Denman Lerner Gundy Co, LPA

Denman Lerner Gundy Co, LPA Professional Legal Services

02/23/2016

By The Gundy Law Firm of The Gundy Law Firm posted in Personal Injury on Thursday, October 22, 2015.

I. TABLESAW INJURIES

In 2009, U.S. Consumer Product Safety Commission (CPSC) conducted a survey of stationary saw-related injuries occurring between January 1, 2007, and December 31, 2008 that were treated in one of the hospital emergency departments in the CPSC's National Electronic Injury Surveillance System (NEISS). According to the study, an estimated 67,300 stationary saw-related injuries occur each year, with an estimated injury cost of more than $2.36 billion per year.

89% of these injuries were to the fingers and 7% of them to the hands. After a doctor was consulted, 66% were lacerations (severe cuts), 12% were fractures, 12% were amputations, and 9% were avulsions (a cut to the point of becoming partially-detached).

41% of these injuries were caused by a dangerous phenomenon known as kickback. Kickback occurs when a piece of wood is unexpectedly thrown back at the person operating the table saw. When a table saw is in use, the blade spins towards the person operating the table saw. If the blade spun away from the operator, then the wood would not cut but would instead be shot away from the operator. As shown in the image below, as the back of the blade rises, it causes an initial lift.

kickback demonstrative.gif

When the blade reaches the top of the arc, that vertical lift turns into a horizontal thrust before turning downwards. As the wood is pushed through the blade, the back part of the blade can sometimes grip the wood, causing the wood to lift upwards and fly out of control towards the operator.

This is very dangerous. Considering the average speed of a table saw is a little less than 150 mph, even with interference from the wood, the saw can still hurl objects over 100 mph. And when the saw causes the wood to fly out of control, the fingers and hands maneuvering the wood can also fly out of control, often contacting the blade in the process. Accordingly, in the CPSC study, when kickback was the cause of the injury, the operator's hand was pulled into the saw in 65% of the cases. This is why kickback is one the greatest fears for table saw operators.

II. SAWSTOP TECHNOLOGY

In 1999, Dr. Stephen Gass invented the Sawstop, something that, in his words, could prevent the "vast majority" of these table saw injuries. The Sawstop is flesh-detecting technology. It sends an electrical signal through the blade of the table saw. This signal is monitored, and if the Sawstop detects a change in the signal, the automatic braking system is activated, which causes the blade to stop within five milliseconds. Wood does not activate Sawstop because wood is not a good conductor of electricity. But the human body is a much better conductor. So if the operator's finger contacts the blade, the Sawstop recognizes the change in the current and activates the braking system.

III. INDUSTRY RELUCTANCE

This seemingly revolutionary technology is not well-taken by the major table saw manufacturers. Almost none of these manufacturers incorporate flesh-detecting technology into their table saws. Manufacturers cite three reasons for not incorporating this technology.

First and most importantly, the Sawstop is costly. In 2011, adding Sawstop technology would mean about $100-$150 in additional costs per table saw, and when a table saw costs about $175, that increase in cost would have a huge impact on production and sales. Second, the Sawstop would make the ordinary, and generally portable, table saw much heavier and harder to move. Finally, Sawstop has design problems of its own. The Sawstop is prone to malfunction when cutting wet or pressure-treated wood, which can be significant because contractors are likely exposed to the elements and rough treatment.

IV. OSARIO V. ONE WORLD TECHS., INC., 659 F.3d 81 (1st Cir. 2011)

Carlos Osorio was a floor installer in Massachusetts. On April 19, 2005, Osario's hands slipped while cutting a piece of floor board with a table saw, badly injuring four fingers on his left hand. Osario brought a products liability claim against the table saw manufacturer, claiming that the manufacturer was negligent and breached the implied warranty of merchantability. Osario argued that the table saw was unreasonably dangerous because it failed to incorporate Sawstop technology.

The case went to jury, and even though Osario only asked for $250,000, the jury awarded Osario $1.5 million. Although Osario was found to be 35% to blame for the accident, that was irrelevant because, in addition to the negligence claim, the jury also found the manufacturer liable for a breach of the implied warranty of merchantability.

After trial, the manufacturer moved for judgment as a matter of law, which was denied by the trial court. The manufacturer later appealed, arguing that Osario failed to provide sufficient evidence of a design defect by failing to prove a feasible alternative existed.

