Personal Injury News & Developments

Small Town Wisconsin Legal Arena

Little red schoolhouse in meadow on misty morning

The Biggest Case from Wisconsin: When Can an Injured Person Assert a Claim for Recovery From His Injuries

Who would have thought that the small town of Waukesha, Wisconsin would be the setting for one of the most heavily discussed incidents in law schools for over one hundred years? In 1891, this was the scene for a common schoolboy scruff that turned contentious, and then turned historical. On a regular school day, George Putney and Andrew Vosburg attended class as they normally would. They had lunch, went to recess, then returned for the rest of their lessons and that is where the drama took place. For no apparent reason, Putnam-who was sitting just adjacent to Vosburg-reached across the aisle and kicked his fellow classmate in the leg, just below the knee on the shin. Later, Putnam would claim that he did not mean to harm Vosburg.

Well, unfortunately, the best-laid plans often go awry. While Vosburg could hardily feel the impact of Putnam’s kick, just a few moments later was struck with a terrible pain at the site of the hit. The aggravation following the incident made him so sick that he suffered from excessive vomiting and discomfort. It got so bad that he required two surgeries to try and fix the matter but during the second operation doctors discovered that the affected bone was beyond repair and could not be fixed. Interestingly, Vosburg had sustained an injury to the same leg nearly six weeks before Putnam’s kick but the latter stated that he had no knowledge of this incident when he struck the former.

The Young and the Battered

Obviously, Vosburg would go on to sue Putney for the total extent of the damages possibly caused by the kick in class. Eventually, the Supreme Court of Wisconsin would hear review it three times and by the end, every law student would read about it for over a century. What the case essentially boiled down to were three issues and the holdings on each of them would largely come to define battery and intentional tort law across the country.

The first involved intent. The defendant claimed that no action could be brought against him because he did not intend to do any harm to the plaintiff, and in his defense he cited legal precedent that stated, “The intention to do harm is of the essence of an assault.” The court acknowledged this as valid law and reasoning but attributed it to different circumstances. It stated that this rule applied to mere assaults but the case at hand involved more than that-it involved assault and battery. Therefore, different rules applied. In this instance, the court separated acts from intent. If an act is unlawful or wrong, then the intent to commit that act is unlawful or wrong as well, it reasoned. Thus, a plaintiff can show either that the intent was wrong or that the defendant was actually at fault. Applied here, it was wrong to kick another student in class, and the intent to commit that act was necessarily wrong as well (“If the intended act is unlawful, the intention to commit it must necessarily be unlawful”). The subjective desire that Putnam had not to hurt Vosburg was irrelevant. These situations are judged from an objective standard-what a reasonable person would think is right or wrong in the given circumstances. Also, the court in this case put special emphasis on the fact that context governs. Had the children been playing a game during recess, then there might have been some implied license for this kind of context. But the kick actually came during class where no license of any kind was apparent and, as such, it must objectively be viewed as wrongful in the circumstances.

The second issue centered on evidentiary problems. At trial, the plaintiff produced a witness, a doctor, to testify to the source of Vosburg’s extreme medical complications. The defendant objected when the plaintiff’s lawyer excluded evidence of prior injuries Vosburg had sustained to the same leg. The trial judge overruled these objections had allowed the testimony to continue. After being called to speculate as to the source of Vosburg’s medical crises, he said, “The exciting cause was the injury received at that day by the kick on the shin-bone.” The Wisconsin Supreme Court found fault with this procedural ruling. It stated that the trial court should have sustained the defense’s objections and allowed in evidence of the prior injuries because it was “Absolutely essential to enable him to form an intelligent opinion concerning such matter.” Also, as an expert witness, the basis for and quality of his testimony is of crucial importance.

