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Medical Malpractice Law & Strategy
Exclusion of Evidence: The FDA’s 510(k) Process
Janice G. Inman
In a drug or medical device injury case, one of the defense’s most potent arguments is often that the product in question underwent FDA approval, so the balance of its safety and efficacy has already been determined. But when a device is approved for sale to the public through the FDA’s 510(k) process, the rigorous safety and efficacy analysis required of new and unique medical devices has not been undertaken.
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Product Liability Law & Strategy
Maximizing Future Medical Damages in Paralysis Cases
Mitch Warnock
When you take a catastrophic injury case involving paralysis, it is important to have a thorough understanding of the problems and pitfalls. In this article, the author explores, from personal experience, the different types of future expenses the client can expect to incur.
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Medical Malpractice Law & Strategy
Physician Extenders or Liability Expanders?
Kevin Quinley
For health care services to serve an influx of patients, so-called “physician extenders” now carry out functions previously performed by doctors. The aim of this article is to examine factors driving the growth in physician extenders, identify liability “hotspots” and offer tactics for health care providers to use in managing professional/medical liability risks.
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Medical Malpractice Law & Strategy
Paralysis Cases: Helping Your Client Cover Future Costs
Mitch Warnock
Part Two of a Two-Part Article
Your paralyzed client currently has many problems to deal with, but the future holds many more. In order to advocate for your client, you need to gain an understanding of his or her current and future challenges, and work to maximize the resources your client will need to deal with them.
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Medical Malpractice Law & Strategy
When Lack of Informed Consent Is Not the Issue
Janice G. Inman
When an injury occurs, the first reaction of those in the medical office might be to ask, "Did the patient sign an informed consent form?" When the answer is "Yes," and the harm that occurred is listed as a possibility on that signed form, everyone can breathe a sigh of relief. Right? Not so fast.
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Medical Malpractice Law & Strategy
Maximizing Future Medical Damages in Paralysis Cases
Mitch Warnock
Part One of a Two-Part Article
When you take a catastrophic injury case involving paralysis, it is important to have a thorough understanding of the problems and pitfalls. In this two-part article, I will explore, from personal experience, the different types of future expenses the client can expect to incur.
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Medical Malpractice Law & Strategy
The Rise of the Travel Act
Jonathan S. Feld, Monica B. Wilkinson, Lea F. Courington and Alison L. Carruthers
The DOJ continues to prioritize health care anti-fraud enforcement through the aggressive use of different statutes and investigative methods. Although the prosecutions and recoveries vary, between October 2016 and March 2017, "Strike Force" team efforts led to charges against 49 individuals or entities, 152 criminal actions, and more than $266.8 million in investigative receivables.
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Medical Malpractice Law & Strategy
Drug & Device News
The U.S. Court of Appeals for the Second Circuit has upheld the summary judgment dismissal of the multidistrict lawsuit (MDL) against the maker of the intrauterine birth control device Mirena after finding that none of the experts proffered by the nearly 1,300 plaintiffs were reliable.
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Medical Malpractice Law & Strategy
Increased Scrutiny for Cy Pres Provisions in Class Action Settlements
Joshua L. Becker and Brad M. Strickland
Lawsuits against pharmaceutical and medical device manufacturers often come in the form of class actions, and sometimes the settlement or award amount exceeds the identified class members' claim amounts. In such cases, the excess funds may be distributed to a cy pres recipient, but courts are starting to question such moves more thoroughly.
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Medical Malpractice Law & Strategy
Defamation and the Disgruntled Defendant
Janice G. Inman
Anti-SLAPP Legislation and Defamation Claims
Part Two of a Two-Part Article
After defendants have established that their allegedly defamatory statements were made in furtherance of their right of free speech or petition under the United States Constitution or the California Constitution in connection with a public issue, the second thing that courts must question when a defendant seeks dismissal through an anti-SLAPP motion is whether the claimant has carried his burden of establishing a probability of success on the merits of his claim.
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Medical Malpractice Law & Strategy
Case Notes
The U.S. Supreme Court is deciding whether to consider the case of Southern Baptist Hospital of Florida v. Charles, which pits a plaintiff against a hospital in the ongoing battle over which documents are privileged as adverse event records for the improvement of quality of care, and which must be turned over to aggrieved patients and their families.
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Medical Malpractice Law & Strategy
Drug & Device News
Because the drug-manufacturing defendants seeking federal retention of a case removed from state court were unable to prove the four elements of the U.S. Supreme Court's Gunn test for federal-question jurisdiction, the U.S. Disctrict Court for the Northern District of California remanded the case to state court.
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Medical Malpractice Law & Strategy
Med Mal News
On Sept. 20, Florida's Agency for Health Care issued a emergency order suspending the license of the Rehabilitation Center of Hollywood Hills, the Tallahassee nursing home where 11 people died in the days after Hurricane Irma struck Florida.