The First Circuit Court of Appeals, applying Massachusetts law, rejected this argument and found sufficient evidence of a defective design. Massachusetts courts follow the Second Restatement of Torts for warranty liability claims. And under the Second Restatement, to satisfy the implied warranty of merchantability, the manufacturer must design products so that they are "fit for the ordinary purposes for which such goods are used."

"A product is 'reasonably fit' for its purposes if the design prevents the 'reasonably foreseeable risks attending the product's use in that setting." A reasonably fit product does not have to be a risk-free product, however. A product that creates a foreseeable risk of harm may still be reasonably fit. The true question is whether the risk was "unreasonable."

In determining what is "unreasonable," courts look to the following factors:[1] the gravity of the danger posed by the challenged design;[2] the likelihood that such danger would occur;[3] the mechanical feasibility of a safer alternative design;[4] the financial cost of an improved design; and [5] the adverse consequences to the product and to the consumer that would result from an alternative design.

A plaintiff is not required to prove all of these factors as a part of her prima facie case. Rather, a jury must weigh them all accordingly.

The manufacturer argued that Osario failed to present evidence of a feasible, cost-effective alternative, and because no feasible alternative was presented, Osario failed to prove a design defect. But the First Circuit noted that Osario was not required to present evidence of a feasible alternative. The alternative's feasibility is just one factor weighed by the jury. The jury was free give more weight to the other factors. Accordingly, a reasonable juror could find that the safety benefits provided by Sawstop technology outweighed the costs.

V. SUBSEQUENT LITIGATION

After the Osario case, table saw litigation skyrocketed. Indeed, it was national legal news when a federal judicial panel declined to join 42 different lawsuits regarding the failure of various table saw manufacturers to incorporate Sawstop technology into their table saws.

VI. CONSUMER PRODUCT SAFETY COMMISSION RULEMAKING

SawStop technology is at the center of an ongoing rulemaking by the CPSC. In 2003, SawStop filed a petition with the agency, and in 2011, the CPSC issued an Advanced Notice of Proposed Rulemaking (ANPR) for regulations that would require table saws to meet new performance standards aimed at preventing finger amputations and injuries from contact with spinning blades. The CPSC now plans to issue a Notice of Proposed Rulemaking by October 2015.

If you have any questions on this issue, contact us.

Tags: Ohio personal injury lawyers

Related Posts: Damages in Personal Injury Cases, Personal Injury: Back Injuries, Personal Injury Time Limitations in Ohio, Legal Issues Dealing with Automobile Recalls

02/23/2016

By The Gundy Law Firm of The Gundy Law Firm posted in Malpractice on Thursday, October 22, 2015.

It is well known that prescription painkillers are addictive and susceptible to abuse. This is one of the reasons why the medical community has strayed away from prescribing opioids. Opioids are highly effective and highly addictive pain relievers such as hydrocodone, oxycodone, morphine, hydromorphone, and meperidine. While opioids can be dangerous, they can also play an important role in pain management for patients with more serious pain issues. Supported by growing research saying the risks of opioids are more manageable than previously thought, the medical community became more comfortable with prescribing opioids and loosened many restrictions on their use starting in the 1990s. Since then, the number of opioid prescriptions has skyrocketed.

And with the increase in use came an increase in misuse. The Centers for Disease Control and Prevention (CDC) have said "prescription drug abuse is the fastest growing drug problem in the United States." According to the CDC, since 2000, the number of deaths caused by prescription painkillers has quadrupled. In 2010, the CDC attributed over 16,000 deaths to drug overdoses. Deaths attributed to drug overdoses now outnumber deaths from motor vehicle accidents. And opioids are a driving force behind these deaths. The U.S. Department of Health and Human Services (HHS) has said that nearly 60 percent of deaths caused by drug overdoses involve opioids.

While these statistics are startling, they should not be surprising considering the highly addictive nature of opioids. Addiction, after all, is a disease. As one scholar put it:

The disease of addiction prevents an individual from being able to stop taking the drugs despite knowledge of adverse consequences. Like alcoholism, it is not controlled by willpower. The disease of addiction is a mental disability that presents with a myriad of hallmark signs and symptoms that are well known and readily identifiable in the medical community.

