In a previous post, we covered Facebook and cell phone usage by jurors during trials and the fact that judges have to warn jury members explicitly against using social media during a trial. Many have gone so far as to collect jurors’ cell phones at the beginning of proceedings each day.

What we have not yet focused on is the fact that Facebook and Twitter can be damaging and even detrimental to a plaintiff in a personal injury suit. Surely we all know people who “overshare” on social networking sites, but this can really come back to bite someone if he or she is injured by a negligent party and doesn’t understand how a simple photo or statement can be perceived as damaging.

As many legal blogs note, it is now common practice for law firms to conduct Internet searches on those seeking to file a personal injury lawsuit. As a Texas blog notes, if a young man is injured in a car accident late at night through no fault of his own, but his Facebook profile is full of photos of him drinking at bars with his friends or his Twitter feed is full of boasts about how fast his car is, attorneys will be very hesitant to represent him in an auto accident case. If plaintiffs’ attorneys have the ability to find this damaging information, surely the other side would find it too.

Even more disastrous would be a plaintiff claiming to have severe injuries despite photos showing him or her playing sports or carousing with friends after an accident. It would be immediately perceived to all parties involved that this person is lying about the extent of his or her ailments and his or her claim would be damaged.

Another growing problem is the interconnectedness of these social media sites. It is no longer the case that a Facebook profile only shows information from the owner of the page. Rather, it is full of photos taken by other people, comments on those photos, tags in notes, and messages from friends and family members. All of these can be just as dangerous as one’s own posts: they’re just as visible and just as potentially damaging.

The advice from the experts (even if it seems like overkill) is to assume everything you post on the Internet is fair game for discovery (the time before trial when attorneys are compiling evidence). The common practice for most social media users is to hide behind his or her privacy settings but this is never a surefire way to ensure true isolation from unfriendly eyes in this day and age. If you’re even in doubt about whether something is appropriate to post to Facebook or Twitter, err on the side of caution and keep it to yourself.

But there are other issues at work when it comes to considering social media’s encroachment into legal proceedings. Recently, Mary Pat Gallagher wrote an article in the New Jersey Law Journal in which she discussed the dangers surrounding jurors using social media sites to post information about the trials playing out in front of them. After all, Facebook sees nearly 2.5 billion comments and posts per day, while Twitter users post about 175 million messages daily. She takes information from a survey undertaken by the Federal Judicial Center’s newsletter that states 94 percent of the 508 judges who responded have actively taken measures against social media use in trials over which they preside.

Startlingly, jurors are not merely searching for information on participants in a trial. As Gallagher notes, “Three judges described a juror friending or trying to friend one or more participants in the case. There were also three reports of juror communications or attempted communications with trial participants, three instances of juror disclosure of aspects of the deliberation process and one of disclosure of information about other jurors…Two judges had a juror who contacted a party with case-specific information: one juror contacted the plaintiff’s former employee to disclose a likely verdict and the other, an alternate, used Facebook to contact a lawyer during deliberations with feedback and the likely outcome.”

We watched a juror’s use of social media play out with Philadelphia lawyers in 2009 during the corruption trial of former Democratic State Sen. Vince Fumo. A federal jury was in recess for the weekend after nearing the end of its deliberations when The Philadelphia Inquirer City Editor Julie Busby discovered that one of the jurors was posting about the deliberations on his Facebook and Twitter pages claiming that there would be a “big announcement.” The defense lawyers moved for an immediate halt in jury deliberations and the removal of one juror which was a direct violation of the judge’s instructions not to disclose the status of deliberations. While the juror was removed and an alternate put in place, Fumo was ultimately convicted, however, the Philadelphia trial lawyers for the defense gained fodder for the appeal.

Solving the problem has been a difficult one. About one-fifth of judges require that jurors turn over their electronic devices at the beginning of each trial day, thus removing the temptation for jurors to use them at all. About 11 judges ask jurors to swear oaths that they will either abstain from all social media use during the trial or not do any outside research on any of the involved parties. The vast majority, however, simply use clear, straightforward language to explain why carrying information over from a trial onto cyberspace is dangerous and potentially harmful to everyone involved. These judges say that when they give this speech, jurors listen and obey. It is crucial for judges to be mindful of such activities since mobile access to the Internet and social media sharing sites has become commonplace.

