Washington DC Injury Lawyer Blog

Federal Circuit Court of Appeals Affirms Dismissal of Claim for Injury Benefits Under Vaccine Act

September 4, 2012 | Lebowitz & Mzhen

The estate of a woman who died from vaccine-related complications may recover death benefits, but not injury benefits, under the federal Vaccine Act, according to a ruling by the Federal Circuit Court of Appeals in Griglock v. Secretary of Health and Human Services. A Special Master found that the woman’s death was attributable to an influenza vaccination, allowing the death benefits claim to proceed, but also found that the statute of limitations for an injury benefits claim had expired. The Court of Federal Claims and the Federal Circuit affirmed that decision.

The decedent, Sophie Griglock, received a vaccination for influenza on October 6, 2005, when she was seventy years old. In late November 2005, a neurologist diagnosed her with Guillian-Barré Syndrome (GBS), a disorder in which the immune system attacks the nervous system. It can cause paralysis and death due to an inability to breathe. Griglock died of GBS-related respiratory failure on May 11, 2007.

Griglock’s estate filed a petition for compensation with the Secretary of Health and Human Services (HHS) in April 2009. HHS did not contest the question of whether the vaccine caused Griglock’s GBS. It recommended death benefits of $250,000, the maximum amount allowed by the Vaccine Act. The estate also requested injury benefits under the Vaccine Act to compensate for Griglock’s medical expenses. The case went before a Special Master, who determined that the vaccine caused Griglock’s GBS and her GBS-related death. While this gave the estate standing to claim injury benefits, the Special Master determined that the claim, filed in 2009, was barred by the statute of limitations.

Washington DC Court of Appeals Affirms Summary Judgment in Favor of Hospital in Medical Malpractice Case, Based on Statute of Limitations

August 30, 2012 | Lebowitz & Mzhen

The District of Columbia Court of Appeals affirmed summary judgment in favor of the defendants in a medical malpractice lawsuit. The court based its decision in Atiba v. Washington Hospital Center, et al on a missed deadline under both DC’s statute of limitations and notice requirements for medical malpractice claims. The issue before the court concerned an alleged conflict between the deadline to file suit under the statute of limitations and the time period in which notice must be given.

The plaintiff, Kwaco Atiba, sought medical treatment from the defendants, Michelle Grant-Ervin, M.D. and Washington Hospital Center, between October 27 and November 2, 2006. Washington DC law requires a plaintiff to give “not less than” ninety days’ notice to a defendant before filing a medical malpractice suit. It also imposes a three-year statute of limitations for most personal injury claims, including medical malpractice. In the event that the required notice is given within the ninety-day period immediately prior to the running of the statute of limitations, the time to file suit is extended ninety days from the date the notice is served. Atiba served notice of the intended suit on the defendants on October 27, 2009, and filed suit on January 26, 2010. The filing date of the lawsuit was the ninety-first day after the date the notice was served.

The hospital moved for summary judgment, alleging that the plaintiff failed to file within the statute of limitations, and the trial court granted the motion. The trial court ruled that the ninety-first day after service of the required notice was “one day too late.” The plaintiff argued on appeal that the notice requirement and the statute of limitations conflicted, making it impossible to provide “not less than” ninety days’ notice and file suit within the ninety-day extended limitations period. The plaintiff interpreted the notice requirement as only permitting suit after ninety days had passed.

CPSC Imposes $1.5 Million Fine on Retailer Selling Children’s Clothing with Drawstrings

August 23, 2012 | Lebowitz & Mzhen

The U.S. Consumer Product Safety Commission (CPSC) announced that the retailer Burlington Coat Factory (BCF) has agreed to pay $1.5 million in civil penalties for violating regulations affecting children’s upper outerwear, such as jackets and sweaters. The CPSC regulates, and largely prohibits, the sale of children’s outerwear with drawstrings. This is due to the high risk of serious injury or death when drawstrings have caught on other items. The penalty to BCF is reportedly the largest one ever assessed by the CPSC for this particular regulation.

The CPSC issued its first set of guidelines regarding drawstrings on children’s upper and lower outerwear in 1996, which it included in a set of voluntary standards the following year. According to the CPSC, since the voluntary standards took effect, the number of deaths caused by children’s upper outerwear drawstrings has declined by seventy-five percent, and it has not received reports of any deaths from waist-level drawstrings.

The primary risk of upper outerwear drawstrings comes when a drawstring is caught on another object. The CPSC states that it has received twenty-six reports of cases where children were killed after a drawstring became tangled in an object. These included school bus doors and playground slides, among others. Drawstrings around the neck present a risk of strangulation, and waist drawstrings have resulted in children being dragged by vehicles when they are caught in doors. In the six-month period from November 2011 to May 2012, the CPSC says it issued eight recalls of products involving drawstring hazards. It has recalled a total of 130 drawstring products.

