http://www.nevadainjuriesblog.com/ en-us Copyright 2010 Tue, 01 Jun 2010 09:51:24 -0800 http://www.sixapart.com/movabletype/ http://blogs.law.harvard.edu/tech/rss The FDA issued a warning regarding the use of the marketed drugs Xenical and Alli. The warning identifies rare but serious liver injuries. Both weight-loss medications contain the active ingredient, Orlistat. There are currently thirteen reported cases of serious liver injuries throughout the world. The United States currently accounts for only one reported case. Currently, a cause-and-effect relationship has not been established. As a precaution and first step the FDA has approved new product labels, which outline the potential risks associated with the drugs. The agency lists and identifies symptoms users of the medications should be cognizant of. The symptoms include: itching, yellow eyes or skin, dark urine, loss of appetite, or light colored stools. The small number of cases makes it difficult to establish a causal relationship between the use of the drug and liver injury. If there is a link, it will become more apparent as knowledge of the symptoms and potential risk disseminates among the people using the drugs. For more information the FDA link is provided: http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm213470.htm http://www.nevadainjuriesblog.com/2010/06/dietary_drug_may_cause_liver_d.html http://www.nevadainjuriesblog.com/2010/06/dietary_drug_may_cause_liver_d.html Defective & Dangerous Products Medical Issues June 1, 2010 9:51 AM In principle, improvements in health care quality, and in safety outcomes and practices in U.S. facilities, ought to have a positive impact on the volume of malpractice claims against physicians and institutions. Malpractice claims are supposed to spin out of legitimate injuries to patients, so reducing the occurrence of those injuries ought to have a corresponding effect on the volume of litigation. In practice, however, this association has not previously been demonstrated. Despite its putative status, the link between safety outcomes and malpractice claims in U.S. hospitals and facilities is nevertheless potentially very important to policy. Such a link suggests that providers could improve their own malpractice risk by making health care safer; that the interests of patients and providers are potentially well aligned when risk is addressed in this way; and that policymakers might enact a new set of tools for reducing malpractice risk, focused on facilitating new patient safety interventions, quality-improvement activities, rootcause analysis efforts, and the like. The results? Our results showed a highly significant correlation between the frequency of adverse events and malpractice claims: On average, a county that shows a decrease of 10 adverse events in a given year would also see a decrease of 3.7 malpractice claims. The study indicated the policy implications of the results; From a policy perspective, the idea of a direct link between safety outcomes and the malpractice claims that spin out of them has several major implications. First is the premise that new safety interventions potentially can reduce the volume of malpractice litigation--a desirable result to seek out, even beyond the immediate impact of medical injuries avoided. Stated another way, improvements in safety performance have the potential to benefit both patients and providers and to align their interests while reducing litigation. A second implication is that the relationship between safety and malpractice is complex and not fully described by the simple notion of deterring acts of negligence through civil liability. Third is the observation that malpractice laws that place providers at risk for engaging in peer review risk-management activities, root-cause analysis, and the like, could have the perverse effect of detracting from broader patient safety efforts. In turn, that could increase the frequency of adverse events and preventable injuries and, indirectly, increase the volume of malpractice litigation itself. These kinds of relationships and concerns represent an entirely different set of levers for policymakers to consider in regard to malpractice, quite apart from more conventional statutory tort interventions, such as caps on damages in tort claims. For the full report, click here.]]