Another encouraging sign is that when jurors have disregarded a judge’s explicit instructions, other jurors have stepped up to report them. The offending jury member is typically then removed from the courtroom and replaced with an alternate, although other judges have declared a mistrial, held the juror in contempt or even fined the juror.

According to Dr. Meryl Ain’s writing in the Huffington Post, the National Highway Traffic Safety Administration does not require large buses (vehicles weighing more than five tons) to be equipped with safety belts, even though 80 percent of buses in the United States fall into this category. Only six states have laws requiring seatbelts on all buses (New York, New Jersey, Texas, Louisiana, Florida and California) but legal loopholes do not require students to use the belts in all cases.

There are close to half a million school buses operating throughout the country. Together, those buses transport just under 24 million children on a daily basis. Including camps, extended day programs, sports and other extracurricular activities, the school bus system is the largest public transportation system in the country. This fact alone means that well over 10 million cars (estimates range up to 17 million) are kept off the road every weekday morning and afternoon due to these buses. Statistically speaking, school buses are very safe, much safer than normal automobiles. Out of these tens of millions of students, according to the University of Rochester Medical Center, about 17,000 students are treated in emergency rooms every year for school bus-related injuries. The article continues:

“About 24 percent of injuries involve getting on or off the school bus, according to the CIPP [Center for Innovation in Pediatric Practice] report. Although an average of seven school-age passengers are killed in school bus crashes each year, 19 are killed getting on and off the bus, according to School Transportation News.

Most of those killed are 5 to 7 years old. They are hit in the “danger zone” around the bus. This is the area 10 feet in front of the bus, 10 feet behind it and 10 feet to either side of it. The children are struck either by the school bus itself or by a passing vehicle, even though it is illegal for a vehicle to pass a bus with its red light flashing.”

There are times, however, when negligence may be the contributing factor in school bus accidents which we have seen more recently. In February of 2012, one child died and 17 children were injured in New Jersey because a dump truck collided with a school bus. In March 2012, 11 children and a bus driver were injured when an SUV collided with a school bus in New Jersey, and the driver of a soft drink truck was killed when he collided with a school bus carrying high school students in western Pennsylvania.

The National Crime Prevention Council reminds us that buses are large vehicles, and for that reason, bus drivers cannot always see small children if they are too close to the vehicle. They advise parents to tell their kids to arrive at their bus stop a few minutes early so an approaching driver can clearly see them. They should always wait on the sidewalk or the grass before loading onto the bus, never the shoulder of the road. They should also never try to retrieve any item dropped under the bus or walk behind the bus for any reason. The University of Rochester suggests that children stay at least 10 feet, or, more memorably, at least five giant steps away from the bus at all times. As in a lot of cases, a little bit of observation and vigilance can go a long way toward keeping children safe.

How great is the risk of drug interactions if you take more than one medication? According to the Cleveland Clinic, patients taking only two medications face a 15 percent risk of a dangerous drug interaction. This figure increases to 40 percent for those taking five medications and 80 percent for those taking seven or more medications!

Researchers have addressed the performance of this type of drug interaction computer software. A study from 2001 published in the Journal of the American Pharmacist Association covered more than 500 community and corporate pharmacies in Washington State which used six different types of computer software programs designed to detect dangerous drug-drug interactions. The researchers concluded that these software systems failed to detect clinically relevant drug interactions one-third of the time. These researchers also concluded that improvement in these computer software programs is needed if they are to advance their contribution to the detection of dangerous drug interactions.

Consider also a similar study that was conducted at the University of Arizona College of Pharmacy in 2011, a decade after the Washington study. While the later study was significantly smaller (carried out at only 64 pharmacies rather than 500+), the findings were even more concerning. As reported in the school’s UA News, only 28 percent of the drug interaction software systems—the computer programs that are in place to alert pharmacists to possible medication problems—correctly identified potentially dangerous drug-drug interactions.

Out of all 64 pharmacies in the Arizona study, only 18 were able to detect all the potentially dangerous interactions. The lead researcher and a professor of pharmacy warned, “These findings suggest that we have a fundamental problem with the way interactions are evaluated by drug-knowledge databases.”

