Friday, September 21, 2012

Presuit, arbitration agreements, graphic warnings, and grilled cod with truffle oil, lemon zest, and Kalamata olives over wild mixed greens and baby cucumbers

Medical malpractice -- Birth-Related Neurological Injury Compensation Act -- Although trial court erred by concluding that injuries allegedly sustained by mother during childbirth were compensable under Florida Birth-Related Neurological Injury Compensation Plan, dismissal of action was proper because plaintiffs' counsel failed to comply with statutory presuit requirements

Pre-suit Requirements: MAINE HIGH COURT VACATES $420K VERDICT FOR UNFULFILLED PRE-SUIT REQUIREMENTS, Levesque v. Cent. Me. Med. Ctr., 15 No. 5 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home September 7, 2012
The Maine Supreme Judicial Court has vacated a $420,000 jury award in a bedsore case because the plaintiff presented trial evidence on a theory of liability that he did not present to a pre-litigation screening panel. State law required Paul V. Levesque to notify hospital defendant that he planned to argue it was responsible for a nonemployee physician's alleged negligence and to present the claim to a pre-suit screening panel, the high court said.
Arbitration Agreement: FLORIDA ASSISTED LIVING FACILITY WINS APPELLATE COURT BID FOR ARBITRATION, Emeritus Corp. v. Pasquariello, 15 No. 5 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home September 7, 2012
The operator of an assisted living facility in Florida has won reversal of a court order that said a deceased resident's power of attorney did not authorize his wife to enter into an arbitration agreement on his behalf. The power-of-attorney form explicitly gave Kathleen M. Pasquariello absolute power over claims and litigation for her husband, including the authority to submit to arbitration, the 2nd District Court of Appeal said.

Arbitration Agreement: KENTUCKY HIGH COURT INVALIDATES RESIDENT'S ARBITRATION AGREEMENT, Ping v. Beverly Enters., 15 No. 5 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home September 7, 2012
The Kentucky Supreme Court has ruled that an arbitration agreement signed by a nursing home resident's daughter is unenforceable, reinstating a negligence and wrongful-death action brought by the mother's estate. Donna Ping had Alma C. Duncan's power of attorney, but her authority to make health care and financial decisions for her mother did not extend to an optional arbitration agreement that waived Duncan's right of access to the courts, the justices unanimously held.

Engle Progeny (Statute of Limitations): SMOKER'S HEALTH PROBLEMS MANIFESTED AFTER ENGLE CUTOFF DATE; LAWSUIT TOSSED, Castleman v. R.J. Reynolds Tobacco Co., 27 No. 26 Westlaw Journal Tobacco Industry 5, Westlaw Journal Tobacco Industry September 7, 2012
A Florida appeals court has rejected a lawsuit filed against cigarette maker R.J. Reynolds Tobacco Co., finding that a smoker's heart and lung conditions manifested themselves after a 1996 cutoff date specified in the landmark Engle class action. The 1st District Court of Appeal said the smoker did not link his medical problems to his smoking history until 1998 -- two years after the deadline for membership in the class action expired.

Cypher Stent: N.J. SUPREME COURT FINDS STENT DEATH SUIT UNTIMELY, FEDERALLY PREEMPTED, Cornett v. Johnson & Johnson, 19 No. 15 Westlaw Journal Medical Devices 9, Westlaw Journal Medical Devices September 10, 2012
New Jersey's highest court has affirmed the dismissal of a consumer fraud and design defect suit against Cordis Corp. by a Kentucky woman who says her husband died from a blood clot that formed near a Cypher drug-eluting stent several months after its implantation. All of Vonnie Cornett's claims against Cordis and parent Johnson and Johnson are untimely under Kentucky law and, secondarily, even if they were timely, most are preempted by Riegel v. Medtronic Inc., 552 U.S. 312 (2008)

Graphic Warnings: D.C. FEDERAL APPEALS COURT SNUFFS OUT FDA'S GRAPHIC WARNINGS, R.J. Reynolds Tobacco Co. v. FDA, 27 No. 26 Westlaw Journal Tobacco Industry 1, Westlaw Journal Tobacco Industry September 7, 2012
A District of Columbia federal appeals panel has ruled that the government went too far when it mandated large graphic warnings on packs of cigarettes. In a split ruling, the District of Columbia U.S. Circuit Court of Appeals determined that the warnings violate the tobacco companies' First Amendment rights. The court also found that the government fell short in proving that the warnings would lead to reduced smoking rates.Judge Judith W. Rogers dissented

Light Cigarettes (Class Certification): LIGHT-CIGARETTE CLASS DECERTIFIED BY N.H. HIGH COURT, Lawrence v. Philip Morris USA, 27 No. 26 Westlaw Journal Tobacco Industry 2, Westlaw Journal Tobacco Industry September 7, 2012
Finding that individual issues predominate, New Hampshire's highest court has decertified a class-action lawsuit alleging Marlboro Lights cigarettes are overvalued because they do not offer any added health benefits than traditional cigarettes. The state Supreme Court panel unanimously held that "the information about lights to which individual class members were exposed, and what they believed, are individual issues that will predominate over common ones.

Legislation: BILL ON MEDICAL COST RECOVERY DIES IN CALIFORNIA ASSEMBLY, 8 No. 8 Westlaw Journal Medical Malpractice 5, Westlaw Journal Medical Malpractice September 14, 2012
The California General Assembly has struck down a bill that would have allowed tort plaintiffs whose medical care was covered by a capitated, or fixed, payment health plan to recover damages for the "reasonable and necessary value" of their medical costs. The latest version of Senate Bill 1528 also would have allowed the state's counties to recoup the cost of a plaintiff's care from a judgment, settlement or arbitration award. The Senate voted 43-13 to reject the measure Aug. 31

Medical Malpractice (Joint Liability): CALIFORNIA HIGH COURT ABANDONS SETTLEMENT RELEASE RULE, Leung v. Verdugo Hills Hosp., 15 No. 5 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home September 7, 2012
The California Supreme Court has abandoned a long-standing rule that one defendant's settlement releases other joint tortfeasors from liability, in a case involving a $96 million award for an infant's severe brain damage. The high court unanimously held that the best way to apportion liability in a negligence action involving a settlement not made in good faith is to credit the settlement amount against the total damages and find the non-settling defendants liable for the remainder.

Medicare Fraud: HOME HEALTH CARE AGENCY OPERATOR PLEADS GUILTY IN $42 MILLION SCHEME, United States v. Escalona, 15 No. 5 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home September 7, 2012
The owner of a home health care agency in Miami has pleaded guilty to federal charges for his role in a conspiracy to submit $42 million in false claims to Medicare. In a plea agreement filed in the U.S. District Court for the Southern District of Florida, Eulises Escalona acknowledged that he faces up to 10 years in prison and fine of $250,000.In return for the guilty plea on one charge of conspiracy, the government agreed to seek dismissal of the remaining six health care fraud charges

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