Wrongful Death Lawsuit Alleges Medical Negligence and Intentional Torts Against Doctor

August 16, 2012 | Lebowitz & Mzhen

A husband’s wrongful death lawsuit alleges that his wife’s doctor caused her death last year by prescribing a wide array of psychotropic medications. The suit further claims that the doctor defrauded her of nearly half a million dollars, which she contributed towards his research funding while under the influence of these medications. The two types of claims, brought in a single lawsuit, raise uncomfortable questions about the doctor/patient relationship.

Phyllis Harvey, described as a philanthropist who formed a foundation with her husband, Brian Harvey, to fund scholarships and engage in other charitable activities, died last year at the age of 59. She reportedly had a history of mental illness and alcoholism, and was diagnosed in 1999 with possible bipolar disorder, schizophrenia, or early dementia. She sought treatment from Dr. Alexander Bystritsky, a physician at the University of California, Los Angeles, beginning in 2004. Dr. Bystritsky allegedly put her on a regimen of multiple psychotropic medications, even though the 1999 diagnoses were never fully confirmed. Her prescribed medications included the anti-psychotic drug Seroquel and the anti-anxiety sedative Ativan.

Proposed Unique Identifier System for Medical Devices Could Improve Patient Safety

August 8, 2012 | Lebowitz & Mzhen

A new rule proposed by the U.S. Food and Drug Administration (FDA) would require most medical devices in the country to include a unique device identifier (UDI). This is a unique code system assigned to medical devices that, according to the FDA, would allow the agency to track problems with devices and develop more effective regulations to protect patient safety. Congress passed legislation, the Food and Drug Administration Amendments Act of 2007, that requires the FDA to promulgate regulations to implement a nationwide UDI system. The proposed rule will be open to public comment until November 7, 2012.

The FDA describes a UDI as a “unique numeric or alphanumeric code” assigned to a device. The UDI includes identifiers for the specific device and the device model, as well as production information including the serial number, the lot or batch number, and, if applicable, the device’s expiration date. The FDA is reportedly developing a database of “basic identifying elements” in UDIs that the public can access and review. A device’s UDI, the FDA says, will not include any personal identifying information about the person using the device.

Washington DC Wrongful Death Lawsuit Filed by Families of U.S. Citizens Killed in Drone Strikes

July 25, 2012 | Lebowitz & Mzhen

A wrongful death lawsuit filed in the U.S. District Court for the District of Columbia seeks damages from the federal government for the allegedly unlawful killings of United States citizens abroad. The families of several people killed overseas by unmanned drone aircraft are claiming violations of the decedents’ constitutional rights as U.S. citizens. Unlike many wrongful death lawsuits, this suit alleges violations of statutory and constitutional rights, rather than negligence, by the government. The lawsuit is sure to generate public controversy, particularly since the government asserted national security reasons for the drone attacks.

Nasser al-Aulaqi (sometimes spelled al-Awlaki) and Sarah Khan, with the assistance of the American Civil Liberties Union (ACLU), filed suit against federal government officials, including Secretary of Defense Leon Panetta and Central Intelligence Agency (CIA) Director David Petraeus, in mid-July 2012. Their complaint alleges that the federal government has engaged in targeted killings of suspected terrorists abroad since 2001. Anwar al-Aulaqi, an American citizen living in Yemen, was added to a “kill list” in late 2009 or early 2010, based on suspicion of terrorist activity or support.

On September 30, 2011, the complaint says, unmanned drones operated by the CIA and the Department of Defense fired missiles at a vehicle in Yemen containing Anwar al-Aulaqi. The blast killed al-Aulaqi and another U.S. citizen, Samir Khan. Another drone strike on October 14, 2011, also allegedly authorized by the defendants, killed at least seven people at a restaurant in Yemen, including another U.S. citizen, Anwar al-Aulaqi’s 16 year-old son Abdulrahman al-Aulaqi.

Sewing Needles Found in Sandwiches in Airplane Meals, One Passenger Injured

July 19, 2012 | Lebowitz & Mzhen

A bizarre discovery in several airplane meals has left one person injured and launched a two-country investigation. Passengers on several Delta Airlines flights found sewing needles in sandwiches included with the in-flight meals. The flights all originated in Amsterdam and were bound for the United States. Police in both the U.S. and the Netherlands are investigating the matter, as is Delta Airlines. All investigators are reportedly looking at the catering company that provided the meals.