The third issue revolved around damages. In the case, Vosburg claimed an extraordinary sum for the time, roughly $2,500.00, or more than $60,000.00 adjusted for inflation in today’s dollars. To this, and quite naturally, Putnam tried to shed most of the damages as not attributable to him. Specifically, he stated the only damages that he should have to pay were those “That (he) might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff.” So, ostensibly, the actual hurt of the slight kick that Putnam gave Vosburg produced incidental costs which Putnam would not deny paying but the complications that later developed (probably from the aggravation of Vosburg’s earlier injury) should be attributed to someone else because he could not have imagined producing that much damage. The court rejected this reasoning. It stated that wrongdoers are responsible for all costs arising directly out of their actions, whether they are foreseen or not. Out of these facts and holding, it has become settled law that people must take others as they find them and must pay for all damages. Even if certain victims are more susceptible to extensive complications than others, defendants in the wrong must pay for all complications. This is “Eggshell skull” rule whereby even if a little act produces violently disproportionate damages, the defendant is forced to bear all of them and this case is the best proponent of that canon.

Vosburg: 125 Years Later

Over 100 years later, many may ponder why such thought and discussion is placed on schoolyard scrum in a small town so long ago. However, certain principles emerge from this case and are timeless in their meaning and significant in their application for their future. First, intent is objectively attached to actions. No matter what you wanted to accomplish, if you intended a wrongful act, you are at fault and liable for everything that follows. Second, context matters. If you can claim that what you did was customary for the environment then you might get off without fault. Putnam could not do that and it largely doomed his case. These principles of intentional torts and battery still apply and fundamentally guide legal perspectives.

Drugs and impact on FetusIt has long been known that pregnant women must take great care with what they take into their bodies as chemicals, medications and substances found in supplements and foods can all be absorbed by the fetus through the placenta. Doctors need to be sure beyond any doubt that medications will not only be safe for mothers but also for their unborn children before recommending or prescribing any medical treatment.

Children who were exposed to toxic chemicals or medications during pregnancy may be born with developmental problems, deformities or other serious defects or conditions which require long term care and medical treatment to remedy or cope with. Drug companies and doctors must take greater precautionary measures to ensure that the unborn are not being harmed due to medications or medical care and those who profit off of the weak without any care for the consequences must be held responsible.

The Placental Wall and How a Fetus Receives Nourishment

During pregnancy, the placenta is the primary delivery system of nutrients and other minerals and materials needed for the fetus to develop into a human being. The baby is protected inside of the womb and the placental wall is a barrier that separates the child from the mother’s body in order to keep it safe but it is also the source of everything that the child requires to survive until birth. Oxygen, blood and nutrition are all delivered through this wall.

Chemicals and other toxins are also able to travel through this wall, which is why women are urged not to smoke or consume alcohol while pregnant as the toxic substances found in cigarettes and alcohol can harm the child. In addition, supplements and medications may reach and harm the fetus during its growth and cause the fetus to become malformed or result in a miscarriage. It is for this reason alone that all medications prescribed to pregnant mothers have substantial scientific evidence that proves their safety when used throughout pregnancy.

Zofran and an Epidemic of Abuse

GlaxoSmithKline developed Zofran throughout the 1980s for the treatment of nausea that is commonly associated with surgical procedures or cancer treatments. From the initial stages of development, it is believed that GlaxoSmithKline was aware that Zofran could harm the unborn and for this reason when GlaxoSmithKline received approval the market the medication for the treatment of those suffering from nausea following surgical procedures or chemotherapy and radiation treatments, it did not seek approval for the medication to be marketed as a treatment for morning sickness. Instead, doctors were assured that the medication was safe and promised incentives and kickbacks if they would prescribe the medication for off label use to pregnant women suffering severe morning sickness.

When it was later discovered that there was a definitive link between Zofran and numerous birth defects and adverse health conditions, a more thorough investigation revealed that not only did GlaxoSmithKline suspect that the medication might cause birth defects, but that it had actually conducted its own research and kept the conclusions found hidden from the public. This information motivated GlaxoSmithKline to decline any further research into the affects and risks of prescribing Zofran to pregnant women for the purpose of plausible deniability. Since the drug was deemed safe for use in cancer and post-operative patients, it was brought to market for that purpose and then prescribed off label to pregnant women for additional profit.

Injuries Linked to Zofran and Other Off Label Medications

Children born of parents who had been prescribed Zofran and other off label medications have suffered from numerous defects and health conditions. Some of the more common conditions caused by Zofran include but are not solely limited to the following.