> http://www.nevadainjuriesblog.com/2010/04/california_study_finds_correla.html http://www.nevadainjuriesblog.com/2010/04/california_study_finds_correla.html Medical Issues April 20, 2010 1:10 PM Posas v. Hortan, 126 Nev. Adv. Op. No. 12 (April 15, 2010), the Nevada Supreme Court addressed when it is appropriate for a sudden emergency instruction to be given to a jury. The case arose from an automobile accident. Nicole Horton rear-ended Amelia Posas when Posas stopped suddenly for a jaywalking pedestrian pushing a stroller. Horton, who was driving about three to four behind Posas, admitted that she was following Horton too close. Posas filed suit against Horton as a result of the accident. At trial, the jury was given a sudden emergency instruction, despite Posas' objection, and the jury returned a verdict for Horton. The sudden emergency instruction stated that "A person confronted with a sudden emergency which he does not create, who acts according to his best judgment or, because of insufficient time to form a judgment fails to act in the most judicious manner, is not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances." The Court concluded that the jury instruction was given inappropriately. First, the Court concluded that Horton wasn't faced with a sudden emergency because she was not suddenly placed in a position of peril through no negligence of her own. Instead, the Court concluded that she placed herself in a position of peril through her own negligence. Further, the Court stated that in order to request the sudden emergency instruction, the requesting party must have been affected by the emergency. The Court noted that if an emergency situation had been created by the pedestrian, it would have been an emergency that confronted Posas, not Horton. The Court clarified that the sudden emergency instruction is only appropriate when (1) unexpected conditions confront the actor requesting the instruction and (2) the actor was otherwise exercising reasonable care.]]> http://www.nevadainjuriesblog.com/2010/04/nevada_supreme_court_clarifies_1.html http://www.nevadainjuriesblog.com/2010/04/nevada_supreme_court_clarifies_1.html Automobile Accidents Nevada Law April 16, 2010 12:29 PM Las Vegas Sun reports that a state health investigation uncovered questionable procedures surrounding disposal of patient information at University Medical Center in Clark County. ... state health authorities have discovered an unknown number of unidentified people have keys to locked bins at the hospital where patient information sheets are deposited for shredding. UMC officials did not know who had keys to the bins, nor how many had been issued, according to a state Health Division report. Inspectors found four instances where people had been issued multiple keys without an explanation. "In other words, there was no way to tell whether the additional keys were replacing lost or stolen keys or were simply a second set for those individuals, or passed on to someone else," the report said. UMC will need to appeal the report or provide a plan to address the violation. The hospital faces a fine of up to $400, a state official said. Protecting patient privacy has been at the forefront of hospital operations nationwide since Congress passed the Health Insurance Portability and Accountability Act of 1996. Violations of HIPAA, as the act is known, can be investigated by the county district attorney, the state attorney general's office or the U.S. attorney's office. A person who violates a patient's privacy with the intent to sell information can be fined up to $250,000 and imprisoned for up to 10 years. ... HIPAA requires hospitals to make "reasonable efforts" to protect patient data, Brannman said, and leaves specific methods open to interpretation. He said UMC was doing everything necessary to abide by HIPAA by keeping the bins inside locked rooms or in locations that were in the open and visible to others at all times. UMC's precautions make it inconvenient if someone wanted to go "Dumpster diving" in the bins for patient information, he said. As for the state report, Brannman dismissed the inspector's notes as "anecdotal" and "that inspector's opinion." ... Brannman said he has 10 days to respond to the state's report and it may be disputed. Clark County Commissioner Steve Sisolak suggests that the hospital reduce the number of recycling boxes and install a shredder over each one, so the records are destroyed immediately. "I think this is a pretty easy one to solve," he said. ]]> http://www.nevadainjuriesblog.com/2010/03/privacy_concerns_at_umc_arise.html http://www.nevadainjuriesblog.com/2010/03/privacy_concerns_at_umc_arise.html Medical Issues March 22, 2010 7:44 AM here. For the FDA searchable database, click here. ]]> http://www.nevadainjuriesblog.com/2010/03/massive_hvp_recall_affects.html http://www.nevadainjuriesblog.com/2010/03/massive_hvp_recall_affects.html Defective & Dangerous Products March 18, 2010 3:41 PM National Highway Traffic Safety Administration issued a press release on Thursday, March 11, announcing that "the number of overall traffic fatalities reported at the end of 2009 reached the lowest level since 1954, declining for the 15th consecutive quarter." Once miles traveled are accounted for, this fatality rate could actually be the lowest level ever recorded, according to the release. "This is exciting news, but there are still far too many people dying in traffic accidents," said U.S. Transportation Secretary Ray LaHood. "Drivers need to keep their hands on the steering wheel and their focus on the road in order to stay safe." The projected fatality data for 2009 places the highway death count at 33,963, a drop of 8.9 percent as compared