Monday, April 27, 2009

Some interesting health law decisions that blend the statutory with the common law

Nursing homes -- Settlement -- Equitable subrogation -- Hospitals -- Action by nursing home against hospital seeking to recover amounts paid in settlement of former patient's claims, which were based on sacral wound which patient had when she was discharged from nursing home and for which patient subsequently received hospital treatment on three different occasions, alleging that hospital's negligent treatment of patient was primary cause of patient's damages -- Limitation of actions -- Limitations period for equitable subrogation action did not begin to run until nursing home made payment to patient -- Nursing home's pleadings adequately described reason it made payment to patient -- Sovereign immunity -- Notice of claim -- Nursing home's failure to present claim in writing to Department of Financial Services within three years after claim arose not basis for granting summary judgment in favor of hospital and dismissing case with prejudice where at time of dismissal the applicable limitations periods had not yet expired -- Remand for entry of final judgment dismissing cause without prejudice for failure to comply with section 768.28(6)(a)
Reported at 34 Fla. L. Weekly D723a

Nursing homes -- Arbitration -- Error to compel arbitration of claims brought on behalf of nursing home resident who died from neck injury she received at the facility where plaintiff argued that arbitration provision in nursing home admission agreement was unconscionable because decedent had no choice but to sign agreement in order to obtain necessary medical care and treatment and because decedent did not understand agreement or the rights she was waiving by signing the agreement -- Where plaintiff's written response in opposition to motion to compel and arguments at non-evidentiary hearing on motion raised disputed issues of fact as to the “making of” the arbitration agreement, trial court was required by statute to conduct evidentiary hearing to resolve disputed issues before sending case to arbitration
Reported at 34 Fla. L. Weekly D719a

Nursing homes -- Complaint seeking both survival and wrongful death damages -- Election of remedy -- Trial court order dismissing complaint and granting plaintiff twenty days to file amended complaint in which she elects remedy of either survival damages or wrongful death damages -- Certiorari relief is not available because plaintiff cannot demonstrate that she will be irreparably harmed by electing her remedy at pleading stage -- Any error in trial court's ruling can be corrected in postjudgment appeal
Reported at 34 Fla. L. Weekly D724a

Contrast Dye (False Advertising): GE HEALTHCARE ORDERED TO PAY $11.4 MILLION OVER FALSE AD CLAIM, Bracco Diagnostics v. Amersham Health, 25 No. 3 Andrews Pharmaceutical Litig. Rep. 1, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A New Jersey federal judge has ordered GE Healthcare to pay $11.4 million in damages to rival Bracco Diagnostics for knocking the company's X-ray contrast dye in an ad campaign. During the 2007 trial in the U.S. District Court for the District of New Jersey, Bracco argued that GE and predecessors Amersham Health Inc., Amersham Health AS and Amersham PC violated the federal trademark law by making false and misleading advertising claims.

BRISTOL-MYERS SETTLES PLAVIX COVER-UP CLAIMS FOR $2.1 MILLION, FTC v. Bristol-Myers Squibb Co., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 2, Andrews Pharmaceutical Litigation Reporter April 20, 2009
Bristol-Myers Squibb Co. will pay $2.1 million in civil penalties to settle charges that it lied to federal regulators about a silent agreement not to compete with Apotex Inc. once the generics maker unveiled its own version of the popular blood thinner Plavix. The settlement, approved in a unanimous vote of the Federal Trade Commission's four members, was filed with the U.S. District Court for the District of Columbia March 26.
Briefs and Other Related Documents: 2009 WL 964937, 2009 WL 964935, 2009 WL 964932

FIFTH CIR. AFFIRMS LILLY WIN IN TEXAS ZYPREXA SUICIDE LAWSUIT, Ebel v. Eli Lilly & Co., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 3, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A federal appeals court has upheld a ruling for Eli Lilly & Co. in a failure- to-warn suit alleging a Texas man's use of the antidepressant Zyprexa led him to commit suicide. The 5th U.S. Circuit Court of Appeals unanimously affirmed a federal judge's decision granting Lilly's motion for summary judgment under the "learned intermediary" doctrine.The judge had said Philip Ebel's physician knew of Zyprexa's possible side effects.

FEDERAL JUDGE EXPANDS COVERAGE FOR PLAN B, Tummino v. Torti, 25 No. 3 Andrews Pharmaceutical Litig. Rep. 4, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A federal judge in Brooklyn has ordered the Food and Drug Administration to allow sales of Plan B emergency contraception to women under the age of 17 without a prescription. U.S. District Judge Edward R. Korman of the Eastern District of New York criticized current and former FDA officials for using "political considerations, delays and implausible justifications" to hold up the over-the- counter sale of the birth control drug.