Multiple Delta flights leave Amsterdam’s Schipol Airport for the U.S. every day. On July 15, 2012, it had seventeen such flights, and at least four of them had unpleasant surprises in the in-flight meals. On a flight bound for Minneapolis, a passenger bit into a hot turkey sandwich and reported feeling a “sudden jab” in the roof of his mouth. He said he thought it was a toothpick holding the sandwich together at first, but when he pulled it out of his mouth, he saw it was a one-inch long needle with sharp points on each end. A passenger and an air marshal on two different flights to Atlanta found needles. A needle turned up in a sandwich that had not been served to anyone on a flight to Seattle. The man on the Minneapolis flight, who declined medical treatment, appears to be the only injury.

“Failure to Warn” Claim Against Pharmaceutical Company Dismissed by Washington DC Judge

July 12, 2012 | Lebowitz & Mzhen

A federal district judge in Washington, DC has granted a pharmaceutical company’s motion for summary judgment in a lawsuit brought by a patient alleging the failure to warn of certain risks associated with the company’s drug. In Patteson, et al v. AstraZeneca, L.P., et al, the plaintiff allegedly suffered debilitating complications from prolonged use of the company’s anti-psychotic medication Seroquel. She filed suit against the company and her treating physician. The court granted AstraZeneca’s motion for summary judgment on the grounds that the company’s duty to warn of risks applied to the doctor, not the patient.

The plaintiff, Kay Patteson, sought treatment from Dr. John Maloney, also a defendant in the lawsuit, in May 2006, according to the court’s ruling. She complained of “anxiety, depression, chronic insomnia, and serious alcohol abuse and dependence.” After other drugs did not alleviate her insomnia, Dr. Maloney prescribed the anti-psychotic drug Seroquel for off-label insomnia treatment. Patteson’s symptoms improved at first, but then began to worsen in April 2007. She began to suffer “progressive weakness in her lower extremities and difficulty walking.” Several physicians could not determine the cause of her condition, although Dr. Maloney reduced her Seroquel dosage during this time. Most doctors attributed her symptoms to the large number of stressors in her life.

New National Safety Standards Issued for Children’s Play Yards

July 5, 2012 | Lebowitz & Mzhen

New safety standards set by the U.S. Consumer Product Safety Commission (CPSC) affecting “play yards,” portable playpens for infants and toddlers, will begin in December. Play yards are currently subject to voluntary safety standards, but the new standards will be mandatory for all manufacturers. During the four-year period ending in December 2011, according to the CPSC, play yards were involved in the deaths of over sixty children and injuries to nearly two hundred more. Play yards have reportedly been the subject of over twenty recalls during a twenty-five-year period. The new standards are part of a comprehensive set of reforms to children’s product safety known as Danny’s Law, named for a child who died due to a play yard collapse.

A typical play yard is a portable crib or playpen composed largely of mesh. In addition to acting as a crib for infants and toddlers, it can provide them an enclosed area in which to play. Children have died when a collapsing play yard traps them, while trapped under a mattress or other component, or by strangulation from straps attached to the sides. Some deaths resulted when children climbed out of a play yard and drowned in a nearby pool. The most common incident, according to the CPSC, involves a side rail collapse. In addition to the danger of a child getting out of the play yard after a collapse, it can also cause strangulation if a child’s neck is caught in the side rail. Side rail collapses account for up to ninety percent of reported play yard incidents and as many as one-third of play yard-related deaths. A side rail collapse reportedly caused the death of Danny Keysar, the namesake of Danny’s Law, in 1998 in Chicago.

Supreme Court Rules for Baseball Player in Sports Injury Case on Issue of Litigation Costs

June 28, 2012 | Lebowitz & Mzhen

A professional baseball player, Kouichi Taniguchi, brought an unusual claim to the U.S. Supreme Court. Taniguchi sued a hotel over an injury he sustained falling through a deck. The hotel won the case, and obtained a judgment against Taniguchi for “interpretation costs,” per a provision in federal law. Taniguchi fought this all the way to the Supreme Court, which ruled in his favor in May. The case demonstrates the complex nature of expenses in litigation, and how far some parties will go to get a non-prevailing party to pay, or how far a party will go not to have to pay. The amount in dispute was just over $5,000, which makes the case even more remarkable when one considers the cost of taking a case to trial, let alone to the Supreme Court.

Taniguchi is a professional baseball player from Japan. He reportedly played for Tokyo’s Yomiuri Giants, but left after only seven games due to an injured shoulder. He also played minor league ball in the United States for a time. In November 2006, he visited the Marianas Resort and Spa in Saipan. Saipan is an island in the Northern Marianas Islands, an unincorporated, organized territory of the United States in the Pacific Ocean. During a tour of the hotel, Taniguchi fell through a deck, sustaining injuries.