  • Cleft lip and/or cleft palate
  • Conditions that are the result of a hole in the heart.
  • Missing or malformed organs such as a missing kidney or the formation of both kidneys into one mass
  • Respiratory conditions that result from a hole in the lungs
  • Neurological disorders
  • Brain damage or mental retardation caused by the defective formation of part or all of the brain. Severe cases involve entire portions of the brain that are underdeveloped or missing.

Protecting the Victims of Pharmaceutical Negligence

The Rosenfeld Injury Lawyers are a leading drug recall law firm comprised of dedicated and experienced attorneys whose sole purpose is to seek justice for those who have been taken advantage of or injured because of corporate greed or recklessness. If your child was born with deformities or a severe medical condition due to the use of an off label medication, contact us now to schedule a free consultation with one of our committed attorneys to learn whether you are entitled to compensation for your child’s injuries and how best to pursue a claim. Upon completion of an investigation into your case, we will let you know what options are available to you and what you can expect if you decide to pursue a lawsuit.

Our lawyers believe that anyone should have access to quality legal services in the event they are injured, so unless we are able to secure compensation on your behalf, our services and legal advice will be completely free of charge.

The beginning of a pressure sore can creep up.Patients are often relieved when the doctor finally diagnoses them with an acute or chronic condition that can be effectively treated in a hospital or medical facility setting. While the medical condition might take weeks or months to properly manage or heal, hospital professionals have access to the best medical information and training to assist the patient’s recovery. While there are many challenges in assisting patients in the hospital, most problems that happen when treating a specific condition is usually expected. But what about problems that creep up unexpectedly, such as developing bedsores?

Getting Worse Instead of Better

Anytime an individual is admitted to the hospital, they expect to be provided optimal health care from highly trained providers who use the latest advancements in medicine. However, it is not uncommon for hospital patients to leave in worse condition than when they arrived. Unfortunately, patients suffering any type of disease, illness or injury are always susceptible to developing pressure sores when and where they least expect it, especially if the facility is understaffed or mismanaged.

Even though bedsores can be prevented, many hospitals, nursing homes, assisted living facilities and other medical centers no longer focus on providing extensive hands-on care for their admitted patients. Instead of ensuring that the patient is given the best care possible, hospitals and administrators tend to focus more on generating profits at the expense of basic patient care.

Treating Bedsores

Effective treatments for healing bedsores have been known since the 1950s. Back then, doctors and nurses realized that simply removing the pressure on specific body parts every hour by turning the patient minimized the potential development of decubitus ulcers. With such a simple treatment to minimize the chance of acquiring a potentially deadly condition, it is not hard to imagine why so many patients are upset when they realize that medical or clinical negligence is a likely cause of their bedsore in the hospital.

Studies show that as many as one in 10 patients will develop a pressure ulcer while hospitalized. This number jumps to seven out of every 10 elderly patients who are also suffering mobility problems.

A Responsibility to Provide Care

When the patient is formally admitted into the medical facility, the doctors and nurses are given the responsibility to provide them essential medical care. Their duties include focusing on managing the patient’s condition to treat their acute condition. However, the medical staff should keep in mind that every patient in the hospital is also susceptible to developing pressure sores.

Once admitted to the facility, the future of the patient’s health is always in the hands of the caregivers. Because of that, it is the duty of the health care provider to ensure that the patient leaves in better shape than they were in prior to admittance. However, the medical staff can be negligent in their duties if they just provide medicine, surgeries and procedures to allow the patient to heal from their acute medical condition, without also considering the potential of acquiring another medical issue, such as developing pressure ulcers.

Recent changes in the healthcare industry have added millions more policyholders seeking medical care. The higher demand for immediate healthcare has put a strain on most understaffed facilities. As a result, many patients are not provided the care they deserve, which has increased iatrogenic (preventable harm) outcomes, which often leads to patients suffering unexpected injury or death.

No Excuse for Providing Poor Care

As highly trained medical professionals, nurses, doctors and other hospital staff receive essential training to optimize the patient care they provide. Admitted patients expect the highest level of care, and should get it. There is no excuse, including being fatigued and overworked at work, for providing a poor level of care to patients that result in pressure sores or other serious medical issues.

Commonly, patients suffering any medical condition in a hospital who cannot be moved around increase their potential of developing a pressure ulcer. This includes patients that are paralyzed, elderly, in a coma or suffering other serious incapacitating illness. Serious bedsores causing significant injury and fatalities are often indicators of inadequate care. This is because nearly every Stage I and Stage II pressure sore can be treated, reversed and fully healed.