And this disease can be acquired through a prescription. Accordingly, physicians prescribing opioids must take special care in prescribing opioids and monitoring the patient's use thereafter. Failure to do so can result in medical malpractice liability. To satisfy the standard of care, the physician can do a number of things.

First, the physician should screen the patient to determine whether the benefits of opioids outweigh the risks. The physician should interview the patient and conduct a thorough medical history and physical examination, looking for various risk factors associated with substance abuse such as illegal drug use, prior substance abuse, concurrently using other prescribed painkillers like benzodiazepines, psychological disorders, unemployment status, among other things. The physician might also use various tests to screen such as the Drug Abuse Screening Test (DAST), the Diagnosis, Intractability, Risk, Efficacy (DIRE) tool, Opioid Risk Tool (ORT), and Screener and Opioid Assessment for Patients with Pain (SOAPP). The physician could even use urine, hair, and blood testing to find evidence of risk factors. But specifically in Ohio, physicians are required to check Ohio's prescription drug database to look for the patient's relevant drug activity.

Second, if the physician screens the patient and still finds opioids appropriate, the physician should fully engage the patient. The physician should fully explain the risks involved to the patient before getting consent to the treatment. The physician could also ask the patient to sign an opioid treatment agreement, detailing any risks and what is expected between the physician and the patient. Involving the patient's family in the agreement can make treatment even more effective.

Third, if both the physician and patient agree to the treatment, the physician should nonetheless avoid opioid use as much as possible and use the minimal amount necessary. The use of the highly addictive opioids should be a last resort. If appropriate, physicians should first use non-opioid painkillers or alternative therapies such as physical, psychological, or occupational therapy. But once opioids become the only appropriate option, the doctor should prescribe the minimal dosage, recommended for not more than 50 mg of the Morphine Equivalent Dosage (MED), and for the shortest applicable period.

Fourth, the physician should actively monitor the effectiveness and necessity of the treatment as well as the patient's compliance with the treatment, frequently checking in with the patient, other health care providers, and any other relevant source of information. In so doing, further drug testing may be required.

Fifth, if treatment is found to be ineffective or unnecessary, or if the patient is non-compliant with the treatment, the doctor should modify the use of opioids or pursue other forms of treatment.

Failure to do any of the above can be malpractice, and not only with regard to opioids. Central Nervous System (CNS) depressants, including propofol, barbiturates, and benzodiazepines like alprazolam and diazepam, are another category of prescription drugs prone to abuse for their euphoric effects. Yet another group of prescription drugs that are often abused is stimulants, which include methylphenidate, dextroamphetamine, and pemoline. Failing to take special care in prescribing these drugs can be malpractice as well.

If you have any questions about this issue, please contact us.

Tags: Ohio malpractice attorneys

Related Posts: Shoulder Dystocia Injuries and Medical Malpractice, New Technology May Assist Medical Malpractice Plaintiffs, Can an Emergency Room Refuse Care Due to Inability to Pay?, Malpractice: Nurses can be Culpable Too

01/12/2016

Shoulder Dystocia Injuries and Medical Malpractice



By The Gundy Law Firm of The Gundy Law Firm posted in Malpractice on Friday, September 18, 2015.

Shoulder dystocia is a type of complication occurring during childbirth. It is one of the major hot spots for medical malpractice litigation today. This type of dystocia can cause serious nerve damage, leading to temporary or sometimes permanent shoulder injuries for the victim. Although relatively rare, it is a real risk that every mother and fetus face during childbirth.

Dystocia means difficult labor. In the normal vaginal delivery, both the mother and clinician work to deliver the fetus. Through uterine contractions and maternal exertion, a fetus passes through the birth canal, eventually delivering the head of the fetus out of the mother. The physician may also use traction, or the gentle pulling of the fetus, to complete the delivery. Sometimes, however, the shoulder of the fetus catches onto the p***c bone. Pushing or pulling the fetus out of the birth canal when the fetus is caught can cause serious injury to the fetus and to the mother. A fetus may suffer a fractured clavicle, nerve damage, or even death from asphyxiation, and the mother may suffer from post-partum hemorrhage, vaginal fistula, episiotomy tears, and uterine rupture.