The drug that may cause the greatest number of dangerous interactions when combined with other medications is the frequently prescribed medication, warfarin, most commonly known as Coumadin. This medication, often prescribed for blood clots, heart attacks and stroke, and described as a “blood thinner” (although it technically does not thin blood), is sold also under the names Coumadin, Jantoven, Marevan, Lawarin, Waran and Warfant. Not only does this medication interact with other prescription drugs, it can also be dangerous in the presence of certain foods and herbs. (Those believed to be dangerously linked with Coumadin or warfarin are garlic, ginseng, ginger, cranberry juice and St. John’s wort.)

The FDA estimates that 2 million people start taking Coumadin or warfarin in the U.S. each year. It is an essential and life-saving drug for many. The appropriate dosage of the drug may be difficult to assess because the amount that is proper per patient depends on various factors including the patient’s age, diet and other medications. Patients who are prescribed a dose larger than appropriate are then at risk of life-threatening bleeding. Too low a dose puts the patient at risk for the formation of dangerous blood clots. Taking Coumadin at the same time as other ‘interacting’ drugs or herbs may increase the risk of negative side-effects.

A 2005 study published in the Archives of Internal Medicine concludes:

“The number of drugs reported to interact with warfarin [Coumadin] continues to expand. While most reports are of poor quality and present potentially misleading conclusions, the consistency of reports of interactions with azole antibiotics, macrolides, quinolones, nonsteroidal anti-inflammatory drugs, including selective cyclooxygenase-2 inhibitors, selective serotonin reuptake inhibitors, omeprazole, lipid-lowering agents, amiodarone and fluorouracil, suggests that coadministration with warfarin should be avoided or closely monitored. More systematic study of warfarin drug interactions in patients is urgently needed.”

While that may sound like a lot of highly technical jargon, it should be evident that Coumadin can cause potentially harmful effects if combined with certain substances, be they medicinal, herbal or simply food.

This is a matter for professional consultation. If you are on a long-term medication like Coumadin, it is critical to speak with your doctor and pharmacist promptly about potentially harmful combinations and alert all health care practitioners and pharmacists to all the medications, herbal remedies, etc. that you are taking along with Coumadin so that they may assess any risks you face. Of course, you should never act on your own to change your medications—this could pose even greater risks. A full discussion with your health care practitioners and pharmacists is the first essential step to guard against potential dangerous drug interactions.

We first explained neural tube defects in a post explaining how failure to prescribe folic acid can lead to spina bifida and other neural tube disorders. It goes into detail about the importance of women getting sufficient b-vitamin folic acid during the early weeks of their pregnancy. However, another contributing factor is Depakote (which is also sold under the names Depakene, Epilim, and Stavzor). Neural tube defects, also known as NTDs, are an umbrella term for birth defects like spina bifida, anencephaly, and encephaloceles. The neural tube is the structure in a maturing baby that will eventually surround its brain and spinal cord, and its proper growth will in turn promote healthy development of the brain and spinal cord.

Approximately 1 in 1,500 babies are born with NTDs, but for babies born to mothers taking a form of valproate during the first trimester, the rate increases substantially to 1 in 20. In other words, the birth defect rate can be up to 80% higher for those mothers taking valproate in any of its forms. Additionally, children exposed to valproate under the age of two have reported serious liver conditions. These findings are well established. Doctors are responsible for counseling their female patients regarding the dangers Depakote poses and failure to do so could be considered medical malpractice.

Both the National Institute for Health (NIH) and the FDA have issued advisories about the drug. The FDA’s safety alert regarding babies exposed to valproate sodium and other related products during the mother’s pregnancy reads in part:

“The FDA is reminding health care professionals about the increased risk of neural tube defects and other major birth defects, such as craniofacial defects and cardiovascular malformations, in babies exposed to valproate sodium and related products (valproic acid and divalproex sodium) during pregnancy…Healthcare practitioners should inform women of childbearing potential about these risks, and consider alternative therapies, especially if using valproate to treat migraines or other conditions not usually considered life-threatening.”