What Happened in Fatal Derailment?On the morning of May 12, hundreds of lives were changed when an Amtrak passenger train careened around a curve at twice the speed advised for the section of track and derailed, injuring most of the 238 passengers on board and resulting in eight deaths reported in the first week.

Following the Amtrak derailment, officials, politicians and lawyers have all mounted to point fingers as investigators still work tirelessly to determine the exact cause of the accident. While many of the details of the incident are still hazy, what is crystal clear is that more must be done to address the issue of transportation safety as well as to prevent accidents of the same nature from ever occurring again.

Officials Quick to Indict Engineer

Numerous officials and politicians have been quick to criticize Brandon Bostian, the engineer who was operating the train when it exceeded 100 miles per hour going into a curve where the recommended speed was only 50 miles per hour. Brandon cannot seem to recall the events or has refused to provide any incriminating information at the behest of his attorney but the investigation has called into question whether the accident was entirely Bostian’s fault and if the cause of the accident was influenced by other factors. The NTSB was quick to chastise the Mayor of Philadelphia, who rushed to crucify Bostian, stating that its investigation was still underway and no conclusion had been reached.

Accident May Have Been the Result of Infrastructure Defunding

The NTSB revealed in its investigation that Amtrak had failed to install speed control systems ahead of the curve that would have prevented the accident regardless of whether an engineer was operating at excessive speeds. The lack of this system has become political fodder as politicians argue that the defunding of infrastructure programs is making our transportation system less reliable and more deadly. The day after the derailment, House Republicans voted to cut $1 billion from Amtrak spending which was met by sharp criticism from Democrats.

On one side of the argument, Speaker of the House John Boehner has cited Bostian for operating the train in an irresponsible manner while Senator Corey Booker has pointed out how far behind the nation has fallen behind other countries on the quality of transportation infrastructure. He also pointed out that even if Bostian was determined to be at fault, the accident would have been prevented completed had Amtrak implemented the speed control system the NTSB had early advised it to.

Factors that May Have Caused the Accident

Brandon Bostian does not remember the events preceding the accident and suffered a concussion during the event so investigators are still unsure whether a health issue or substance abuse are contributing factors and Bostian has cooperated so far as in providing a blood sample to exonerate himself. If Bostian had lost consciousness prior to the accident, it would explain the excessive speeds but the lack of a speed control system and brake failure may also have been contributing factors. The quality of the train tracks themselves is also being thrown into question as investigators race to provide an answer to the victims and public officials who are demanding one.

Parties Which May Be Subject to Legal Action

If Brandon Bostian is found to be responsible for the accident, he will share liability with Amtrak, who can also be held liable through the statute of vicarious liability. There is a long list of organizations and companies that may end up seeing a day of reckoning— from Amtrak itself to the many manufacturers of train equipment to the maintenance workers responsible for inspecting trains to ensure that they are safe to operate and repairing any defective or worn parts such as brakes and hydraulic systems. The lawsuits that are anticipated to follow in the wake of this disaster will only provide vindication to victims and their families. Prevention of future incidents requires regulations and funding that must come from the top; from a government that has a record of ignoring infrastructure concerns for decades now.

Bicycle Safety in Illinois is Statistically not soundIn a report released in October 2014, Illinois continues to be one of the states with the highest number of bicycle fatalities in the nation. In fact, between 2010 and 2012, bicycle fatalities in the state rose approximately 16 percent.

Bicycles have long offered a viable, affordable option of transportation in heavily populated communities including the Chicago Metropolitan area. In addition, the many bike trails in pastoral rural areas offer bicyclists the opportunity to enjoy many of the great outdoor areas of Illinois. Unfortunately, riding a bicycle in the state continues to be risky for every bicyclist, even those who ride responsibly.

