Farah & Farah June 2016 Newsletter

Posted on June 3, 2016

What Sank the El Faro Cargo Ship Still Undetermined

Coast Guard Capt. Jason Neubauer has a lot of visits to make. They will not be pleasant. Neubauer is chairman of the investigation into the loss of the cargo ship, El Faro last October 1. He plans to visit family members of the 33 crew lost to deliver face-to-face the findings of an on-going investigation into what caused El Faro to lose propulsion and sink near the Bahamas during Hurricane Joaquin.

Recently the Coast Guard Marine Board of Investigation ended its second week of hearings in Jacksonville. A third will be conducted, including information from the ship’s data recorder which was recently retrieved three miles underwater.  The El Faro investigation is the largest Coast Guard inquiry since the 2010 Deepwater Horizon explosion in the Gulf of Mexico. 

While the cause of the sinking is still officially unknown, what we do know so far is this-   

Two weeks before the ship’s final voyage, it was leaning while being loaded in San Juan, Puerto Rico. When El Faro departed Jacksonville, there was no request to secure the cargo knowing it was heading for severe weather. The predictions from the National Hurricane Center were off about 500 nautical miles. Quite unexpectedly, the storm veered south and gathered strength making it difficult to “shoot under it” as the captain had planned. The storm track, determined by the National Weather Service, was six hours old by the time El Faro received the information.

The owner of the cargo ship, Tote Services Inc. pointed to the captain’s responsibility for any actions at sea. But one National Transportation Safety Board investigator says the company’s leadership may also play a part.  Companies are often known to be unrelenting in keeping to a profitable schedule. During the hearings, the professional ability of Captain Michael Davidson was repeated often.

Twenty-one of the 33 crew members have now settled claims with Tote Services Inc for $500,000.  The Florida Times Union reports the three claims filed in federal district court include $500,000 for pre-death pain and suffering plus, “an agreed upon amount for pecuniary (economic losses) damages covering the estate’s full economic loss.” The three men were from Jacksonville.

Another hearing has yet to be scheduled when the contents of the black–box recorder will be revealed.

Since we have just entered hurricane season, it is important for readers to understand what their policies cover and typically do not cover. Please visit the Hurricane Section of the Farah & Farah website to learn more. Our Maritime Section of the website covers areas such as personal injury at sea, cruise ship accidents, incidents on pleasure watercraft and Jones Act violations, which covers accidents at sea as well as harbor worker injuries. #

Sources:  http://abcnews.go.com/US/wireStory/el-faro-crewmember-families-settle-vessel-owner-39530049;  http://jacksonville.com/news/metro/2016-01-25/story/families-el-faro-crew-settle-tote ; https://farahandfarah.com/hurricane-insurance-dispute.html;

Washington, California AGs Sue J&J Over Defective Mesh Implants and Fraudulent Marketing

In 2012, a Washington state resident, who had been implanted with pelvic mesh made by Johnson & Johnson, filed a complaint with her state Attorney General’s office.

Now, four years later, she is seeing that complaint come to life.  The Consumer Protection Division of the Washington AG’s office has just announced it is filing a lawsuit against Johnson & Johnson for deceiving the public and fraudulently marketing its polypropylene pelvic mesh to women and their doctors. AG Bob Ferguson was joined by California’s AG Kamala Harris, who also filed a deceptive trade practices lawsuit against J&J on the same day.  The lawsuits allege J&J deceived the public and violated the state’s Consumer Protection Act.  Fines imposed could amount to $2,000 per civil penalty per violation. 

The lawsuits allege Johnson & Johnson, a New Jersey-based company, failed to warn patients about the risks of pelvic mesh implants. As a result, thousands of women live with chronic pain, an inability to have sex, repeated infections and in some cases nerve damage that makes them unable to sit or stand for any period of time.

“It’s difficult to put into words the horrific injuries and pain many women are still suffering as a result of Johnson & Johnson’s deception,” Ferguson said. “They believed they were making informed medical decisions, but that was impossible when Johnson & Johnson was spreading inaccurate information about its products’ risks, essentially duping doctors into using their own patients as clinical trials. This is an unacceptable way of doing business, and I will hold the company accountable.”

In Washington, its estimated 12,000 women were implanted with J&J’s pelvic mesh while California estimates there may be at least 42,000 women who qualify.  During the years 2008 to 2014, J&J sold nearly 790,000 mesh implants. Johnson & Johnson issued a statement that the lawsuits are unjustified.

California and Washington State are not alone. So far 46 states and the District of Columbia are investigating the company’s practices.  If other states also file actions, the damage could put a serious dent in J&J’s $70 billion annual income.

So far there are 93,000 lawsuits consolidated in federal court in West Virginia against seven mesh makers and thousands others are filed in state courts in the U.S.  Outside the U.S., pelvic mesh litigation, from Israel to Scotland, allege thousands of life-altering complications. Johnson & Johnson is facing more lawsuits than any of six other manufacturers and has vowed to keep fighting injured women in court.

Most mesh products used to treat incontinence remain on the market and are still being used and supported by the medical community.  Larger mesh implants to treat pelvic organ prolapse (POP) will be reclassified by the FDA as high-risk or class III.  Manufacturers have 30 months to prove they are safe or take POP mesh off the market. 

