June 2011 Archives

Surgeons Who Tested Medtronic's Infuse Bone Graft Swayed by Millions?

June 29, 2011

Spinal fusion surgery is a procedure to correct problems with vertebrae by basically welding them together and allowing them to heal into one solid bone. This procedure may relieve symptoms of back problems such as fracture, scoliosis, spinal stenosis, spondylolisthesis, and degenerative disk disease. The idea is to prevent pain by preventing movement. Some form of bone material must be utilized in order to promote the fusion and healing. This procedure is called a bone graft and involves placing pieces of bone into the area between the vertebrae and sometimes additional pieces elsewhere for support. Previously, the only way to do this was by making an additional incision to harvest a bone graft from the hip (called an autograft). This meant a longer procedure time and possibly a more complicated healing process. Now, there are alternatives to bone grafts such as use of a cadaver bone (called an allograft) or the use of an artificial bone graft material.

Nine years ago the FDA approved Medtronic's Infuse Bone Graft for one particular type of spinal fusion surgery. It was one of the alternatives to harvesting a bone graft from the hip. Eventually it was also used, albeit off-label, with other types of spinal surgeries, such as cervical spine surgeries. Doctors are free to prescribe drugs beyond their official uses (though insurance companies, such as Medicare and Medicaid, may choose to reimburse only if there is a representation that the product will be used for its intended use). Some researchers estimate off-label uses at 85% of total Infuse use. What followed the extraneous uses were numerous reports of side effects and complications such as death, cancer, sterility, infections, bone dissolution, worsened back and leg pain, ectopic bone (bone outside of the target area), and swelling of the neck and throat area (leading to suffocation).

As a result, in the Fall of 2008, the Justice Department began to investigate. It turns out that some of the adverse side effects reported above had been found in 10-50% of patients who were given Infuse or its sister product during clinical trials funded by Medtronic over a decade long study. But not all of the findings (namely the risk of sterility) were reported in the research papers by Medtronic's surgeons or written on the product label. In a number of their papers regarding Infuse, they also failed to disclose their financial ties to Medtronic. Coincidentally, 15 of Medtronic's surgeons had been paid upwards of $62 million over the last 10 years for "unrelated" work.

The probe also revealed that the physicians who reviewed a sister product of Infuse, Amplify, completely omitted the 90-95% probability of a link between the product and cancer, which had been discussed in 15 of the 68 pages of the FDA's summary of the product. Furthermore, 3 of the surgeons who were involved in the trial of that product were paid at least $10 million by Medtronic since 2001.

Medtronic was directed not to destroy its reports. Presently, the Senate Finance Committee is investigating whether doctors with financial ties to Medtronic were aware of potentially serious complications with products yet failed to reveal those problems in published journal articles.

Resources:
Wall Street Journal, Medtronic Experts Held Back, Study Says, John Carreyrou and Tom McGinty, 06.29.2011.

Similar Blog Posts:
Forbes, Medical Journal Slams Medtronic Over Payments To Doctors, Matthew Herper, 06.28.2011.

By Kathleen Beatty

Hot Coffee Documentary: McDonald's Coffee Case Exposed, Screening Worldwide Now

June 28, 2011

imagesCABQYHX3.jpgSusan Saladoff's documentary Hot Coffee debuted this year in the Sundance Film Festival and premiered on HBO last night. It is about the tort reform movement in the United States and the public's perception of various aspects of personal injury lawsuits. I urge everyone to watch this documentary. You can view it on another broadcast date in the coming weeks or download from HBO On Demand. If you have not seen the film yet (without giving it all away), here are a few topics that were covered.

  • Of course, the McDonald's hot coffee case. Many people believe this case involved a woman who spilled coffee in her lap while driving, sustained little to no injury, and recovered millions. There are sure to be a few facts in the documentary that will surprise you.
  • Caps on damages and their impact on tax payers. The Gourley family in Nebraska tells a heartbreaking story about their son who was catastrophically injured by medical malpractice only to have his jury award capped, relegating him to public assistance for his care.
  • Chamber of Commerce: who they really are and what they really do.
  • Attacks by corporate campaigns on state judicial elections and legislatures, and the import of the jury system.
  • Gym, credit card, and employment waivers (including mandatory arbitration clauses), their (un)avoidability, and how they affect the severely injured. Former KBR/Halliburton employee Jamie Leigh Jones waited six years to get before a jury after being drugged, raped, and placed in a shipping container while working in Iraq.

Though this documentary is not perfect, it is very informative overall and a big step in the right direction. The Hot Coffee "Take Action" website has some great advice that can be utilized by people on both sides of the debate in light of the lack of public education and media attention to these issues. Regardless of whether you are for or against tort reform, the battle is best when well informed.

By Kathleen Beatty

BAR/BRI and Kaplan Antitrust Action: Ongoing and Looking Better for Class Members

June 26, 2011

If you took the bar exam, you probably took a course to prepare for it such as BAR/BRI, Kaplan, Pieper, or Ameribar. These courses provide sample test materials and live or digital legal education and practical advice for passing the test in each state. Over the years, BAR/BRI has been accused of entering into agreements to eliminate the competition to saturate and dominate the field. A few class action lawsuits were commenced, which are the only ones in history to contain a class of attorneys.

The latest BAR/BRI antitrust class action is not over yet. A California federal judge recently refused to sign off on a proposed settlement that would require West Publishing Corp., owner of BAR/BRI, to pay out $5.29 million in cash and Kaplan to supply coupons worth $150 each toward the future purchase of course materials to authorized claimants. If you took BAR/BRI, chances are you are now or will soon be an attorney and are not planning to go back to school ever again or anytime soon. If that is the case, coupons for Kaplan course materials are probably useless.

