was removed and her jawbone was fully healed. Firestone Dental’s failure to provide her with continual care also resulted in her being in braces for too long a period of time. Furthermore, Firestone Dental allowed an individual who was not a dentist to perform dentistry, plaintiff counsel contended.

Maclyman’s attorneys argued that Benaderet did not maintain proper communication with Wyatt throughout the planning and completion of her first oral surgery. She also alleged that Benaderet provided negligent post-surgery treatment by failing to insert a continuous arch wire. Regarding Greenspan, Maclyman’s counsel contended that the crossbite elastics he inserted failed to correct the right- side crossbite that resulted from the first failed oral surgery. She also contended that Greenspan did not properly chart the right-side crossbite when he became her general orthodontist months after the surgery and that he inserted an arch wire that was too light and flexible in response to the failed surgery. Maclyman maintained that Greenspan’s negligent treatment failed to stabilize the upper arch and exasperated the negative effects of the failed surgery and Benaderet’s negligent patient management.

Firestone Dental denied malpractice, asserting that the plaintiff’s case presented significant challenges from the onset and that there was no malpractice performed at any time by any of its employees. It contended that Maclyman missed numerous appointments throughout the six years that she was a patient of Firestone Dental and that repeated damage to appliances placed by orthodontists contributed to the amount of time she had to remain in braces. It also argued that the increase in Maclyman’s overjet was a result of the natural progression of treatment, not improper treatment. Additionally, it argued that Wyatt was responsible for the failed surgery and that any negligence claim should be assigned to him. Firestone Dental also produced Benaderet’s pay stubs to dispute Maclyman’s claim that there were no staff orthodontists available during the months following her failed surgery. Firestone Dental also argued that all of its orthodontists were independent contractors, for whom it is not liable on a theory of respondeat superior.

Benaderet, for his part, claimed that when he began treating Maclyman she already displayed a 10mm overjet. He maintained that he did not do anything wrong in treating her that would have caused a relapse following the first surgery. In fact, he claimed, he was not even aware that Maclyman had scheduled an oral surgery until after Wyatt had performed it. Benaderet denied being unavailable to treat Maclyman for the four months following the first surgery.

Greenspan’s counsel noted that his client was only Maclyman’s orthodontist for seven months after the first failed oral surgery. He argued that her surgery failed due to a surgical relapse and that the crossbite elastics that he inserted following the surgery were not able to correct the complications that the surgery presented. Greenspan’s lawyer pointed out that Greenspan had advised Benaderet that he was concerned about the amount of time she had been in braces and was the one who got Benaderet to remove the braces so that she could visit a periodontist; he even eventually referred Maclyman to another orthodontist so she could obtain a second opinion regarding the length of time that she had been in braces.

From 2000 to 2003, Maclyman underwent three oral surgeries. In each instance, her mouth was wired shut for seven weeks afterwards. She had to have pins, wires, screws, plates and implants placed into her mouth and jaws throughout the time that she was receiving treatment from Firestone Dental. Since Maclyman was in braces for 12 years, she suffered generalized bone loss and lost tooth number 31 entirely due to periodontal concerns.

Maclyman claimed $21,885 in past medical bills and $43,750 in future medical bills to surgically correct the damages caused to her mouth and jaw.

She also sought damages for past wage losses for the time she stayed home from work with her jaw wired shut. She sought unspecified damages for the pain and suffering associated with remaining in braces for over a decade.
The jury found Firestone 30% at fault, Benaderet 30%, non-party Wyatt 35%, and Maclyman 5%. They found no liability on Greenspan’s part. The jury awarded the plaintiff $344,838, which will be reduced accordingly. According to Greenspan’s attorney, the decision of plaintiff’s counsel not to name Wyatt was “a strategic mistake.” Dr. Wyatt, he said, “was responsible for two failed surgeries. He had the patient’s confidence. But Maclyman didn’t want to sue him. [Instead, her attorney] used Dr. Wyatt as his client’s lead expert. Although found 35% responsible for the non-economic loss, he pays nothing, charges plaintiff an expert witness fee for coming to trial, and skates free despite errors made.