Chicago Accident Law Blog

The business of prescribing and shipping prescription medications over the internet has been used by physicians and pharmacists to ship medication out of state based solely on an online questionnaire. This can be and frequently is a violation of federal law, and if it is intentional it is a felony.

Many attorneys do not wish to get involved in cases where patients accidentally or intentionally overdose on these medications. There are several reasons for this reluctance. First, they frequently involve drug addicts whose personal physicians would never prescribe these medications. Second, the patient, physician, and pharmacist generally all live in different states and there are significant issues as to which states' laws apply. These case can be and I have been bringing them in the federal courts with success.

These physicians, pharmacists and pharmacies are commonly committing felonies, namely the crime of misbranding, in violation of 21 U.S.C. 353(b), 21 U.S.C. 331(a) and (k). Pursuant to 21 U.S.C. 333(a)2 it is a felony if it is done with intent to defraud or mislead. Most of the websites state that the physicians and pharmacies are licensed in your local area. Few are licensed where the prescriptions are shipped.

A good analysis of misbranding can be found in U.S. v. Smith, 573 F.3d 639, 651 (8th Cir. 2009), where the Court of Appeals held a prescriptions is misbranded if it is not accompanied by some sort of physical examination of the patient. None of these websites offer or even contemplate the patient seeing a physician. They merely require an online questionnaire to be filled out, and. most importantly a credit card that clears. Prescriptions are frequently shipped that day or the next by Fed Ex.

Patients and their families are reluctant to come forward because the victim is commonly an addict. The physicians and pharmacists know this and rely on this hesitancy-but victims and families should step up and sue these professionals for the drug dealers that they are. After all, criminal prosecutions are instituted everyday against drug dealers selling drugs to addicts, why should these unethical and criminal professionals not be brought to justice and to have to answer financially for their criminal conduct. If you or a family member have received prescription drugs over the internet, and an overdose has occurred, feel free to contact Edmund Scanlan toll free at 877-494-1309 to discuss what actions may be taken. If nothing else you may be assured that they will not be repeating this conduct.

Illinois product liability lawyers need to be aware of the August 2010 recall by DePuy Orthopedics of its defective metal-on-metal hip implant systems. The two hip implant systems recalled are the: (1) ASR XL Acetabular System, and (2) ASR Hip Replacement System, which first became available in 2003.

The most common problem with the ASR hip implant systems is that its components come loose. One of the design defects of these hip implant systems is that the cup-"acetabular prosthesis"-is too shallow causing it to: (1) dislocate, and (2) to shave cobalt and chromium off the metal-on-metal system and into the bloodstream when the joint's ball strikes against the cup's edge-"edge loading".

According to figures released by DePuy, 93,000 patients were implanted with these hip implants. There are current estimates that indicate that as high as 90% of patients with these hip implant systems will require revision surgery.

The most frequent symptoms experienced by patients are:
*dislocation of the hip
*metallosis and cobalt poisoning caused by chromium and cobalt being sheared off the system by"edge loading"
*fracture of the bone near the implant site
*sever pain
*inflammation and swelling
*significant difficulties walking
Metallosis can cause tissue breakdown and bone loss. Cobalt poisoning is even more insidious and can cause ringing in the ears-"tinnitus", vertigo, nerve atrophy, deafness, blindness, optic nerve atrophy, convulsions, headaches, and cardiomyopathy. Unfortunately these systems receive FDA approval through a process known as"510(K) approval process"-that did not require human tests.

DePuy Orthopedics, a division of Johnson & Johnson, is now contacting patients with these hip implant systems and offering "reasonable and customary costs of monitoring and treatment". These offers do not include:
*pain and suffering associated with the failure and the revision surgery
*medical complications that may be associated with the removal and installation of a new hip implant system
*lost wages
*any temporary or total disabilities cause by the failure
*DePuy also requires that patients submit their bills to their own insurance companies, Medicare, or other employee sponsored health plans before they consider paying medical expenses.