Proof of safety would have been a good move before marketing any of these meshes, but unfortunately the FDA does not require that of manufacturers. #

Sources:  http://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Home/News/Press_Releases/2015/Complaint%20FINAL.pdf;  http://www.meshmedicaldevicenewsdesk.com/jj-facing-deceptive-marketing-lawsuits-washington-california/http://www.reuters.com/article/us-johnson-johnson-mesh-lawsuit-idUSKCN0YF2LChttp://www.wsj.com/articles/washington-california-sue-johnson-johnson-over-vaginal-mesh-implants-1464135609https://farahandfarah.com/product-liability/mesh-manufacturers.html

Preventable Medical Errors Third Leading Cause of Death in U.S.

A study from Johns Hopkins and published in the May edition of the British Medical Journal, says medical mistakes are the third leading cause of death in the US right behind heart disease and cancer.

At least 251,454 deaths every year are blamed on medical errors which can include a failure to treat, delayed medical attention, medication errors or surgical errors. The numbers may be actually higher because nursing home deaths and deaths at home attended by a medical professional are not counted in this study.

This is a greater number than a 1999 Institute of Medicine study that estimates upward of 44,000 to 98,000 die from medical errors at a cost of $17 to $29 billion dollars to hospitals.

The reason numbers may be all over the place can be blamed on the death certificate. Rather than an exact cause of death, the certificate relies on established codes, which are used for billing purposes. A cause of death from an infection related to hernia mesh, for example, is not captured yet by a code, so would not be recorded as such.  In fact, there is no space on a death certificate for medical errors at all.

What is a medical error?  Researchers from Johns Hopkins define it as an act of omission or commission or one that does not achieve the intended outcome. It could be the failure of an action, the use of a wrong plan in achieving a goal, or deviating from established medical care.  Medical errors can occur one-on-one or system wide. The bottom line — these were preventable errors.

The BMJ gives an example of an error that would go unreported. A patient, who had a successful organ transplant, returns to the hospital to undergo testing. During the test, the doctor accidentally cuts her liver, but does not realize it, causing internal bleeding. The patient returns home only to go into cardiac arrest. She dies. The cut led to her death but the death certificate blames cardiovascular issues.

Because of examples like this, it is estimated the actual number of preventable medical errors is much higher than suspected.

Determining medical errors is not a priority because it is not in the self interest of the hospital, at least in the short term. Investing in medical equipment with barcodes for example, might help determine at the end of the surgery if all equipment is accounted for, as one example.

Farah & Farah attorneys are ready to talk to you about your hospital negligence, hospital infection or hospital malpractice injuries.  #

Sources:  http://www.cnn.com/2016/05/03/health/medical-error-a-leading-cause-of-death/http://www.bmj.com/content/353/bmj.i2139;   https://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/1999/To-Err-is-Human/To%20Err%20is%20Human%201999%20%20report%20brief.pdf;  https://farahandfarah.com/product-liability/hernia-repair-mesh.htmlhttps://farahandfarah.com/medical-malpractice/hospital-malpractice.html

Still Ahead

Prince Death Confirmed — Fentanyl and Percocet Overdose
Opioid overdoses are not uncommon and one reason there is now a new national legislation to make doctors more responsible before they prescribe.

Motorcycle Crashes Help Drive Up Highway Deaths in 2015
It was the worst death toll in seven years, 5010 bikers lost their lives on the nation’s highways.

Public Citizen Tracks 25 Years of Pharma Industry Criminal and Civil Penalties
The consumer group finds from 1991 through 2015, Big Pharma settled 373 cases of wrong doing against the federal and state government for a total of $35.7 billion. Pharmaceutical companies were fined for drug pricing fraud against Medicaid and Medicare, as well as the off-label promotion of drugs. Whistleblower or Qui tam cases were responsible for 81 of 140 federal settlements for $22.8 billion. GlaxoSmithKline and Pfizer paid 31 settlements each for $7.9 billion and $3.9 billion.
Source: http://www.citizen.org/documents/2311.pdf

CDC Study — Play yards lead to traumatic head injuries
Source: http://pediatrics.aappublications.org/content/early/2016/04/28/peds.2015-2721;  

Farm Animals and Antibiotic Resistance Threat Warning
As frightening as it sounds a health regulator in the UK says millions will die from antimicrobial resistance to antibiotics and by 2050 it will represent a greater threat to health than cancer.
Source: http://www.theguardian.com/society/2016/apr/14/antimicrobial-resistance-greater-threat-cancer-2050-george-osborne?CMP=share_btn_fb#_=_

Fair Warning- Child Safety Seat regulations flawed
Weston Kingsley died in February 2014 when his car seat when his father’s minivan seat collapsed backward crushing the boy during a rear collision.  The auto industry is aware many auto seats can fail in these collisions.
Source: http://www.fairwarning.org/2016/03/flawed-seats/

Plan to protect workers from Silica dust
Occupational Safety and Health Administration has new standards to protect workers from silica dust which comes from pulverized stone.
Source: http://www.fairwarning.org/2016/03/osha-silica-dust-exposure/

Actos raises Bladder Cancer Risk?
A British Medical Journal study on the diabetes drug Actos links it to an increase in the risk of bladder cancer.
Source:  http://www.philly.com/philly/health/topics/HealthDay709521_20160331_More_Evidence_Diabetes_Drug_Actos_Raises_Bladder_Cancer_Risk_a_Bit.html

Can One Drive and Read a Distracting Billboard?
A roadway researcher says billboards that contain digital information lead to distracted driving.
Source: http://www.fairwarning.org/2016/03/digital-billboards/

Third Child Dies in Dresser Tip-Over

Second Toxic Talc Award for Plaintiffs $55 Million

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