For the fetus, the most common injury is a brachial plexus injury. This type of injury involves nerve damage to the shoulder region. When the fetus is caught on the p***c bone during childbirth, pushing or pulling on the fetus's shoulder can stretch, tear, or even rip out the nerves from the spine. Permanent nerve damage can result, leading to pain, loss of sensation, muscle weakness, and even paralysis of the arms and shoulders.

Shoulder dystocia injuries can be serious, but they are relatively rare. Shoulder dystocia has been found to occur between 1 in 67 to 1 in 200 deliveries. Nonetheless, shoulder dystocia injuries remain a hotspot for medical malpractice litigation. Shoulder dystocia malpractice claims typically result in two ways.

The first concerns the physician's failure to prevent the dystocia from occurring in the first place. The only real way for a physician to do this is by performing a caesarean section ("C-section"). A C-section might not be the right decision, however. Research suggests that brachial plexus injuries may still occur, regardless of whether a C-section is performed, and a C-section can also put a mother's health at risk. But a C-section will remove the risk of dystocia-caused injuries, and the physician should consider a C-section when any red flags pointing to dystocia exist. Some of these red flags include: 1) abnormal labor patterns; 2) post-term gestation; 3) labor-induced pregnancy; 4) maternal diabetes; 5) maternal obesity; 6) multiparity (giving birth to multiple children during childbirth or having previously gone through childbirth; 7) macrosomia (large-bodied infants); 8) history of macrosomia; 9) history of shoulder dystocia. Failure to perform a C-section when these factors exist could be malpractice.

The second concerns the physician's inappropriate use of traction. During a normal vaginal delivery, a physician may use traction after the delivery of the fetus's head, but when shoulder dystocia occurs, the traction may cause brachial plexus and other injuries when shoulder dystocia occurs. Thus, while a physician is allowed to pull, pulling too hard may constitute malpractice.

If you have any questions about this issue, please contact us.

01/12/2016

By The Gundy Law Firm of The Gundy Law Firm posted in Personal Injury on Thursday, October 22, 2015.

I. TABLESAW INJURIES

In 2009, U.S. Consumer Product Safety Commission (CPSC) conducted a survey of stationary saw-related injuries occurring between January 1, 2007, and December 31, 2008 that were treated in one of the hospital emergency departments in the CPSC's National Electronic Injury Surveillance System (NEISS). According to the study, an estimated 67,300 stationary saw-related injuries occur each year, with an estimated injury cost of more than $2.36 billion per year.

89% of these injuries were to the fingers and 7% of them to the hands. After a doctor was consulted, 66% were lacerations (severe cuts), 12% were fractures, 12% were amputations, and 9% were avulsions (a cut to the point of becoming partially-detached).

41% of these injuries were caused by a dangerous phenomenon known as kickback. Kickback occurs when a piece of wood is unexpectedly thrown back at the person operating the table saw. When a table saw is in use, the blade spins towards the person operating the table saw. If the blade spun away from the operator, then the wood would not cut but would instead be shot away from the operator. As shown in the image below, as the back of the blade rises, it causes an initial lift.

kickback demonstrative.gif

When the blade reaches the top of the arc, that vertical lift turns into a horizontal thrust before turning downwards. As the wood is pushed through the blade, the back part of the blade can sometimes grip the wood, causing the wood to lift upwards and fly out of control towards the operator.

This is very dangerous. Considering the average speed of a table saw is a little less than 150 mph, even with interference from the wood, the saw can still hurl objects over 100 mph. And when the saw causes the wood to fly out of control, the fingers and hands maneuvering the wood can also fly out of control, often contacting the blade in the process. Accordingly, in the CPSC study, when kickback was the cause of the injury, the operator's hand was pulled into the saw in 65% of the cases. This is why kickback is one the greatest fears for table saw operators.

II. SAWSTOP TECHNOLOGY

In 1999, Dr. Stephen Gass invented the Sawstop, something that, in his words, could prevent the "vast majority" of these table saw injuries. The Sawstop is flesh-detecting technology. It sends an electrical signal through the blade of the table saw. This signal is monitored, and if the Sawstop detects a change in the signal, the automatic braking system is activated, which causes the blade to stop within five milliseconds. Wood does not activate Sawstop because wood is not a good conductor of electricity. But the human body is a much better conductor. So if the operator's finger contacts the blade, the Sawstop recognizes the change in the current and activates the braking system.