Patients with these DePuy ASR hip implant systems should be extremely cautious before entering into any agreement with DePuy or Johnson & Johnson. Anyone who has had these hip implant systems used in a hip replacement should contact an experienced product liability attorney to discuss your options. The best option may be to institute a product liability lawsuit to secure full compensation for all damages incurred, e.g. medical expenses, lost wages, pain and suffering, permanent disabilities, as well as damages for and complications incurred as a result of the revision surgery.

Should you so choose, feel free to call Edmund Scanlan toll free at 877-494-1309 for a free consultation to discuss your options. Our firm has extensive experience in product liability lawsuits and hip implant litigation in particular.

Physicians who prescribe drugs over the internet without seeing the patient and the pharmacies that fill and ship the drugs have sought to evade criminal and civil liability by prescribing non controlled substances. The DEA enforces the Federal Controlled Substances Act (21 U.S.C. 80 et seq.) which explicitly prohibits the sale of controlled substances prescribed by physicians who have never seen the patient.

Non controlled prescription drugs are governed by the Food, Drug and Cosmetics Act (21 U.S.C. 301 et seq.) which does not explicitly address online prescriptions and consultations. Criminal and civil prosecutions are now being pursued against these online pharmacies and physicians who sell, ship, and prescribe non controlled prescription drugs to patients based solely on an online questionnaire and "without some sort of examination." U.S. v. Smith, 573 F. 3d 639, 651 (8th Cir. 2009).

The legal theory behind these prosecutions is that online consultations with a physician is not the basis for a legitimate prescription, and therefore constitutes the crime of misbranding under the Food, Drug and Cosmetics Act (21 U.S.C. 353(b)(1), which is prohibited under 21 U.S.C. 331(a) and (k). The introduction or delivery into interstate commerce of a drug that is misbranded is punishable under 21 U.S.C. 333(a)(1), and as a felony under 21 U.S.C. 331(a)(2) if it is done with intent to defraud or mislead. The web pages of most online pharmacies that ship prescriptions without some sort of examination do both. Frequently neither the physician nor the pharmacy are licensed to prescibe or fill prescriptions in the state into which they are shipped.

In U.S. v. Smith, the Eighth Circuit stated: "A drug is misbranded unless dispensed upon a prescription of a practitioner licensed by law to administer such drug. 21 U.S.C. 353(b)(1)." Smith at 573 F. 3d 639, 650 (2009). The Smith court described a "prescription drug as misbranded if it dispensed other than through a valid prescription." 573 F. 3d at 651. The Court defined "valid prescription" as "...a bona fide order-i.e. directions for the preparation and administration of a...drug for a real patient who actually needs it after some sort of examination..." 573 F. 3d at 651.

Continue reading "Online Medical and Pharmacy Malpractice" »

Illinois product liability attorneys should be aware that Avandia, a diabetes drug, is now linked to a higher risk of heart attack and heart failure according to a report released by the Senate Finance Committee on Feb. 20, 2010. The report authored by the committee chaired by Senators Baucus and Grassley concluded:

"The totality of evidence suggests that GSK (GlaxoSmithKline) was aware of the possible cardiac risks associated with Avandia years before such evidence became public....Based on this knowledge, GSK had a duty to sufficiently warn patients and the FDA of its concerns in a timely manner. Instead, GSK executives intimidated independent physicians, focused on strategies to minimize findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that the rival drug ACTOS (pioglitazone) might reduce cardiovascular risk."

According to recently released reports by the FDA if every diabetic taking Avandia were instead given a similar drug named Actos, about 500 heart attacks and 300 heart failures would be averted every month because Avandia can hurt the heart. Dr. David Graham and Dr. Kate Gelperin of the FDA stated in a report: "Rosiglitazone (Avandia) should be removed from the market."