Common Risks Posed to Bicyclists

The statistics on accidents involving bicycles in Illinois indicate that driving and bicycle safety is essential to the health and well-being of the bicyclist. In many incidences, motorists simply never notice the bicycle on the road or side street when sharing road space. Inattention by you the cyclists on the motorists can cause a collision quickly. Many of the leading factors that contribute to bicycle accidents involving serious injuries and fatalities often include: Continue reading

Medical Malpractice Guidelines Have Been Lessened

In April, 2015, the Supreme Court of the United States simplified the process of individuals suing the federal government for negligence. This 5-4 decision by the highest court in the land will likely affect military veterans filing claims against the government for medical malpractice.

Ruling on two different cases, the justices said existing deadlines for filing suits can be extended but only if the plaintiff in the case attempted to comply with rules or failed in their capacity to learn about the information needed prior to the deadline.

The majority opinion written by Justice Elena Kagan combined both cases. The ruling upholds the decision by the 9th U.S. Circuit Court of Appeals which previously stated that deadlines could be flexible when dealing with lawsuits filed against the government. The ruling is in direct opposition to the Obama Administration that had argued it was the intention of Congress that deadlines be firm.

However, Justice Kagan wrote that Congress never clearly indicated that the deadlines outlined in the Federal Tort Claims Act (FTCA) be “iron-clad.” The justice also wrote that the time limits outlined in the act are “just time limits, nothing more.” The Supreme Court majority ruling extends deadlines based on the judge’s discretion. Continue reading

Settlement in Bladder Cancer CasesIn April 2015, a settlement agreement resolving thousands of lawsuits over the diabetes medication Actos was finally reached by its manufacturer Takeda Pharmaceutical Co. Ltd. The pharmaceutical company agreed to provide $2.4 billion of financial compensation to patients and families in the U.S. affected by the medication linked to bladder cancer. Current claimants and litigants who meet specific criteria are expected to receive financial payouts from the settlement fund.

The Actos diabetes prescription medication arrived in the medical marketplace in early 1999 after receiving approval from the FDA (Food and Drug Administration). Within a decade, Actos was one of the 10 most prescribed medications in the U.S. However, in information released at trial, internal studies by the pharmaceutical manufacturer as far back as 2004 linked the drug to an increased risk in bladder cancer.

Though the company has agreed to the settlement, they are not admitting liability and claim all allegations are without merit. While the agreement has been finalized, it only becomes effective when 95 percent of the claimants and litigants opt to accept the settlement. This agreement settles the charges that Takeda had failed to warn patients prescribed Actos of its increased potential risk for acquiring bladder cancer.

The Dangers of Actos

Doctors prescribe Actos (pioglitazone) medication to be used in conjunction with exercise and diet as an adjunct for improving glucose (blood sugar) control in patients suffering from type II diabetes. This is because its anti-hyperglycemic effects are only exerted in endogenous insulin. It is not effective for treating type I diabetes and has not been proven effective or safe for children 18 years or younger.

There are numerous well-known side effects to taking Actos that can occur when beginning the medication, increasing its dosage or stopping the drug altogether. Common dangerous side effects can be severe, requiring immediate medical attention. Other factors that cause problems with use could be related to overall health, gender, weight, age and ethnicity. Some of those serious and life-threatening side effects include:

  • Upper respiratory infection
  • Muscle pain
  • Headaches
  • Sinus irritation or infection
  • Tooth pain
  • Fevers, chills and sore throat
  • Allergic reactions including swelling of the tongue, lips and face
  • Skin reactions including itching and hives
  • Hypoglycemia (low blood sugar)
  • Bladder cancer
  • Lactic acidosis
  • Bone fractures
  • Congestive heart failure

The prescription medication tends to worsen when used with many comorbidity problems or pre-existing medical conditions. The prescription medication should never be prescribed any patient suffering bladder problems, bladder tumors or cancer.

FDA Safety Communication

As far back as June 2011, the Food and Drug Administration released a drug safety communication informing Actos users of the link of pioglitazone and increased bladder cancer risks. At that time, the FDA revised its patient Medication Guide to include the increased risks of developing bladder cancer when taking the diabetes controlling drug.

Withheld Information

Attorneys for the plaintiffs presented evidence at trial that Takeda had for years employed marketing strategies to increase their sales while withholding information from medical professionals of the associated risk of bladder cancer while taking the drug. In addition, the trial jury also heard evidence of how the pharmaceutical manufacturer failed to provide the same adequate warning to patients, some who have since lost their lives to terminal bladder cancer.