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Medical Malpractice Law & Strategy
Verdicts
In an unpublished opinion, a two-judge panel of New Jersey's Appellate Division recently reinstated a medical malpractice case that had been dismissed for want of an expert.
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Medical Malpractice Law & Strategy
Challenges to the Admissibility of Evidence in the 'Omics' Era
Ronald J. Levine and K. Heather Robinson
Due to our increased understanding of human genetics, there has been a shift in, and expansion of, the use of genetics in the courtroom to address the "how" and "why" — the causation of, or susceptibility to — disease in mass tort and products liability litigations. Here are some trial tips you need to know.
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Medical Malpractice Law & Strategy
Assigning Claim Value
J. Randolph Evans and Shari L. Klevens
Lawyers Must Weigh Potential Liability
This article outlines some of the issues relevant to a determination of whether an attorney's inaccurate valuation could create potential malpractice liability.
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Medical Malpractice Law & Strategy
Defamation and the Disgruntled Defendant
Janice G. Inman
Part One of a Two-Part Article
Analysis of a recent case in which a company, publicly accused by a plaintiff's lawyers of using non-FDA-approved medical devices, fought back by bringing a defamation suit against the opposing attorneys. The decision in the appeal offers some insights into what kinds of allegations may be publicized, and in what circumstances, when a product liability charge is brought.
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Medical Malpractice Law & Strategy
Verdicts
In-depth analysis of two key rulings.
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Medical Malpractice Law & Strategy
Drug & Device News
Discussion of cases involving opioid addiction and medical marijuana in the workplace.
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Medical Malpractice Law & Strategy
A Broadening Consensus to Narrow Asset Forfeiture
Edmund W. Searby
When Attorney General Jeff Sessions announced in July that the federal government planned to again emphasize the pursuit of civil asset forfeitures, an issue moved to the front burner for health care providers and their advisers: If the federal (or state) government decides to pursue a case against a care provider or medical practice, it can seize the alleged culprit's property, even before conviction.
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Medical Malpractice Law & Strategy
Verdicts
Discussion and analysis of two major rulings.
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Medical Malpractice Law & Strategy
Preparing a Medical Witness for Deposition and Trial: A Different Approach
Gary Riveles and Mark G. Phillips
While the deposition testimony usually does not win the case, in a medical negligence matter, it can definitely lose it. The stakes for a physician today are higher than they have ever been. It is not an infrequent occurrence that any report to the Databank gets a review by both the State Board of Medical Examiners and any health insurer on whose panel the provider has privileges. Our clients deserve better.
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Medical Malpractice Law & Strategy
Managing Cyber Risks in Medical Practices
Kevin Quinley
Part Two of a Two-Part Article
Astonishing computing power lets health care providers harness vast computing resources to drive their business plans, manage treatment protocols and crunch data to boost their practices. However, unintended consequences arise and, in the case of computers, one such consequence is cyber peril.
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Medical Malpractice Law & Strategy
Drug & Device News
In-depth analysis of three key rulings.
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Medical Malpractice Law & Strategy
Verdicts
The Ninth Circuit has reinstated a medical malpractice claim involving a federal government-employed doctor because although the plaintiff did not exhaust the federal claims process before originally filing suit in state court, he dismissed his original claim, sought and was denied relief through the federal claims process, then attached the claim to the ongoing state court case.
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Product Liability Law & Strategy
Case Notes
Analysis of a case in which a prescribed drug allegedly contributed to a young man's death.
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Medical Malpractice Law & Strategy
Genomic Testing: The Perils and the Pitfalls
Linda S. Crawford
There are pitfalls for providers and companies that offer genomic testing. They might include not offering genetic testing if it is indicated, not offering the proper testing, or reporting inaccurate or misleading results. Each of these has the potential to generate a lawsuit, and indeed each of them already has.
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Medical Malpractice Law & Strategy
Managing Cyber Risks in Medical Practices
Kevin Quinley
Part One of a Two-Part Article
We often associate cyber-risks with financial institutions, but while the financial sector certainly does deal with cyber-risks, it is by no means the only industry facing such woes. Health care providers are also vulnerable to cyber-liability risks.
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Medical Malpractice Law & Strategy
Product Liability, Bankruptcy and the Proceeds of Legal Action
Janice G. Inman
A recent case dealt with an unusual question presented to a bankruptcy court by a debtor's medical device product liability claim: If, at the time of bankruptcy filing, the debtor has a potential civil claim that lacks some of the elements necessary for recovery (which elements may never develop), yet later receives settlement, are the proceeds of that settlement part of the bankruptcy estate?
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Medical Malpractice Law & Strategy
Verdicts
A court recently declined to order a new trial in a medical malpractice case in which defense counsel made an erroneous statement concerning the burden of proof, after finding that the plaintiff failed to show prejudice.