Senator Max Baucus chairman of the Finance Committee said: "Americans have a right to know there are serious health risks associated with Avandia and GlaxoSmithKline had a responsibility to tell them. Patients trust drug companies with their health and lives and GlaxoSmithKline abused that trust." The first study to disclose the Avandia heart risk was released by the New England Journal of Medicine on May 21, 2007. The Senate report states that the FDA estimated in July 2007, that Avandia has been linked to 83,000 heart attacks since it was put on the market.

Currently most litigation is in federal court since GlaxoSmithKline is a British corporation and the cases have been consolidated for purposes of discovery in the U. S. District Court for the Eastern District of Pennsylvnia. Victims are still entitled to file the litigation in the federal court where they took the medication, but discovery will take place under the auspices of the federal judge in the federal court for the Eastern District of Pennsylvania. Now that evidence exists that GSK failed to warn of known risks of Avandis for years the prospect for success in Avandia litigation has increeased substantially. If you, a family member, or friend has had a heart attack while taking Avandia you should promptly consult with an attorney well versed in handling product liability litigation. Should you so choose feel free to contact Edmund Scanlan at 877-494-1309.

Illinois medical malpractice lawyers who represent victims and their clients were pleased with the ruling last week by Cook County Circuit Court Judge Joan Diane Larsen that caps on non-economic damages in medical malpractice cases violates the Illinois Constitution. Under the law (Public Act 94-667), plaintiffs could be awarded no more than $500,000 in non-economic damages against doctors and $1 million against hospitals. Non-economic damages are generally damages for pain and suffering, disability, and disfigurement.

The Illinois Supreme Court has twice ruled as unconstitutional caps on non-economic damages in medical malpractice cases in Wright v. Central Du Page Hospital, 63 Ill. 2d 313, 347 N.E. 2d 736 (1976), and in wrongful death and injury cases in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E. 2d 1057 (1997). In Best, the high court observed: Under our constitution, the three branches of government-legislative, executive, and judicial-are separate and one branch shall not “exercise powers properly belonging to another.” Ill. Const. 1970, art. II, sec. 1. 179 Ill. 2d at 410, 689 N.E. 2d at 1078. The Illinois Supreme Court traced judicial authority by noting: For over a century it has been a traditional and inherent power of the judicial branch of government to apply the doctrine of remittitur, in appropriate and limited circumstances, to correct excessive jury verdicts. Best, 179 Ill. 2d at 411, 689 N.E. 2d at 1079.

In concluding that 735 ILCS 5/2-1115.1 (the cap) violates the separation of powers clause of the Illinois Constitution (1970). Art. II, sec.1, the Best court held: …because the legislature cannot make such case-by-case determinations, separations of powers concerns would be violated by the “legislative attempt to mandate legal conclusions.”….we conclude that section 2-1115.1 invades the power of the judiciary to limit excessive awards of damages. The courts are constitutionally empowered, and indeed obligated, to reduce excessive verdicts where appropriate in light of the evidence adduced in a particular case. Section 2-1115.1, however reduces damages by operation of law, without regard to the specific circumstances of individual jury awards. 179 Ill. 2d at 660, 689 N.E. 2d at 1081.

Continue reading "Illinois Medical Malpractice Caps Found Unconstitutional" »

Illinois Wrongful Death Act now allows jurors to award damages for "grief, sorrow, and mental suffering." The law in Illinois since 1867 has been that in wrongful death actions, there is "no recovery for bereavement" and "nothing can be given as solatium." Chicago & A.R. Co. v. Shannon, 43 Ill. 338, 1867 WL 5039 (1867).

Jury instructions in wrongful death actions arising before the effective date of this amendment, May 31, 2007, have and will include Illinois Pattern Jury Instruction (Civil) IPI 31.07. This instructions states: In determining "pecuniary loss" you may not consider the following:
(1) The pain and suffering of the decedent;
(2) The grief or sorrow of the widow and next of kin, or
(3) The poverty or wealth of the widow and next of kin.