III. INDUSTRY RELUCTANCE

This seemingly revolutionary technology is not well-taken by the major table saw manufacturers. Almost none of these manufacturers incorporate flesh-detecting technology into their table saws. Manufacturers cite three reasons for not incorporating this technology.

First and most importantly, the Sawstop is costly. In 2011, adding Sawstop technology would mean about $100-$150 in additional costs per table saw, and when a table saw costs about $175, that increase in cost would have a huge impact on production and sales. Second, the Sawstop would make the ordinary, and generally portable, table saw much heavier and harder to move. Finally, Sawstop has design problems of its own. The Sawstop is prone to malfunction when cutting wet or pressure-treated wood, which can be significant because contractors are likely exposed to the elements and rough treatment.

IV. OSARIO V. ONE WORLD TECHS., INC., 659 F.3d 81 (1st Cir. 2011)

Carlos Osorio was a floor installer in Massachusetts. On April 19, 2005, Osario's hands slipped while cutting a piece of floor board with a table saw, badly injuring four fingers on his left hand. Osario brought a products liability claim against the table saw manufacturer, claiming that the manufacturer was negligent and breached the implied warranty of merchantability. Osario argued that the table saw was unreasonably dangerous because it failed to incorporate Sawstop technology.

The case went to jury, and even though Osario only asked for $250,000, the jury awarded Osario $1.5 million. Although Osario was found to be 35% to blame for the accident, that was irrelevant because, in addition to the negligence claim, the jury also found the manufacturer liable for a breach of the implied warranty of merchantability.

After trial, the manufacturer moved for judgment as a matter of law, which was denied by the trial court. The manufacturer later appealed, arguing that Osario failed to provide sufficient evidence of a design defect by failing to prove a feasible alternative existed.

The First Circuit Court of Appeals, applying Massachusetts law, rejected this argument and found sufficient evidence of a defective design. Massachusetts courts follow the Second Restatement of Torts for warranty liability claims. And under the Second Restatement, to satisfy the implied warranty of merchantability, the manufacturer must design products so that they are "fit for the ordinary purposes for which such goods are used."

"A product is 'reasonably fit' for its purposes if the design prevents the 'reasonably foreseeable risks attending the product's use in that setting." A reasonably fit product does not have to be a risk-free product, however. A product that creates a foreseeable risk of harm may still be reasonably fit. The true question is whether the risk was "unreasonable."

In determining what is "unreasonable," courts look to the following factors:[1] the gravity of the danger posed by the challenged design;[2] the likelihood that such danger would occur;[3] the mechanical feasibility of a safer alternative design;[4] the financial cost of an improved design; and [5] the adverse consequences to the product and to the consumer that would result from an alternative design.

A plaintiff is not required to prove all of these factors as a part of her prima facie case. Rather, a jury must weigh them all accordingly.

The manufacturer argued that Osario failed to present evidence of a feasible, cost-effective alternative, and because no feasible alternative was presented, Osario failed to prove a design defect. But the First Circuit noted that Osario was not required to present evidence of a feasible alternative. The alternative's feasibility is just one factor weighed by the jury. The jury was free give more weight to the other factors. Accordingly, a reasonable juror could find that the safety benefits provided by Sawstop technology outweighed the costs.

V. SUBSEQUENT LITIGATION

After the Osario case, table saw litigation skyrocketed. Indeed, it was national legal news when a federal judicial panel declined to join 42 different lawsuits regarding the failure of various table saw manufacturers to incorporate Sawstop technology into their table saws.

VI. CONSUMER PRODUCT SAFETY COMMISSION RULEMAKING

SawStop technology is at the center of an ongoing rulemaking by the CPSC. In 2003, SawStop filed a petition with the agency, and in 2011, the CPSC issued an Advanced Notice of Proposed Rulemaking (ANPR) for regulations that would require table saws to meet new performance standards aimed at preventing finger amputations and injuries from contact with spinning blades. The CPSC now plans to issue a Notice of Proposed Rulemaking by October 2015.

If you have any questions on this issue, contact us.

Tags: Ohio personal injury lawyers

01/01/2016

Medical Malpractice and Drug Overdoses



By The Gundy Law Firm of The Gundy Law Firm posted in Malpractice on Thursday, October 22, 2015.