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Medical Malpractice Law & Strategy
Drug & Device News
News about a new drug for ALS, and pelvic mesh litigation.
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Medical Malpractice Law & Strategy
Patient Safety Work Product and Its Limitations: A Discussion of Two Recent Cases
Michael Petruccelli and Steven Osher
In the context of medical malpractice litigation, it is important for lawyers representing the injured patient and health care providers to understand the overall purpose of the Healthcare Quality and Improvement Act, as well as its limitations as far as patient safety work product is concerned.
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Medical Malpractice Law & Strategy
Verdicts
New York's Appellate Division, Second Department, has barred a medical malpractice defendant from submitting into evidence Facebook posts of the plaintiff, allegedly describing his physical activities, for lack of proper authentication.
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Medical Malpractice Law & Strategy
Med Mal News
Several government entities were involved in the investigations that led to the recent arrest of a Detroit emergency room physician on allegations of performing female genital mutilation (FGM) on young girls.
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Medical Malpractice Law & Strategy
Drug & Device News
A settlement was reached Feb. 10 between McNeil Consumer Healthcare (a subsidiary of Johnson & Johnson) and more than 200 plaintiffs who claim liver damage from taking Tylenol.
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Medical Malpractice Law & Strategy
Institutional Deliberate Indifference
Janice G. Inman
Proving Constitutional Violation
Part Two of a Two-Part Article
Conclusion of a discussion about Glisson v. Indiana Dept. of Correction, in which Alma Glisson, whose son Nicholas died while in prison, sued the correctional facility for employing the services of medical contractor Correctional Medical Services, Inc. (Corizon).
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Medical Malpractice Law & Strategy
Daubert Motions Really Do Work
John L. Tate
Part Two of a Three-Part Article
The starting point for any successful challenge under Federal Rules of Evidence (FRE) 702 and Daubert is the form and content of the witness's disclosure under Federal Rules of Civil Procedure (FRCP) 26(a)(2). Here is all you have to know.
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Medical Malpractice Law & Strategy
Looking to Expand Into Mass Torts?
Matthew Doebler
Mass torts are a strong way for trial lawyers to check Big Pharma's unfettered safety violations. However, it is not a practice area without dangers; and like so many other dangers, they are often hidden.
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Medical Malpractice Law & Strategy
Drug & Device News
Discussion of a case in which 64 people died and nearly 700 more were sickened in 2012 after receiving injections of steroids prepared at the New England Compounding Center in Framingham, MA.
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Medical Malpractice Law & Strategy
Med Mal News
A look at the Fairness in Class Action Litigation Act of 2017.
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Medical Malpractice Law & Strategy
Verdicts
In-depth analysis of two recent rulings.
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Medical Malpractice Law & Strategy
Institutional Deliberate Indifference
Janice G. Inman
When a Prisoner’s Health Care Is Botched, the Providers’ Employer May Be on the Hook
Prisoner Eighth Amendment allegations of cruel and unusual punishment due to deliberate indifference to their medical needs are common; most of them go nowhere. Once in a while, though, the care provided to a prisoner is so substandard that the case actually hurdles the defendants' motion for summary judgment and makes it to trial.
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Medical Malpractice Law & Strategy
Do Daubert Motions Really Work?
John L. Tate
Part One of a Three-Part Article
Among the concerns commonly expressed by the trial bar is the perception that so-called Daubert motions are a long shot at best, often not worth the time and effort. Two recent studies shed new light on these attitudes.
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Medical Malpractice Law & Strategy
Class Certification
Jeremy M. Creelan
Will Gorsuch Pick Up Where Scalia Left Off?
"Is my client a potential member in a class-action lawsuit against a pharmaceuticals manufacturer?" The answers can get complicated, especially when the legal landscape is in flux, as it is now as we await the appointment of a new Supreme Court justice. What should we expect?
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Medical Malpractice Law & Strategy
Drug & Device News
Off-Label Suit
In the case of Caltagirone v. Cephalon, Philadelphia Court of Common Pleas Judge Denis P. Cohen has granted the plaintiff the right to…
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Medical Malpractice Law & Strategy
Med Mal News
Health Care Lawyers Most Worried About Electronic Information
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Medical Malpractice Law & Strategy
Alabama High Court Wrongful Death Decision Sets Stage for Increased Provider Risk
Janice G. Inman
A look at a recent case decided in the Supreme Court of Alabama that concerns questions of the personhood of a nonviable fetus for purposes of a wrongful death action.
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Medical Malpractice Law & Strategy
Drug & Device News
Teva has agreed to pay $520M to settle an FCPA complaint. Here’s why.
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Medical Malpractice Law & Strategy
Med Mal News
A look at a potentially chilling attorney sanction in Pennsylvania.
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Medical Malpractice Law & Strategy
Verdicts
In-depth analysis of a case in which a jury did not receive all evidence.
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