Despite Counsel, Amputee Hindered by Tort Laws

SAN ANTONIO — When Connie Spears arrived at a Christus Santa Rosa hospital emergency room in 2010 with severe leg pain, she told medical staff about her history of blood clots. Doctors sent her home with a far less serious diagnosis.

Days later, swollen and delusional, Spears was taken by ambulance to another hospital where doctors found a severe clot and extensive tissue damage. With her life on the line, they amputated both of her legs above the knee.

Nearly three years later, Spears says she is a victim not only of a medical mistake but also of Texas’ tort reform laws.

The massive tort reform package that Texas lawmakers approved in 2003 capped noneconomic damages a plaintiff can receive for medical malpractice at $250,000 and set a “willful and wanton” negligence standard — interpreted as intentionally harming the patient — for emergency care. It also required plaintiffs to find a practicing or teaching physician in the same specialty as the defendant to serve as an expert witness, and to demonstrate evidence of negligence ahead of a trial. Under the strengthened rules, if plaintiffs fail to produce adequate expert reports within 120 days of filing their cases, they are liable for defendants’ legal fees.

Spears said the laws obstructed her ability to find a malpractice lawyer and forced a judge to order her to pay thousands of dollars to cover some defendants’ legal bills. Her lawyers plan to challenge the constitutionality of the laws.

“How can that law be?” Spears asked. “Maybe the law was too loose before, but they went way too far the other way.”

Tort reform proponents say that such restrictions are the only way to curb frivolous lawsuits against health care providers, and that they have drawn more medical professionals to a state with exploding population growth.

“Our purpose had never been to have a procedural hurdle,” said Mike Hull, a lawyer for the pro-tort-reform Texas Alliance for Patient Access. “It had been to have the plaintiffs really get the case reviewed.”

For two years, Spears struggled to get legal representation, because several lawyers said they feared her case did not meet Texas’ new negligence standards. Justin Williams, a Corpus Christi lawyer who eventually took the case, said he believed it was so strong it might challenge the state’s tort reform laws. “Her life has basically been ruined by all of this, and there was just no way I could turn her down,” he said.

But the case fell apart under the new expert witness rules. After the first attempt at an expert witness report failed to identify the proper defendants, Williams said, he was unable to find another expert witness in a time frame that would satisfy Texas’ requirements.

Tina York, an attorney for Christus Santa Rosa, said it is unusual for a case to get dismissed because of problems with an expert witness report. The rules are in the statute, she said, to weed out plaintiffs who “can’t legally support their claim” from the beginning.

York said Christus Santa Rosa did not pursue compensation for its legal fees out of sympathy for Spears. But Spears said other defendants in the case had. With her retirement savings tapped and her husband out of work, she is afraid they will lose their home.

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Source: The Texas Tribune (Aaronson, 1/25)

Maker Aware of 40% Failure in Hip Implant

An internal analysis conducted by Johnson & Johnson in 2011 not long after it recalled a troubled hip implant estimated that the all-metal device would fail within five years in nearly 40 percent of patients who received it, newly disclosed court records show.

Johnson & Johnson never released those projections for the device, the Articular Surface Replacement, or A.S.R., which the company recalled in mid-2010. But at the same time that the medical products giant was performing that analysis, it was publicly playing down similar findings from a British implant registry about the device’s early failure rate.

The company’s analysis also suggests that the implant is likely to fail prematurely over the next few years in thousands more patients in addition to those who have already had painful and costly procedures to replace it.

The internal Johnson & Johnson analysis is among hundreds of internal company documents expected to become public as the first of over 10,000 lawsuits by patients who got an A.S.R. prepares to go to trial this week. The episode represents one of the biggest medical device failures in recent decades and the forthcoming trial is expected to shed light on what officials of Johnson & Johnson’s DePuy Orthopaedics division knew about the device’s problem before its recall and the actions they took or did not take.

The trial, which is expected to begin Friday in California Superior Court in Los Angeles, may also provide a guide to the consequences of the A.S.R. episode to Johnson & Johnson, both for the company’s finances and its reputation. Last year, the company took a $3 billion special charge, much of it related to medical and legal costs associated with the device. DePuy has offered to pay patient costs for replacement procedures.