It is well known that prescription painkillers are addictive and susceptible to abuse. This is one of the reasons why the medical community has strayed away from prescribing opioids. Opioids are highly effective and highly addictive pain relievers such as hydrocodone, oxycodone, morphine, hydromorphone, and meperidine. While opioids can be dangerous, they can also play an important role in pain management for patients with more serious pain issues. Supported by growing research saying the risks of opioids are more manageable than previously thought, the medical community became more comfortable with prescribing opioids and loosened many restrictions on their use starting in the 1990s. Since then, the number of opioid prescriptions has skyrocketed.

And with the increase in use came an increase in misuse. The Centers for Disease Control and Prevention (CDC) have said "prescription drug abuse is the fastest growing drug problem in the United States." According to the CDC, since 2000, the number of deaths caused by prescription painkillers has quadrupled. In 2010, the CDC attributed over 16,000 deaths to drug overdoses. Deaths attributed to drug overdoses now outnumber deaths from motor vehicle accidents. And opioids are a driving force behind these deaths. The U.S. Department of Health and Human Services (HHS) has said that nearly 60 percent of deaths caused by drug overdoses involve opioids.

While these statistics are startling, they should not be surprising considering the highly addictive nature of opioids. Addiction, after all, is a disease. As one scholar put it:

The disease of addiction prevents an individual from being able to stop taking the drugs despite knowledge of adverse consequences. Like alcoholism, it is not controlled by willpower. The disease of addiction is a mental disability that presents with a myriad of hallmark signs and symptoms that are well known and readily identifiable in the medical community.

And this disease can be acquired through a prescription. Accordingly, physicians prescribing opioids must take special care in prescribing opioids and monitoring the patient's use thereafter. Failure to do so can result in medical malpractice liability. To satisfy the standard of care, the physician can do a number of things.

First, the physician should screen the patient to determine whether the benefits of opioids outweigh the risks. The physician should interview the patient and conduct a thorough medical history and physical examination, looking for various risk factors associated with substance abuse such as illegal drug use, prior substance abuse, concurrently using other prescribed painkillers like benzodiazepines, psychological disorders, unemployment status, among other things. The physician might also use various tests to screen such as the Drug Abuse Screening Test (DAST), the Diagnosis, Intractability, Risk, Efficacy (DIRE) tool, Opioid Risk Tool (ORT), and Screener and Opioid Assessment for Patients with Pain (SOAPP). The physician could even use urine, hair, and blood testing to find evidence of risk factors. But specifically in Ohio, physicians are required to check Ohio's prescription drug database to look for the patient's relevant drug activity.

Second, if the physician screens the patient and still finds opioids appropriate, the physician should fully engage the patient. The physician should fully explain the risks involved to the patient before getting consent to the treatment. The physician could also ask the patient to sign an opioid treatment agreement, detailing any risks and what is expected between the physician and the patient. Involving the patient's family in the agreement can make treatment even more effective.

Third, if both the physician and patient agree to the treatment, the physician should nonetheless avoid opioid use as much as possible and use the minimal amount necessary. The use of the highly addictive opioids should be a last resort. If appropriate, physicians should first use non-opioid painkillers or alternative therapies such as physical, psychological, or occupational therapy. But once opioids become the only appropriate option, the doctor should prescribe the minimal dosage, recommended for not more than 50 mg of the Morphine Equivalent Dosage (MED), and for the shortest applicable period.

Fourth, the physician should actively monitor the effectiveness and necessity of the treatment as well as the patient's compliance with the treatment, frequently checking in with the patient, other health care providers, and any other relevant source of information. In so doing, further drug testing may be required.

Fifth, if treatment is found to be ineffective or unnecessary, or if the patient is non-compliant with the treatment, the doctor should modify the use of opioids or pursue other forms of treatment.

Failure to do any of the above can be malpractice, and not only with regard to opioids. Central Nervous System (CNS) depressants, including propofol, barbiturates, and benzodiazepines like alprazolam and diazepam, are another category of prescription drugs prone to abuse for their euphoric effects. Yet another group of prescription drugs that are often abused is stimulants, which include methylphenidate, dextroamphetamine, and pemoline. Failing to take special care in prescribing these drugs can be malpractice as well.

If you have any questions about this issue, please contact us.

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