Needless to say this was and is a powerful argument that defendants, their insurers and attorneys make to jurors at the trial of a wrongful death action to limit the amount of damages awarded. Sometimes the only significant loss widows and next of kin sustain is the "grief, sorrow, and mental suffering" associated with the wrongfyl death of a family member.

Continue reading "Illinois Wrongful Death Act Amended" »

Illinois hospitals were granted immunity from disclosing confidential patient records by the Illinois Supreme Court. Bagent.v. Blessing Care, d/b/a Illini Hospital, 224 Ill. 2d 154, 862 N.E. 2d 985 (Jan. 19, 2007). An Illinois woman's common law right of privacy claim against a hospital that her confidential medical records were divulged by an employee of the hospital was unanimously rejected by the high court last week. Defendant Mary Young was a phlebotomist employed by Illini Hospital. She had received confidentiality training from her employer regarding HIPAA, 110 Stat. 1936. Plaintiff Suzanne Bagent had a blood test with results being sent to Illini Hospital showing that she was pregnant.

Shortly thereafter defendant Mary Young visited a local tavern and shared the blood test results with plaintiff's sister. Plaintiff complained to the hospital and thereafter filed a lawsuit against the phlebotomist and Illini Hospital under a doctrine of respondeat superior. The trial court dismissed Illini Hospital finding that disclosure of plaintiff's medical records was "not made in the course of or within the scope of Young's employment."
Plaintiff appealed the dismissal to the Appellate Court which reversed holding that a jury should decide whether Young was acting within the scope of employment. Young v. Blessing Care, d/b/a Illini Hospital, 363 Ill. App. 3d 916, 844 N.E. 2d 469 (2006). The Illinois Supreme Court reversed the Appellate Court in Docket No. 102430.

The Illinois Supreme Court discussed the Restatement (Second) of Agency Sec. 228 which provides that: (1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master..
The Supreme Court held that all three criteria must be met to conclude that an employee was acting within the scope of employment. Plaintiff relied upon Section 229 of the Second Restatement which elaborates the first criteria of Section 228, including the admonition to consider such factors as whether the act is outside the enterprise of the employer and whether the employer has reason to expect that such an act will be done. Clearly disclosure of confidential medical information was not outside the enterprise of a hospital and the hospital had reason to be concerned that such an act would occur, why else provide training. The Court ignored these factors in its analysis.

In its unanimous opinion the Illinois Sup. Ct. strangely stated:
".the ultimate question is whether or not the loss resulting from the employer's acts should
justly be considered as one of the normal risks to be borne by the employer."
I agree with this statement of the Court but disagree with the analysis they use to immunize a hospital from liability for the release of confidential medical information of its patient by an employee of the hospital.
"

Continue reading "Illinois Hospital Immunity-Confidential Patient Records." »

An Illinois internet prescription malpractice case that I tried last year now has resulted in the indictment of the very doctors sued. The doctors were charged in the civil suit with: (1) prescribing Xanax and Ultram to a patient they had never seen or examined; (2) prescribing excessive dosages and; (3) practicing medicine in the state of Illinois without a license.

As reported in last months' post on internet prescription malpractice, the plaintiff, a 30 year old husband and father ordered Xanax and Ultram over the internet. The plaintiff had previously successfully completed a drug rehabilitation program through Hazelton, and had been clean and sober for a long time. However, looking at his e-mails one day in May 2004 he succumbed and ordered the anti-anxiety drug Xanax and the pain killer Ultram via an internet questionnaire. As he testified before a jury in U.S. District Court in Chicago, he took these drugs partially for back pain and partially for recreation.

After consuming these drugs the next thing he recalls is waking up in a hospital in suburban Chicago three weeks later. The drugs repressed his breathing causing a hypoxic event that landed him in a coma. Neither Dr. Klinman. a Pennsylvania internist, whose name was on the bottle of Xanax nor Dr. Ahlawat, a New Jersey internist, whose name was on the bottle of Ultram, had ever seen plaintiff or spoken with him. All the information they had was contained on the online questionnaire that he filled out.