The A.S.R. belonged to a once-popular class of hip implants in which a device’s cup and ball component were both made of metal. While the A.S.R. was the most failure-prone of those implants, surgeons have largely abandoned using such devices in standard hip replacement because their components can grind together, releasing metallic debris that damages a patient’s tissue and bone.

On Friday, Judge J. Stephen Czuleger, who is presiding over the Los Angeles case, unsealed a number of motions that contained portions of pretrial depositions of DePuy officials as well as related company records. Those disclosures, like the company’s estimate of the A.S.R.’s failure rate, represent only a tiny fraction of the information that will become public if the trial proceeds. Over the last two years, plaintiffs’ lawyers working on A.S.R.-related lawsuits have reviewed tens of thousands of internal DePuy documents and taken depositions from dozens of company executives.

Executives of DePuy have long insisted that their handling of the A.S.R. was forthright and appropriate. In mid-2010, when DePuy recalled the implant, officials said they were doing so because data that year from the National Joint Registry of England and Wales showed for the first time that it was failing prematurely at a higher rate than competing implants. In 2011, the British implant registry updated its projected failure rates for A.S.R. patients who had had it the longest, saying it was failing in one-third of them. It was that estimate that was challenged by DePuy.

About 7,000 of the A.S.R. lawsuits have been consolidated in a federal court in Ohio. An additional 2,000 cases have been consolidated in a California state court. The California case chosen to go to trial this week was selected because the plaintiff, a man named Loren Kransky, has cancer and may not live much longer, lawyers involved in the case said. DePuy has already settled a few A.S.R. cases before trial and it may choose to do so in Mr. Kransky’s case as well.

About 93,000 patients worldwide received an A.S.R., about one-third of them in the United States.

There are two versions of the A.S.R., one used in standard hip implants and the other used in an alternative replacement procedure known as resurfacing. Only the standard implant was sold in the United States. Both versions of the A.S.R., however, used the same metal hip cup as part of their design.

Asked for comment about the company’s internal analysis, a spokeswoman for DePuy, Mindy Tinsley, said in a statement that it “was based on a small, limited set of data that could not be used to generalize” the overall failure rate for the A.S.R.

In 2011, when DePuy challenged the British joint registry’s findings, the company made similar comments. Other medical organizations, however, have also projected very high failure rates for the A.S.R.

Hip implants, which are generally made from metal and plastic, often last for 15 years before they wear out and need to be replaced. Such devices can fail prematurely for a variety of reasons, but the early replacement rate is typically 1 percent after a year, or 5 percent at five years.

In pretrial testimony, Paul Voorhorst, DePuy’s director of biostatistics and data management, said that the company performed several reviews of A.S.R. failures in patients in fall 2011, a year after it recalled the model.

Based on the number of patients who had already undergone device replacement at the time, DePuy estimated that about 37 percent of patients who got an A.S.R. might need to have it replaced within five years of receiving it.

Last year, The New York Times reported that DePuy executives decided in 2009 to phase out the A.S.R. and sell off its inventories weeks after the Food and Drug Administration asked the company in a letter for additional safety data about the implant.

The F.D.A. also told the company at that time that it was rejecting its efforts to sell the resurfacing version of the device in the United States because of concerns about “high concentration of metal ions” in the blood of patients who received it.

In other pretrial testimony released Friday, a DePuy engineer stated that company officials were aware in 2008 of reports by an English surgeon that the resurfacing version of the A.S.R. was releasing high levels of metallic ions, particularly in women. As a result of the reports, company officials felt they had to move quickly to redesign the implant.

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Source: The New York Times (Meier, 1/22)

North Texas at top of list of state's worst roads

DFW AIRPORT - More than a fourth of Texas' 100 top transportation challenges are in the Dallas-Fort Worth area, and two of the worst roads include two sections of Interstate 35W north of downtown Fort Worth, a report released Thursday concluded.

In all, 26 of the 100 biggest transportation challenges in the state are in North Texas, based on factors such as road conditions, congestion and cost of improvement, according to a report released by TRIP, a Washington-based organization that favors increased highway funding.

Local and national transportation advocates used the report's release Thursday to call on the Texas Legislature to increase highway funding to avoid stalling the state's economic growth.

"The consequence of not making these improvements is severe," said Carolyn Bonifas Kelly, associate director of research for TRIP, a Washington-based organization supported by insurance and construction companies and other businesses that favor increased highway funding.