Reports of complications in newborns have ranged from the above-mentioned NTDs, cognitive impairment, and autism spectrum disorders. A 2009 study in the New England Journal of Medicine says, “At 3 year of age, children who had been exposed to valproate in utero had significantly lower IQ scores than those who had been exposed to other antiepileptic drugs.”

In addition to these heartbreaking statistics, WebMD has listed six birth defects that occur more frequently in pregnant women taking valproate than in those not taking the drug:

• Spina bifida
• Atrial septal defect (hole in the heart)
• Cleft palate
• Hypospadias (a genital abnormality in boys)
• Polydactyly (extra fingers and/or toes)
• Craniosynostosis (an abnormality in newborns’ skulls)

This medication is especially dangerous to babies because their mothers often do not know they are carrying a child until a few weeks into their pregnancy. Most neural tube defects occur during this phase. If you know of a child who suffers from any of these ailments and their mother was taking Depakote during pregnancy, their problems could have been prevented. With vigilance and careful planning on the part of a doctor, valproate-prescribed mothers can usually avoid such tragic defects.

Feldman Shepherd attorneys Mark W. Tanner and Peter M. Newman settled a case involving a dryer fire in a home that resulted in the tragic deaths of two children and the destruction of a house. At one of the court hearings in the wrongful death product liability case, the personal injury attorneys called an expert witness who explained to the court how the design of the clothes dryer caused the fire in question. The expert had tested his theory by building a mock-up of the fire scene (a replica of the victims’ laundry area complete with a similar washer and clothes dryer).

The tests showed that lint accumulated inside the dryer cabinet where the consumer could not see it or clean it. When even a small amount of that lint, as little as one-tenth of a gram, came into contact with the heating coils behind the drum, it ignited and spread to other accumulated lint behind the drum.

The dryer designer / manufacturer argued that even if this were the case, the lint would not cause a fire to spread into the drum. But the videos of fires in test dryers that were screened in court by the Feldman Shepherd attorneys proved otherwise. Cameras mounted inside the test dryers showed burning lint drawn into the spinning drum where in turn cotton towels caught fire.

The dryer designer / manufacturer also claimed that even in the event of a fire inside the drum of the machine, the door of their dryer would not open, thus keeping the fire safely contained. The test video proved them wrong again. Testing conducted by the Feldman Shepherd lawyers and their expert witness demonstrated that the heat from the fire caused the dryer’s plastic door latch to melt, allowing the door to swing open and the fire to spread to the rest of the room.

The most recent CPSC report on the matter (in 2003) reached similar conclusions: “The results of the CPSC staff tests showed that lint that accumulates inside the dryer can ignite if the lint contacts certain areas of the heater housing, if the lint is in proximity to the heater, or if the lint is ingested by the heater box.”

Another expert for the personal injury victims explained that this dryer design was needlessly dangerous and that safer designs are both feasible and cost-effective to build. The alternative design places the heating coils at the base of the cabinet, much further from the clothes drum, and incorporates a metal barrier separating lint accumulation from the hot coils.
There are believed to be millions of clothes dryers currently in use in the United States that present an unnecessary risk of lint accumulation and fire. Until the industry implements safer designs, the extraordinary number of dryer fires, more than 15,000 every year, and the needless loss of life and property, is expected to continue.

Advocates for tort reform legislation argue that doctors who fear lawsuits for medical negligence practice “defensive medicine,” ordering unnecessary tests and complicated procedures to cover all their bases. They claim that this drives up the cost of healthcare for the average citizen, which, when coupled with rising medical malpractice insurance costs for doctors and large settlements and verdicts against hospitals, is no good for anyone.

Those who oppose tort reform legislation think just the opposite: healthcare costs are inflating because of expensive new technologies and medication. Many also argue that rather than fearing litigation, it is generally in a hospital’s financial interest to maximize treatment, as the current structure has patients paying more for additional tests and procedures. As of 2009, malpractice costs represent 0.46% of total healthcare spending . Again, that is less than one half of one percent. Most importantly, critics of tort reform claim that caps on damages are completely unfair. In other words, if people are harmed through no fault of their own, they have the right to be fairly compensated, and it is the job of jurors and judges, and not politicians, to tell them what monetary amount is fair.