CLASS SUIT OVER VIOXX CONSUMER COSTS IS REJECTED IN N.J., In re Vioxx Litig., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 5, Andrews Pharmaceutical Litigation Reporter April 20, 2009
Merck & Co. has won dismissal of a New Jersey state court lawsuit that sought recovery of out-of-pocket expenses consumers paid for the recalled pain drug Vioxx. The proposed class-action lawsuit was filed by two former Vioxx users seeking to represent consumers who used the drug from June 1999 until its October 2004 recall because of its link to strokes and heart attacks.

MO. CLASS SUIT CLAIMS ILLEGAL PROMOTION OF ANTIDEPRESSANTS, Universal Care v. Forest Pharms., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 6, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A federal class action filed in St. Louis federal court seeks to have Forest Pharmaceuticals cough up profits it garnered through the allegedly illegal promotion of its antidepressants Celexa and Lexapro for use by teens and children. The suit is spearheaded by California-based health insurer Universal Care Inc., which says it covered the cost of the mood drugs provided to insured children, and by two plaintiffs who say they paid at least part of the costs.
Briefs and Other Related Documents: 2009 WL 964938

OHIO FED. COURT WON'T REVISIT SUIT OVER DIET-DRUG DEATH, Longs v. Wyeth, 25 No. 3 Andrews Pharmaceutical Litig. Rep. 7, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A federal judge in Cleveland has refused to vacate or revise an order granting summary judgment to Wyeth in a lawsuit alleging the diet drug Redux caused an Ohio woman's death. U.S. District Judge Solomon Oliver Jr. of the Northern District of Ohio dismissed the suit against the drugmaker in February 2008.

ATTORNEYS WIN $1.4 MILLION IN FEES IN VACCINE TEST CASES, Cedillo v. Sec'y of Health & Human Servs., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 8, Andrews Pharmaceutical Litigation Reporter April 20, 2009
Even though their clients lost, three law firms that filed claims alleging that mercury in vaccines causes autism will receive more than $1.4 million in interim fees for their efforts, the U.S. Court of Federal Claims has ruled. Special Master George Hastings Jr. said the three firms deserved the award because dozens of employees worked for several years on the highly complex cases, involving tens of thousands of pages of evidence and the testimony of 28 expert witnesses.

CVS TO PAY $2.25M TO SETTLE PRIVACY CASE, In re CVS Caremark Corp., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 9, Andrews Pharmaceutical Litigation Reporter April 20, 2009
CVS Caremark has agreed to pay $2.25 million to settle charges that it violated federal privacy regulations when pharmacy employees threw out prescription records and drug bottles into open trash bins. The settlement resolves a joint investigation by the U.S. Department of Health and Human Services and the Federal Trade Commission prompted by 2006 media reports that Dumpsters behind certain CVS pharmacies contained pill bottles with patients' names, Social Security numbers and insurance information.

DRUG ERROR KILLED WOMAN IN OHIO NURSING HOME, SUIT SAYS, Freudeman v. The Landing of Canton, 25 No. 3 Andrews Pharmaceutical Litig. Rep. 10, Andrews Pharmaceutical Litigation Reporter April 20, 2009
A non-diabetic resident of an Ohio assisted-living facility died from injuries she sustained when the staff negligently gave her a diabetes medication, according to a lawsuit recently removed to federal court. Dennis Freudeman's lawsuit against the owner and operator of The Landing of Canton assisted-living community alleges that medication caused a dangerous drop in his mother's blood sugar level.
Briefs and Other Related Documents: 2009 WL 286781, 2009 WL 286788, 2009 WL 286789

FEDERAL TIME-COMPUTATION RULES TO BE CHANGED IN 2009, John H. Tatlock, Esq., 25 No. 3 Andrews Pharmaceutical Litig. Rep. 11, Andrews Pharmaceutical Litigation Reporter April 20, 2009
In the first installment of a two-part commentary attorney John Tatlock urges lawyers in all practice areas to familiarize themselves with pending changes in how deadlines are calculated in federal, civil, criminal and bankruptcy court proceedings. Sometime before Dec. 1, 2009, all attorneys practicing in federal court will begin familiarizing themselves with more than 170 proposed amendments to the federal time-computation rules.

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