Gathering at Dallas Fort Worth Airport's headquarters, officials from TRIP, the Texas Good Roads and Transportation Association and other groups called for lawmakers to embrace new funding sources. The state currently relies on motor fuel taxes and money borrowed through bonds to pay for its roads.

"Now, when TxDot does its budget and takes $2 billion off the top for debt, that's money that's not going to these projects," said Lawrence Olsen, executive vice president of Texas Good Roads. Among the local projects listed on the report's top 100 Texas transportation challenges:

Interstate 30 from Jefferson Street to Loop 12 in Dallas - a corridor that will be addressed in the Horseshoe project recently funded by the Texas Transportation Commission. Late last year, the commission selected a developer, Pegasus Link Constructors, which committed to performing $798 million worth of work in the corridor. That area is often used by motorists arriving in Dallas from the Arlington area.

I-35W from Texas 183 (28th Street) to U.S. 81 (Decatur Cutoff) in north Fort Worth - a project that is being addressed in the North Tarrant Express development project. Work is expected to begin this spring on the reconstruction of existing lanes and the addition of two toll lanes in each direction - but the goal of adding free lanes and continuous frontage roads will not be achieved for more than a decade under current spending plans, officials said.

U.S. 75 from Texas 190 (Bush Turnpike) to Interstate 635 in Dallas County. State officials said the proposed addition of managed lanes will be the subject of a corridor study over the next couple of years. However, the improvements aren't currently funded. I-35W from Interstate 30 to Texas 183 (28th Street) in Fort Worth -- also part of North Tarrant Express. This area also will get a makeover, with the addition of toll lanes, but new free lanes won't be added in the near term.

During the current legislative session, lawmakers are being asked to get serious about providing better long-term funding sources for transportation. Rider Scott, executive director of the Dallas Regional Mobility Coalition, said a growing number of citizens want the state to find funds to fix the crumbling roads.

Among the suggestions is that the state stop diverting transportation funds to other projects, which could generate about $1.2 billion per year. Another idea would be to dedicate sales taxes paid on automobile purchases to the state's Fund 6 highway fund, rather than the general fund, raising another $3 billion

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Source: Star-telegram (Dickson, 1/17)

Electric Cars Recalled for Parking-Brake Problem

Polaris Industries is recalling certain 2010 to 2013 vehicles from its Global Electric Motorcars or GEM unit because their parking brakes might fail, allowing the cars to roll away after being parked.

The 4,394 electric cars affected by the recall include GEM E2, E2 XLD, E2L, E2S, E4, E4S, ELXD EL E6, E6S and ES models built from Jan. 14, 2010, through Nov. 23, 2012. On these vehicles the parking brake has mechanical parts that may wear prematurely and prevent the brake from engaging.

If the parking brake doesn’t engage properly, the car could roll away from its parking space, possibly causing injuries or colliding with another vehicle or other obstacles.

Under the recall Polaris, which also builds motorcycles, snowmobiles and watercraft, will notify owners and its dealers will replace the parking brake lever assembly free of charge. The recall is expected to begin February 4. Owners may contact Polaris customer service at 888-704-5290.

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Source: The Wall Street Journal (AP, 1/14)

Texas court asks: Is man's best friend priceless?

AUSTIN, Texas— They say all dogs go to heaven. But if they get there before their time, should someone pay up?

The Texas Supreme Court began mulling Thursday whether grieving dog owners should be able to sue for the "emotional value" of man's best friend. It comes after a Fort Worth animal shelter mistakenly euthanized a beloved — but essentially worthless, in terms of actual market value — family Labrador retriever named Avery who ran away from home in 2009.

Lining up in opposition are skittish veterinarians who say letting juries somehow calculate sentimental payouts would set a costly precedent that would ripple nationwide. Justices on Texas' highest civil court appeared skeptical, too, at times of whether dogs should be granted an emotional price tag that humans in many scenarios aren't even afforded under state law.

"Where do we draw the line?" Justice Jeffrey S. Boyd asked from the bench. "Cats? Fish? Birds?"

The court isn't expected to issue a ruling for several weeks.

Dogs are property under Texas law. Steal your neighbor's cocker spaniel, and you'll be jailed for theft. But Jeremy and Kathryn Medlen, Avery's owners, believe dogs deserve the same standing the law gives to truly irreplaceable objects — say a great-grandmother's wedding ring, or an old family photograph destroyed in a fire.