Has any state that has enacted tort reform legislation seen any positive or negative changes in its healthcare system?

Again, as you might expect, it depends. Ohio passed a tort reform package that includes caps on pain and suffering, and damages (except in catastrophic cases, defined as permanent physical deformity, loss of limb[s] or organ system[s], or permanent injury that prevents the injured person from caring for him- or herself).

Stephen Koff of the Cleveland Plain Dealer writes:

“In 2004, the year Ohio passed lawsuit liability reform, average premiums for employer-based family health plans were $9,590, according to data from the nonpartisan Kaiser Family Foundation. By 2008, average family premiums were $11,425. This means that four years after the state passed reform, health insurance for Ohio families in employer plans had gone up by 19 percent. That compared with a national average rise of nearly 22 percent during that time.”

In short, yes, costs did not rise as quickly as the national average, but only by the slimmest of margins. This cannot be attributed to caps on damages with any kind of certainty, as correlation does not prove causation. What is even more important to note is that states like Kentucky, which borders Ohio, saw even less of an increase in premiums without any tort reform measures. Tort reform supporters cannot explain this statistic. The additional fact that lawsuits usually take several years to make it from filing to result further confuses these numbers.

Tom Baker, a University of Pennsylvania Law School professor said in a 2009 interview: “We have approximately the same number of claims today as in the late 1980s. Think about that. The cost of health care has doubled since then. The number of medical encounters between doctors and patients has gone up — and research shows a more or less constant rate of errors per hospitalizations. That means we have a declining rate of lawsuits relative to numbers of injuries.”

While this state has not yet passed legislation capping damages, Pennsylvania medical malpractice lawyers and those injured due to negligence still fear the prospect. Advocates hope to avoid such measures, especially since the state has seen dramatic decreases in the number of medical malpractice suits filed over the past decade. Be sure to check back next week, where the topic will be just that.

The press release states, “In 2009, there were 1,533 filings, representing a 43.9 percent decline from the ‘base years’ 2000 – 2002. In Philadelphia, the state’s judicial district with the largest caseload, the decline has been by nearly 60 percent during the same period.” The numbers of filings peaked in 2002 at 2,904 and have dropped to 1,533 in 2009. The tables attached to the document indicate that in 2009 there was only one jury verdict over $5 million and that no non-jury verdicts awarded were greater than $500,000.

In 2001, as an effort to combat climbing numbers of suits, the Supreme Court of Pennsylvania put two rules into effect: first, an attorney must obtain a document signed by a medical professional that explains that the facts in the case document some actions that fall outside the accepted standards of medical practice. Second, a medical malpractice lawsuit can now only be filed in the county in which the alleged negligent action occurred. The first factor was an attempt to guarantee the merit of a given case, thus avoiding what the media has often called “frivolous lawsuits” and the second is a way of preventing changes of venues to find more sympathetic jurors.

The Chief Justice of the Pennsylvania Supreme Court Ronald D. Castille writes, “The downward trend is the product of a direction we set seven years ago to address a complex and challenging issue of concern to all Pennsylvanians. In the recent health care debate nationally, there is an insistent call for reform of the handling of medical malpractice cases within the judicial system. By these two rule changes, Pennsylvania is far ahead of the nation and of individual states in this arena, and we stand as a model of reform. Most importantly, justice for our citizens is still being delivered where patients are truly injured by medical mistakes.”

These numbers are extremely useful to bear in mind, especially as lawmakers continually push for tougher and tougher “tort reform” measures including caps on damages for those harmed through no fault of their own. Pennsylvania’s system has proven that filings can be kept low while still allowing high-merit cases to be heard and victims to be compensated.

Bilirubin is a yellow chemical produced in the blood from the normal breakdown of red blood cells. It travels to the liver, where it is then removed from the blood naturally. Sometimes, however, the liver cannot carry out this process fast enough, leaving bilirubin to keep increasing within a baby’s system. As it travels throughout the body via the bloodstream, the child’s skin begins to turn yellow. This condition is called hyperbilirubinemia and it is exceptionally dangerous. According to Virginia Commonwealth University, almost 60% of newborn babies experience jaundice, but only a very small fraction of these cases are allowed to worsen to hyperbilirubinemia.