Continue reading "Internet Prescription Malpractice-Part II" »

An Illinois internet prescription malpractice case that I prosecuted beginning in 2004 opened my eyes to the widespread abuse of prescription drugs the internet facilitates. An unholy alliance has developed between physicians and the internet pharmacies that push drugs via spam e-mails and pay for click advertising. This is the first of what will become a continuing focus on the practice of physicians prescribing frequently abused drugs based solely on an on line questionnaire. This article is not meant to criticize or impede a patient with a lawful prescription from having it filled over the internet.

In April 2004, a 30 yr. old plastic salesman along with his newly pregnant wife had just moved into their new home in suburban Chicago. He was an active man who played golf and basketball regularly. He loved reading Dostoevsky and Hemmingway. His sales job required 70-hour work weeks and he drove over 60,000 miles per year servicing his customers. Stress was very high and his back was bothering him, but his family life and work prospects were promising.

Continue reading "Internet Prescription Malpractice-Part 1" »

An Illinois wrongful death verdict arising out of a construction accident where a scaffold collapsed was reversed by the appellate court in Chicago. The Court did rule that the defendants had waived any right to challenge the award of $14,230,000. The issue as framed by the Appellate Court:

Is a defendant who settles with the plaintiff prior to trial still a "defendant sued by the plaintiff" within the meaning of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117)? If we answer this question in the affirmative, then all defendants sued by the plaintiff, including those who settled prior to trial, may be included on the jury verdict form so that the fact finder can assign each defendant their degree of fault, if any. If we answer this question in the negative, then only those defendants who remain when the case is submitted to the fact finder may be included on the verdict form.

Continue reading "Chicago Appellate Court Puts Settling Defendants on Verdict Form" »

One Chicago medical malpractice case that did not involve either doctors or nurses was resolved too late to benefit the victim. In 1999 a Chicago area woman went to her gynecologist for her annual pap smear. Because she had been previously diagnosed with a sexually transmitted disease she was at a higher risk of developing cervical cancer, and therefore her doctor recommended annual pap smears. The pap smear was sent to a large national lab to be read. The results were communicated to the gynecologist as a normal pap smear. Approximately ten months later the patient contacted her gynecologist because she was having unusual discharges and she came in for an appointment. Upon physical examination the physician made a visual diagnosis of cervical cancer which was later confirmed by a biopsy.

Continue reading "Chicago Pap Smear Medical Malpractice" »

An Illinois internet prescription malpractice suit named two physicians, one from New Jersey and one from Pennsylvania for prescribing Xanax and Ultram to an Illinois resident based solely on an online questionnaire. In May 2004 a 31 year old Illinois man received 60 2mg tablets of Xanax and 90 50mg tablets of Ultram based upon the internet application. The prescriptions were filled by internet pharmacies located in Florida. The plaintiff testified that he recalls taking one tablet of the Xanax and one tablet of the Ultram, and the next thing that he recalls is waking up in a hospital three weeks later.

Continue reading "Chicago Internet Prescription Malpractice" »

An Illinois medical malpractice case I recently handled where an anesthetic was injected into the victim's spinal cord ended successfully for a Chicago area woman. A 44 year old Chicago area woman became a victim of medical malpractice when she went into a surgical center for repair of a torn rotator cuff. Prior to the surgery the anesthesiologist injected the patient with an anesthetic to reduce post operative pain. The anesthetic was injected into the patient's spinal cord, instead of proximate to the brachial plexus nerve. As a result of the anesthetic entering the patient's spinal cord, the patient suffered partial paralysis of her arms and legs as well as numbness over large areas of her trunk.

Continue reading "Illinois Medical Malpractice-Spinal Cord Injection" »