to the 37,261 deaths reported in 2008. The fatality rate for 2009 declined to the lowest on record, to 1.16 fatalities per 100 million Vehicle Miles Traveled (VMT) down from 1.25 fatalities per 100 million VMT in 2008. "This continuing decline in highway deaths is encouraging, but our work is far from over," said National Highway Traffic Safety Administrator David Strickland. "We want to see those numbers drop further. We will not stop as long as there are still lives lost on our nation's highways. We must continue our efforts to ensure seat belts are always used and stay focused on reducing distracted and impaired driving." The National Highway Traffic Safety Administration attributes the decline in 2009 to a combination of factors that include, high visibility campaigns like Click It or Ticket to increase seat belt use, and Drunk Driving. Over the Limit. Under Arrest which helps with the enforcement of state laws to prevent drunk driving and distracted driving. In addition, the decline is also the result of safer roads, safer vehicles and motorists driving less. ]]> http://www.nevadainjuriesblog.com/2010/03/highways_getting_safer_usdot_2.html http://www.nevadainjuriesblog.com/2010/03/highways_getting_safer_usdot_2.html Automobile Accidents March 15, 2010 8:59 AM Las Vegas Sun reports that the Ninth Circuit Court of Appeals upheld a Nevada law restricting advertising for brothels. The law was challenged under the First Amendment for violating the right to free speech. The Nevada law prohibits brothels from advertising in any county where the sale of sexual services is prohibited by state law or local ordinance. The law also limits advertising in counties where brothels are legal: advertisements are prohibited in public theaters, on the public streets of any city or town, or on any public highway. The court found that the law targets pure commercial speech, which enjoys less protection under the First Amendment than other types of speech. The court held that the restrictions imposed by the law are constitutional, because they "attain a reasonable fit between ends and means." The court stated, "By keeping brothel advertising out of public places where it would reach residents who do not seek it out, but permitting other forms of advertising likely to reach those already interested in patronizing the brothels, Nevada strikes a balance between its interest in maintaining economically viable, legal regulated brothels and its interest in severely limiting the commoditization of sex."]]> http://www.nevadainjuriesblog.com/2010/03/first_amendment_does_not_prohi.html http://www.nevadainjuriesblog.com/2010/03/first_amendment_does_not_prohi.html Nevada Law March 12, 2010 8:36 AM Cromer v. Wilson, 126 Nev. Adv. Op. No. 11 (March 11, 2010), the Nevada Supreme Court addressed the effect of this conclusive evidence of liability on the issues of comparative negligence and damages. The defendant was convicted of felony DUI and felony reckless driving in an accident that severely injured the plaintiff. The district court had allowed the jury to decide the issue of liability instead of granting the plaintiff's motion for summary judgment. The jury found the defendant liable. In determining liability, the jury was allowed to consider comparative negligence, and it found the plaintiff 25% at fault and the defendant 75% at fault. The jury returned a verdict in favor of the plaintiff and awarded $4,530,785.50 in damages. On appeal, the Nevada Supreme Court held that NRS 41.133 establishes a conclusive presumption of liability when an offender has been convicted of the crime that resulted in the injury to the victim. Thus, the district court should have granted the plaintiff's motion for summary judgment on the issue of liability, and the trial should have resolved only the issue of damages. However, the Court also held that NRS 41.133 does not abrogate the law regarding comparative negligence or damages. Therefore, while NRS 41.133 establishes a conclusive presumption of liability, a defendant may argue comparative negligence pursuant to NRS 41.141 to reduce an award of damages at a trial as to damages only.]]> http://www.nevadainjuriesblog.com/2010/03/nrs_41133_liability_does_not_a.html http://www.nevadainjuriesblog.com/2010/03/nrs_41133_liability_does_not_a.html Nevada Law March 11, 2010 2:17 PM Reno Gazette Journal, the Reno Police are relaunching a $36,000 campaign to increase traffic safety. Under the campaign, pedestrians and bicyclists may receive citations for violating safety laws. Reno Wheelmen official Spencer Ericksen estimates that 25 percent of bicyclists regularly break traffic laws. Common problem areas are bicyclists failing to stop at stop signs, riding against traffic, and riding on sidewalks. Bicyclists are not allowed to ride on sidewalks in downtown Reno, but they can ride on sidewalks elsewhere as long as they yield to pedestrians. The Reno Police Dept. offers tips to bicyclists and motorists: Bicyclist safety tips:

• Ride with traffic, not against it.
