Vested Interest - Tort Briefs - November 2003 Issue

Medicare Stakes Claim on Implant Class Settlement

The federal government won a potentially huge decision at the 11th U.S. Circuit Court of Appeals in a case where it seeks reimbursements to Medicare for healthcare expenditures for women who claimed they were injured by silicone breast implants. The judges ruled that taxpayers could be reimbursed for Medicare payments made on behalf of the women. The decision reversed a lower court ruling that had thrown out the government’s attempt to add on to the $4.2 billion settlement hatched in 1994 between a class of plaintiffs and eight implant manufacturers. The government’s take would not come from the settlement fund, but as additional payments from the manufacturers. (ATLA Law News Digest – September 25, 2003)

California Smoker’s Verdict Cut by More than Half

Citing the U.S. Supreme Court’s ruling this year in State Farm v. Campbell, a California appellate court has ordered a lung cancer victim’s award of punitive damages against Philip Morris reduced to six times her compensatory damages. The ruling was noteworthy in two respects: it came grudgingly from a court that had previously affirmed the ruling, and it extended the concept of a ratio between compensatory and punitive damages from economic injury to personal injury cases, which the U.S. Supreme Court has not done. (Liability & Insurance Week – September 22, 2003)

Signing Away Your Right to Sue

In an effort to fend off lawsuits, a growing number of companies, including Comcast Corp. and Amazon.com Inc., are asking consumers to agree to "mandatory arbitration" and waive their right to sue the company if a dispute arises. These binding arbitration clauses have been standard in credit-card and stock brokerage contracts for years, but they are now migrating into the fine print of everyday consumer services, including cable TV, cell phones, online retailers, gyms, auto financing firms, travel agencies and summer camps. Even more jarring to some consumers: While health-maintenance organizations have long required arbitration, some private doctors - in an effort to rein in medical-malpractice claims - are making patients agree to arbitration before they receive medical care. (ATLA Law News Digest – October 2, 2003)

Worker Receives Award for Severed Arm

A Cook County jury returned an award for an ironworker after the man’s arm was severed by a plummeting 500-pound beam. The beam fell as it was being hoisted over the heads of the workers. A jury agreed that the general contractor was negligent. The man’s arm has been reattached but has lost mobility. (Chicago Sun-Times – October 6, 2003)

Paint Makers Score Key Legal Win

An Illinois judge dismissed a suit filed by the City of Chicago against 12 paint manufacturers seeking to make them cover the costs of cleanup and treatment stemming from lead paint in City of Chicago v. American Cyanamid Co. In her ruling, the judge held that the city’s claim fell outside the boundaries of Illinois public nuisance law and that the companies are not responsible for the product after the point of sale. The Chicago action came in the wake of similar rulings in New Jersey, California and Wisconsin. Dozens of defendants, including Sherwin-Williams, Atlantic Richfield, BP America and American Cyanamid, have been named in suits that are testing public nuisance claims against the industry. (ATLA Law News Digest – October 23, 2003; AP – October 8, 2003)

Malpractice Makes Perfect

When he went out on strike last January, Dr. Robert Zaleski had his 15 minutes of fame. The Wheeling, West Virginia, orthopedic surgeon was one of two dozen surgeons to walk off the job in January to protest his state’s high costs of malpractice insurance. As the walkout turned into a national story, Zaleski became one of its most visible faces. But between 1987 and 2002, according to the West Virginia Board of Medicine, patients filed 14 lawsuits against Zaleski, eight of which resulted in payouts that together came to $1.7 million. By contrast, according to a Public Citizen study, only 1 percent of the state’s doctors made five or more malpractice payouts over the past decade. In a 1985 lawsuit (one not among the 14 reported to the Board of Medicine), he admitted in a deposition to being addicted to prescription painkillers for a substantial part of the time that he was operating on people in the early 1980s. Zaleski allegedly wrote prescriptions for other local addicts, who filled them and kicked back some pills to the doctor, according to court documents that include copies of the prescriptions and depositions from some of the addicts. Yet even though a suspicious police officer reported him to the state medical board, Zaleski was never disciplined by his fellow physicians. (ATLA Law News Digest – October 9, 2003)

Ex parte Communications Were Permissible in Malpractice Action

The Appellate Court of Illinois, Fourth District, has ruled in Hall v. Flowers that the limited ex parte communications were permissible under the Hospital Licensing Act between the hospital’s defense counsel in a medical malpractice action and the patient’s treating physician. The ex parte communications took place after the physician became a hospital employee, the communications involved the physician’s treatment within the hospital setting, and any information known by the physician with respect to the patient’s care was the hospital’s information. (ATLA Law News Digest – October 9, 2003)

Philip Morris Settles Suit Over Fire that Burned Girl

Breaking with long-standing practice, tobacco giant Philip Morris has paid to settle the case of a Texas child who suffered disfiguring burns in a fire allegedly caused by a smoldering cigarette. The agreement represents a breakthrough for plaintiffs after more than 20 years of fruitless litigation over cigarette fires. It also marks the first time that Philip Morris, the top U.S. cigarette maker, has agreed to pay damages in a personal injury case of any kind. Philip Morris said its settlement in Texas did not signal a tactical shift, but industry foes said news of the agreement probably would attract more suits. Lawyers for the girl blamed the fire on defective design of a Marlboro 100 cigarette, which like other brands is intentionally made to burn down to the filter even when not being puffed. The lawsuit claimed that the child’s mother inadvertently allowed the cigarette to fall on the car seat, where it continued to smolder after she got out of the car. Philip Morris contended that there was no proof that a cigarette caused the fire, and that no matter the cause, the mother was to blame for leaving her child unattended. (ATLA Law News Digest – October 9, 2003)