As bilirubin reaches the brain, the condition worsens even further and is then known as kernicterus. It can often cause severe brain damage that can result in the child’s death. If the baby lives, he or she may experience serious deficits such as cerebral palsy, mental retardation, and/or problems with vision and hearing.

The most common sign that a baby is at risk for kernicterus is yellowing of the skin, especially in the first 24 hours after birth. Sometime, the whites of the baby’s eyes may turn yellow, too. Other signs are extreme lethargy: the baby is not alert, difficult to wake up, or can’t be kept awake. It is also important to regularly monitor their diapers, as they may have abnormal bladder and bowel functioning. Babies with kernicterus may have a shrill, high-pitched cry and may appear weak, limp, or floppy. A very late sign is if the baby lies unnaturally in bed with his or her body arching or bowing upward when lying on their backs.

Another concern about kernicterus is its misdiagnosis. The brain damage caused by this disorder can mimic some of the movement and language processing problems like autism spectrum disorders, mental retardation, and cerebral palsy, thereby resulting in a failure to identify kernicterus as the cause of a child’s symptoms.

It is worth remembering, though, that jaundice and kernicterus are not the same thing. In only a few cases does jaundice develop so aggressively that it becomes hyperbilirubinemia or kernicterus. Very often jaundice will go away without treatment. However, if treatment is required, the main solution is a simple one: babies are placed under special blue lights for a number of hours or wrapped in a “bili-blanket.” This is called phototherapy. It helps remove the bilirubin from the blood that can cause kernicterus.

Children who develop kernicterus as a result of excessive jaundice are very likely victims of medical malpractice. There is virtually no way for a baby to suffer from this disorder if they are being cared for adequately. While some children who have kernicterus can ultimately do well, others will have severe problems that will require a lifetime of care.

Research has shown that NTDs arise in the developing baby during the first 30 days of pregnancy and that women who regularly consume the B-vitamin folic acid prenatally and during the first months of pregnancy reduce their risk of having a baby with an NTD by up to 73%. Folic acid is found in small quantities in many fruits and vegetables, but major doses can be administered through neonatal vitamins that are regularly prescribed to expectant mothers.

It is important to note that in order to obtain the protective benefits of folic acid, prenatal vitamins or multivitamins need to be taken before and just after conception. By the time a woman ordinarily realizes she is pregnant, the brain and spinal cord have already developed to the point where it is too late for folic acid to be beneficial in terms of reducing the incidence of these NTDs.

Spina bifida affects a person’s spine, spinal cord, and its surrounding area and complications often involve paralysis, bowel and bladder irregularities, and altered skin sensation. Neural tube disorders also cause neurological problems the symptoms of which result in problems with memory, problem-solving, planning, mathematics, and shorter-than-normal attention spans.

Babies born with an encephalocele suffer from a hole in their skull out of which part of the brain grows. Babies born with encephaloceles have a variety of problems depending on where and how large the hole in the skull is, and how badly damaged the portion of brain is that protrudes through the hole. This condition can also cause the brain not to develop properly, which can result in death in some cases.

Due to the aforementioned problems NTDs can cause, it has become the medical standard of care to recommend multivitamin supplements containing folic acid to all women of childbearing age who are sexually active. It is a doctor’s responsibility to tell his or her patients about the dangers of neural tube disorders; failure to do so is a medical error.

Certainly, any woman who is planning to become pregnant while under a physician’s care should be prescribed prenatal vitamins or multivitamins before attempting to get pregnant. Despite everything the medical community has learned, however, studies show most women are still not getting enough folic acid when they become pregnant and about half the women in the United States do not even know that folic acid can help prevent birth defects. If all women of childbearing age in the United States were getting sufficient folic acid in their diets, hundreds of cases of NTDs could be prevented each year. These fatal and/or crippling birth defects currently affect about one in a thousand pregnancies in the U.S.

If you or someone you know was pregnant with a child with a neural tube disorder and a doctor failed to prescribe sufficient folic acid, there may be a claim on behalf of the child. The baby is likely to need extraordinary medical and surgical care and rehabilitation, all of which carry large expenses.