Settling Lawsuits

As a part of the terms of settlement, funds will be awarded to claimants at an amount based on a points matrix. The injured victim will receive an amount based on various criteria including:

  • The extent of injuries the patient suffered and the treatment involved
  • The age of the patient
  • The dose of Actos taken
  • The length of time the prescription medication was taken
  • Any associated risk factor like smoking that could have increased the potential of developing bladder cancer

This settlement agreement should resolve more than 9000 pending bladder cancer claims against Takeda. More claims and lawsuits are expected to be filed against the company in the future. Because of the harmful effects and damages caused by Actos, future litigants will likely be eligible to receive financial compensation through a settlement or jury verdict. However, these types of cases are complex and often require the skills of an experienced personal injury attorney who specializes in bad drug cases.

Dangerous Records for Mega Bus CompaniesThe recent Megabus crash is the fourth collision that has occurred for the low-cost carrier since October 2014. The recent accident happen just south of Indianapolis, Indiana on Interstate 65. Initial reports indicate that the double-decker bus did not provide adequate time or distance to avoid hitting a semi-truck stopped in the roadway. In addition to the initial collision, subsequent passenger vehicles collided into the wreck causing a chain reaction. No one in the other vehicles suffered any life-threatening injuries.

Megabus is a major transportation provider carrying thousands of passengers to their destinations every day. Throughout every year, the company transports more than 18 million passengers across northern America. The company is owned and operated by Coach USA, a recognized interstate commercial carrier with more than 250 buses in their fleet. As a low cost transportation carrier, the bus line offers one-way tickets for as little as one dollar. Because of that, most of the company’s buses traveling the nation’s interstates are filled to capacity.

Even though the 19 injuries occurring in the April, 2015 bus crash were not serious, important questions have been raised about the company’s procedures on maintaining their buses along with driver training and road safety. While the carrier is able to offer low-fare solutions, they also have the ability to avoid various safety rules because they pick up and drop off customers at curbside locations instead of traditional bus terminals. Continue reading

Resolution Comes in Vaginal Mesh Lawsuit CasesThe sizable number of lawsuits filed against Endo International is to be resolved with approximately $830 million. The women filing these lawsuits have claimed injury caused by vaginal mesh implants made by the company. This new large batch of resolved vaginal mesh lawsuits comes on the heels of the sizable number of cases that were concluded last year by the company. In those settlements, Endo paid out $54 million to lawsuit plaintiffs.

For years, vaginal and transvaginal mesh litigation has been considered one of the nation’s biggest medical mass tort legal issues involving tens of thousands of cases. Once considered a safe medical device, the vaginal mesh began having complications early on. By July 2011, the U.S. FDA (Food and Drug Administration) issued a medical device warning to consumers that there was a potential risk associated with using transvaginal and vaginal mesh products including those manufactured by Endo International, Ethicon, Johnson & Johnson and others.

In early 2014, the FDA announced that it would seek to reclassify many common vaginal mesh devices from its current Class II status to a higher risk Class III status. The reclassification of the device requires manufacturers of the mesh to submit proof of the efficacy and safety of their offered prolapse repair mesh devices before allowing them to be purchased in the medical marketplace. Continue reading

Bad Clutches Results in Major Harley RecallHarley Davidson has had a rough ride with its clutch systems in recent years and has recently announced the recall of 46,000 of its motorcycles citing a problem which is very similar to other recalls issued in the last two years. As the number of Harley Davidson motorcycles with defective clutches continues to mount, it is advisable that any Harley owner who has purchased a bike produced since 2013 investigate whether the recall affects his or her model. In the event that a faulty clutch system had resulted in an accident or injuries, victims may also be entitled to claim compensation for the cost of medical treatment and other costs.

Shifting Focus onto Clutch Systems

In 2013, Harley Davidson issued a recall of over 25,000 Touring motorcycles, citing an issue with the hydraulic clutch system that made it possible for the clutch to fail to disengage due to a lack of lift. The problem with this defect is that riders can find themselves unable to slow down or come to a stop, making it more difficult to avoid an accident or becoming the direct cause of a collision. The recall included a specific “do not ride” notice to owners of the bikes and a notice to dealers not to deliver any more of the vehicles until the issue had been repaired. Continue reading