• Make turns the same way drivers do, using the same turn lanes.
• Signal turns.
• Maintain bicycles, including checking brakes and tires.
• In darkness, use good reflectors and wear bright clothing.
• Wear helmets.
• Use a rear view mirror attached to a helmet, glasses or handle bars.

Motorist Safety Tips

• Look for bicyclists before opening car doors when parked on the street.
• Do not overtake a bicyclist and make a right turn in front of the bicyclist.

]]> http://www.nevadainjuriesblog.com/2010/03/reno_traffic_safety_campaign_f.html http://www.nevadainjuriesblog.com/2010/03/reno_traffic_safety_campaign_f.html Safe Living March 9, 2010 1:51 PM Saylor v. Arcotta, 126 Nev. Adv. Op. No. 9 (March 4, 2010), a taxicab passenger was injured when his cab was in an accident. The passenger died during surgery after being hospitalized for a heart attack two weeks after the taxicab accident. The passenger's heirs sued Jack Saylor, the taxicab driver, and the cab company, Deluxe Taxi Cab Service. Saylor and the Deluxe Taxi learned through discovery that medical malpractice may have been the cause of the passenger's death. Saylor and Deluxe Taxi filed a third-party complaint against the passenger's treating physicians, respondents Dr. Karen Arcotta, Dr. Muhammad Bhatti, and Dr. Nancy Donahoe, for equitable indemnity and contribution. The one year statute of limitations for medical malpractice imposed by NRS 41A.097 had already passed. The issues presented to the Court were what limitations period applied to the third-party actions for equitable indemnity and contribution. Equitable Indemnity The Court held that "equitable indemnity claims that arise out of medical malpractice allegations are not subject to NRS 41A.097(2)'s limitations period for medical malpractice claims, but are instead subject to NRS 11.190(2)(c)'s limitations period for actions on implied contracts." Contribution The Court explained that "a contribution claim arises 'where a judgment has been entered in an action against two or more tortfeasors for the same . . . wrongful death.' " Pursuant to NRS 17.285(3), a contribution claim must be filed within 1 year after the judgment has become final by lapse of time for appeal or after appellate review. Thus, the Court concluded that "once a contribution claim arises, it is subject to a one-year statute of limitations." Click here for the Advanced Opinion]]> http://www.nevadainjuriesblog.com/2010/03/equitable_indemnity_and_contri.html http://www.nevadainjuriesblog.com/2010/03/equitable_indemnity_and_contri.html Nevada Law March 4, 2010 12:48 PM Law Vegas Review Journal reports that Nevada fines its motorists $250 for driving while uninsured and $500 for driving without valid registration, but the offenders are difficult to catch. According to the journal, "critics raised the privacy issue, although a spokesman for InsureNet said any information collected by the company would go into a national law enforcement computer network, and the company itself would not retain the information." No other state currently uses InsureNet to verify the insurance status of motorists. ]]> http://www.nevadainjuriesblog.com/2010/02/nevada_assembly_rejects_propos.html http://www.nevadainjuriesblog.com/2010/02/nevada_assembly_rejects_propos.html Nevada Law February 25, 2010 11:32 AM Senate report released Saturday. Among the report's finding was that "The totality of evidence suggests that GSK was aware of the possible cardiac risks associated with Avandia years before such evidence became public." The report concluded that "GSK had a duty to sufficiently warn patients and the FDA of its concerns in a timely manner." The report concluded that GSK failed to do so: "GSK executives intimidated independent physicians, focused on strategies to minimize findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that the rival drug ACTOS (pioglitazone) might reduce cardiovascular risk." According to the Associated Press, the FDA had "ordered a warning to be included on Avandia's label in 2007, saying that it might increase the risk of heart attacks, though the data on those risk was inconclusive." The Senate Report asks the FDA "why it allowed a clinical trial of Avandia to continue even after the agency estimated that the drug caused 83,000 heart attacks between 1999 and 2007." The FDA has issued a statement that review of Avandia is "ongoing," but has offered the following advice for patients who take rosiglitazone (Avandia):

• Don't stop taking your medication without talking with your health care professional.