Juries in Texas are allowed to weigh sentimental value when it comes to that kind of one-of-a-kind, cherished property. So the Meldens asked: Why aren't dogs and their loyal, loving and faithful companionship classified the same?

"We're asking dogs to be treated like all other property," Randall Turner, the family's attorney, told the court.

From the start, justices of the nine-member panel peppered Turner with questions and wild hypotheticals, resulting in stifled laughs from the courtroom gallery more than once.

Justice Don Willett asked where a stuffed dog might fall under this new standard. He later painted a difference scenario: a twin sister walking a dog down the street when both are run over by a distracted driver barreling around the curve while texting. Under the law, damages for mental anguish can be collected only for the death of a parent, spouse or child. So wouldn't it be strange, Willett asked, for the surviving sister to collect money for the dog, but not her twin?

"It might seem strange. But not really," Turner responded. "Let's change the hypothetical and say that instead of walking her dog, she's carrying a family heirloom. And there's a collision, the sister is killed, and also the cherished family heirloom is destroyed. Well, under existing Texas law handed down by this court, there is no dispute she couldn't recover a wrongful death case for (her) sister, but she could for the sentimental value of the heirloom. That would be a strange result, but that's the law."

John Cayce, an attorney for the shelter worker named in the lawsuit, argued that a victory for the Medlens would result in skyrocketing insurance premiums for veterinarians terrified of being sued.

He also said that sentient beings aren't like any other irreplaceable family memorabilia.

"Humans don't bond to heirlooms," Cayce said. "They bond to pets."

The Medlen family did not attend the hearing. Their dog was mistakenly euthanized in 2009 despite the shelter placing a hold tag on Avery after the family came to claim her at the shelter, but was unable to immediately pay an $80 fee to get her back. When the family returned with the cash, they learned Avery had been put down.

Turner said the Medlens remain so brokenhearted they have yet to adopt another dog. He added that the family isn't actually trying to collect money, but merely trying to change the law so that "Avery didn't die in vain."

Cayce said Texas is already more generous than most states when it comes to compensating owners who lose dogs that have marketable value, such as a prize-winning pedigree show dog or a stunt dog whose owners invested thousands of dollars in training.

Justice Phil Johnson said changing the law might motivate owners to downplay their dog's actual worth so they could collect more on sentimental value instead.

"They're going to try to prove this is a worthless dog so that I can get a lot of money," he said.

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Source: Yahoo (AP, 1/11)

Two dogs sprayed by mail carrier

Plainview Postmaster Matthew Dolle acknowledged Tuesday that postal officials are investigating an incident Saturday where a carrier allegedly used pepper spray on two dogs inside a fenced yard.

According to their owner, David Ballard, the Saturday morning incident was witnessed by one of his neighbors on Hastey Drive, in a mobile home park off Andy Taylor Road.

“At this point I can say that we are looking into the incident and are concerned,” Dolle said. “I’m not at liberty to say much more than that.”

Sam Bolen of San Marcus, who serves as media relations specialist for this postal region, added that a postal carrier normally will only use pepper spray if they feel threatened, and only as a last resort.

“We take any complaints seriously, we will investigate them thoroughly,” Bolen said. “But we also take the threat of animal attacks seriously.”

Ballard said his two dogs, a 2-year-old, 75-pound boxer and a year-old shepherd-husky mix, were in a fenced yard outside his mobile home — one of 13 in the small rural development — when the postal carrier stopped to deliver a package.

“A neighbor said they watched the carrier get out of his vehicle and grab a tire iron, which she thought rather odd,” Ballard said. After putting the tire iron back inside his vehicle, the carrier was seen with a red package which he left in the middle of the driveway.

Ballard said that for no apparent reason, the carrier sprayed his two dogs with pepper spray as the carrier entered the driveway, adjacent to the fenced yard. After the carrier dropped off the package, Ballard said the neighbor saw him spray both dogs with pepper spray twice on the carrier’s way out.

“I realize that my dogs may look intimidating,” Ballard said Tuesday. “Especially the boxer, but they are both friendly and not at all aggressive. They will bark at any cats in the area, but they haven’t been trained to attack.”