BAR/BRI has been through the rigmarole of antitrust class actions at least twice before, but the latest action is the first one where coupons have been integrated into the proposed settlement. In Ryan Rodriguez v. West Publishing Corp., the District Court approved a partial distribution of $30 million to authorized claimants, the balance of which will be distributed when appeals are resolved and the matter is final. The class members are those who purchased a full service course in the U.S. between August 1997 through July 31, 2006.

In Anthony Park v. Thomson Corp., BAR/BRI was required to, among other things, shell out $13 million. Class members include those who purchased a full service course in the U.S. between March 15, 2001 and January 4, 2008.

It remains to be seen whether class members will be adequately compensated and whether the settlement will effect meaningful change in the bar review industry. Hopefully scholarly coupons will not be a part of the final agreement.

Resources:
New York Law Journal, Coupons, Legal Fees Cause Judge to Reject BAR/BRI Settlement, Amanda Bronstad, 06.24.2011.

Rodriguez BAR/BRI Class Action Litigation Website.

Park BAR/BRI Settlement Website.

By Kathleen Beatty

New York State Budget Cuts Affect the Judicial System

June 23, 2011

The court system already was, by many accounts, backlogged, slow, and overburdened. In March, the governor and legislature cut the judiciary's budget by $170 million. All aspects of the judicial process will likely be affected by the cuts.

Now most courtrooms shut down a half hour earlier every day. Effective April 18, 2011, some small claims court night sessions are reduced from four nights to one night per week. 1719.jpg Weekend arraignment court in Queens is open for nine and a half hours per day now instead of sixteen (the law requires suspects to be brought before a judge within twenty-four hours). Hundreds of court employees, including clerks and court lawyers, were laid off. Even the money for judges' law books was cut.

The number of potential jurors for all kinds of cases was pared down. Deliberating jurors no longer receive free lunch. Jurors are no longer guarded by court officers during lunch hour. They are required to exit the court building to get lunch and required to wait in the line to go through security when they return to serve.

Personal injury attorneys are faced with the decision of whether to cut investigation and informal negotiation short and start suit earlier. Once in suit, an attractive option is to immediately request a preliminary conference. Several court officials have publicly questioned the cost effectiveness of the changes and whether the system will grind to a complete halt in coming months.

Resources: The New York Times, Cuts Could Stall Sluggish Courts at Every Turn, William Glaberson, 05.15.2011.

By Kathleen Beatty

New York Settlement Conferences by Judges Supported by Obama Administration

June 13, 2011

New York State received a $3 million federal grant to implement a test program designed to encourage early (or earlier) settlement of medical malpractice cases. The program requires that a judge with training in medical issues be assigned at the beginning of a case and frequent settlement conferences be held. A nurse with legal training assists the judge and lawyers must arrive with authority to settle the case. The injured party is not present and there is no jury.

The program intially began in the Bronx in cases against city hospitals and is presently being expanded to courts in Brooklyn and Manhattan, as well as to cases against private hospitals. The program is slated to begin in Buffalo courts in the fall.

Advocates of the program say it cuts down on time and costs of litigation for injured patients and defendants. Opponents of the program say it pressures attorneys to take a settlement amount that is less than fair. The important question is whether the system can save money and still accomplish the right results.

Resources: New York Times, William Glaberson, To Curb Malpractice, Judges Jump in Early, 06.12.2011.

By Kathleen E. Beatty

Filing Tort Cases in the New York State Courts Electronic Filing System (NYSCEF)

June 12, 2011

It is impossible to deny that e-filing is becoming exponentially more prevalent in the lives of New York tort attorneys. Westchester County is a mandatory e-filing court for tort cases as of March 1, 2011 and some judges are calling for it in all city courts. For those who have not delved in, here are a few things to consider about the New York State e-filing system.

Payment of court fees can be done by credit card and the system gives prompt updates via e-mail. That means not having to make the trip to court and not waiting for or paying for service to bring documents to and from court.

It can be a bit worrisome to fill out a form when you do not know what comes next. There is a training system to practice on before you go "live" with your e-filing. It is supposed to look just like the real system to allow you to get accumstomed to what to expect before you make a mistake. There is also a detailed user manual with pictures of portions of the website at different stages of filing.

Service is deemed complete when the e-mail confirmation of a filing is sent to the user who submitted the filing as well as the other users who have consented to e-filing in the case. An affidavit of service does not need to be filed.

Documents can be viewed electronically. If you are at your office, you do not have to find and rifle through a voluminous file. If you are out of your office but have an electronic device such as an ipad, you can view documents within seconds.

In many cases, you do not have to file or serve a hard copy. This saves time, money, ink, and paper.

Documents can be filed when the courts are closed, in fact, they can be filed at any time of the day or night. Some court rules provide that a document is considered to have been timely filed if it was filed by midnight of the due date.

It takes time to learn all of the rules of e-filing, just like anything else, but e-filing offers benefits that the traditional method cannot compete with. It is not perfect, of course, so there are plenty of rules for when the system fails. Entries on the federal system and errors in the state system to follow.

Resources: New York State Courts Website

Thomson Reuters News and Insight, Judge calls for legislation to mandate e-filing in NY courts, Jennifer Golson, 06.07.2011.

By Kathleen E. Beatty