• Discuss any questions or concerns you have about rosiglitazone with your health care professional.
• Read the Medication Guide that comes with each rosiglitazone prescription to better understand the risks and benefits of your medication.
• Report any side effects with rosiglitazone to FDA's MedWatch program either online, by regular mail, by fax, or by phone.

]]> http://www.nevadainjuriesblog.com/2010/02/avandia_controversy_senate_rep.html http://www.nevadainjuriesblog.com/2010/02/avandia_controversy_senate_rep.html Defective & Dangerous Products February 23, 2010 12:14 PM Law.com, the lawsuit discusses the "school district's official announcement of the launch of a program to provide every student with a laptop, which billed it as 'an authentic mobile 21st century learning environment' designed to ensure that 'all students have 24/7 access to school based resources.' " The AP reports that the webcams would only be activated by the schools' technology and security departments when a laptop was reported lost or stolen. The suit was filed by student Blake Robbins and his parents after Robbins was confronted by the assistant principal at his high school. The assistant principal allegedly told Robbins that he had been caught doing something inappropriate at home. The lawsuit doesn't indicate whether Robbins' laptop had been reported lost or stolen. The suit alleges violations of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, the Stored Communications Act, and Pennsylvania's wiretap statute. It also alleges violations of the Fourth Amendment, and federal civil rights laws.]]> http://www.nevadainjuriesblog.com/2010/02/21st_century_learning_environm.html http://www.nevadainjuriesblog.com/2010/02/21st_century_learning_environm.html Personal Injury Law February 19, 2010 9:01 AM NY Times, "The uncommon prosecution had ignited deep concern among health care workers and advocates for whistle-blowers about a potential chilling effect on the reporting of malpractice." Mitchell was acquitted after jury deliberations of only one hour. The NY Times reports that "Rebecca M. Patton, president of the American Nurses Association, called the verdict 'a resounding win on behalf of patient safety.' Ms. Patton said, 'The message the jury sent is clear: the freedom for nurses to report a physician's unsafe medical practices is non-negotiable.' " Mitchell has filed a civil complaint in federal court against the county and the hospital, seeking redress for violations of her due process rights, freedom of speech, violation of a Texas whistleblower statute, and tortious interference with business, among other things. ]]> http://www.nevadainjuriesblog.com/2010/02/texas_nurse_acquited_at_trial.html http://www.nevadainjuriesblog.com/2010/02/texas_nurse_acquited_at_trial.html Medical Issues February 16, 2010 7:36 AM Chicago Tribune notes, the Court struck down the under the Illinois Constitution because it "violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts." While the parties arguing for upholding the statute cited the several states which have enacted medical malpractice damage caps, the Illinois Supreme Court refused to uphold the statute based on the status quo. According to the Court's opinion, "That 'everybody is doing it," is hardly a litmus test for the constitutionality of the statute." ]]> http://www.nevadainjuriesblog.com/2010/02/illinois_cap_on_medical_malpra.html http://www.nevadainjuriesblog.com/2010/02/illinois_cap_on_medical_malpra.html Medical Issues February 4, 2010 1:22 PM