He said they likely moved up to the edge of the fence when the carrier approached, wanting to be petted. “We had the Dish TV man out here recently, and he didn’t have a problem with the two dogs, and whenever the pizza man makes a delivery he usually reaches over the fence and pets the dogs while he is waiting for us to come out,” Ballard said.

He and his wife, Gretta, contacted their veterinarian on Saturday, who told them to rinse the pepper spray residue from the dogs’ eyes and faces with water.

“He said there wasn’t much else we could do,” Ballard said. “Gretta ended up getting a dose of pepper spray herself while she was trying to clean up the dogs.”

Although the canines did not appear to suffer any lasting physical effects from the spray, Ballard on Saturday filed an offense report for animal cruelty with the Hale County Sheriff’s Office.

“I still don’t understand why the carrier had to spray our dogs three times, from six feet away, when they were inside a fence where they were supposed to be.”

Noting that “we’ve had issues in the past” with that specific carrier, Ballard said he has asked that in the future any packages be held at the post office instead of being left unattended in the driveway. “I’d rather have a yellow slip in the mailbox, instead of a package left in the driveway for anybody to stop and pick up as they drive by.”

While admitting he is not familiar with Saturday’s incident, Bolen said statistically 4.7 million Americans are bitten by dogs each year.

“In 2011, a total of 5,577 postal employees were attacked by animals,” he noted. “Dog bites account for about one-third of all liability claims filed against homeowners insurance policies each year, at a cost of about $400 million.”

In 2011, Los Angeles had the highest number of dog attacks involving postal carriers at 83. The five worse Texas cities for postal dog attacks that year were Houston, at 47; Dallas, 41; San Antonio, 39; Fort Worth, 23; and El Paso, 20.

“Postal carriers understand that any dog can bite,” Bolen explained. “And ‘my dog doesn’t bite,’ often is the last thing a carrier will hear before he or she gets bitten. We take awareness and prevention seriously because we want our carriers to realize how a dog is likely to react whenever it feels threatened.”

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Source: Texas Headlines (McDonough, 1/9)

Bill filed to address dangerous-dog appeals

Pet owners who want to try to prevent their dog from being declared dangerous, which puts it at risk of being euthanized, could soon have a way of appealing the designation in court.

State Rep. Eddie Rodriguez, D-Austin, has introduced a bill that would allow appeals of dangerous dog declarations to be heard in county courts at law.

The bill number is HB 297. The Legislature convenes Tuesday.

Previous legislation on the issue was flawed. It stated that dangerous dog cases could be appealed to county criminal courts in large counties, such as Tarrant. But under other laws, those courts do not have jurisdiction in civil cases, which is what a dangerous dog declaration is.

Randy Turner, an attorney specializing in animal-rights issues, said the same legislation was introduced during the last session but died in the Calendars Committee.

"This is a good bill," Turner said.

It not only clears up which court should hear the cases, but also calls for jury trials in municipal court for dangerous-dog cases, he said.

"When a trial judge knows that a case can't be appealed, he can do whatever he wants," Turner said. "There is no one around grading his papers."

Historically, municipal courts handled criminal cases but gradually started handling some civil matters, including dangerous-dog rulings, red-light camera cases and parking violations, which can't be appealed to the criminal court.

Rodriguez's bill addresses only the dangerous-dog issue.

The flaw in the appeal process came to light last fall when Thomas and Rana Soluri's two pit bulls, Lilo and Stitch, were declared dangerous by a Fort Worth municipal judge.

They discovered that their appeal couldn't go anywhere, and the Soluris, along with the Lexis Project, a national organization representing dangerous-dog owners in legal disputes, sued the city saying the ordinance was unconstitutional because the appeals process was flawed.

The Soluris did not return calls seeking comment on the new bill.

The controversy started in late August when the Soluris' neighbor filed a complaint with the city animal control division, describing how Lilo and Stitch broke through a fence and charged at her German shepherd puppy and her. The Soluris' dogs were seized Sept. 22 and declared dangerous five days later.

A state district judge prevented the city from euthanizing the dogs, and Rana Soluri agreed to comply with city rules so that her dogs would not be put down. The agreement required Soluri to pay about $2,700 for boarding and veterinary care and to comply with seven conditions set by a municipal judge.

The agreement ended the court case, but the family and their attorney said they were disappointed that they had no chance to settle what was called a "constitutional violation."

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Source: Star-Telegram (Campbell, 1/1)