DePuy Hip Recall

DePuy Orthapedics recently recalled its ASR XL Acetabular Head System and DePuy ASR Hip Resurfacing System due to a defect thats causes severe pain, grinding, popping and eventual revision surgery. DePuy recalled the product on August 24, 2010, acknowledging that its metal-on-metal artificial hip device is prone to fail within a few years after it is implanted. DePuy research indicates that approximately 12% of patients who received the defective product needed to have a second hip replacement surgery. It appears that close to 93,000 hip replacements are affected by the recall.

DePuy itself does not have a list of patients that received the defective hip which makes it difficult to reach potential users. Instead, those who received the defective hips are receiving letters from their surgeons informing them of the recall. The best available evidence suggests that the “metal-on-metal” product, which causes metal shavings to release into the body and cause significant pain and possibly blood poisoning. In addition, the metal grinding causes the socket to become dislogdged from the hip, causing significant pain alleviated only by a follow-up surgery. It doesn’t appear that DePuy will have any strong defense to the claims, but rest assured that the claims process will be difficult, lengthy and time consuming. It seems as if DePuy is suggesting to those affected that it will pay for revision surgery and associated medical bills, but that certainly does not mean DePuy is willing to compensate patients for pain and suffering, both present and future.

The Warshafsky Law Firm is currently handling several DePuy products liability claims and intends to seek maximum compensation for those affected. If you or anyone you know has received a letter from your surgeon regarding the recall, please feel free to call the Warshafsky Law Firm regarding your possible claim.

UPDATE - Malpractice Leads to Unusual Writ of Mandamus

The Warshafsky Law Firm recently filed a very unusual Writ of Mandamus to determine why the Medical Examining Board has not taken action against Dr. Cully White, a D.O based in Milwaukee. To recap, plaintiff Kenneth Plants alleged that Dr. White operated on the wrong side of his back, causing severe and permanent debilitating injuries. The case settled in the Summer of 2009 for 2.9 million. A Writ of Mandamus was filed to determine why, after being provided with ALL the medical records and pertinent testimony, the Medical Examining Board has failed to take any action against Dr. White.

Just this week, Milwaukee County Judge Thomas Cooper signed an Order to Show Cause, which requires Defendant Kelly Sankbiel to appear in court and provide testimony as to why the Medical Board should not provide the petitioner with a report regarding the Board's investigation of Dr. White, and to explain what steps the Board has taken in furtherance of said report, should it not exist.

Also Ordered to appear is Dr. Gene Musser, Chairman of the Wisconsin Medical Examining Board. He has been ordered to explain the details of the investigation by the Board, and what information the Board still needs to complete its investigation, should it request additional information.

The Order signed by Judge Cooper is a step further in the plaintiffs' ultimate goal - to figure out why, after receiving every piece of documentation if may need to discipline Dr. White, the Board has not yet taken action against Dr. White and failed to respond to the Warshafsky Law Firm's request for information. The testimony of Musser and Sankbiel will hopefully shed light on how doctors in Wisconsin are disciplined, and how long it takes determine appropriate discipline.

The show cause motion is set for August 13, beginning at 10:30 A.M. The hearing is open to the public.

12 Year Old Girl Injured at Wisconsin Dells

The Jounal Sentinel is reporting that a 12 year old girl was injured when safety nets for a thrill ride at Extreme World failed to break her 40-foot fall to the ground. The incident occurred at Extreme World, a one-of-a-kind thrill seeking venture in Wisconsin Dells offering bungee jumping, go-karts, and an ejection seat ride.

The accident appears to have been caused by several unfortunate events, 1) the girl's harness probably failed; and 2) the ride's safety net failed as the last line of defense. Authorities are likely to conduct their investigation to determine whether any criminal charges should be filed. Likewise, OHSA will probably conduct their own investigation because the accident occurred at a workplace. Extreme World likely also faces severe civil liability if their employees are determined to have been reckless or negligent in maintaining the ride. This determination will necessarily be made by qualified personal injury attorneys and private investigators.

Personal injury lawsuits involving entities in Wisconsin Dells often present challenges in finding the proper party to sue. Typically, companies in the Dells operate under many different umbrellas and sub-corporations - usually all very similar on paper, but yet different corporate entities. It becomes important to identify the proper entity early on so negotiations can begin immediately, and evidence can be preserved.

If you or someone you know has been injured, the Warshafsky Law Firm offers free consultations and at-home visits. Call 800-728-4970 today to speak with a Warshafsky lawyer.

Warshafsky Files Mandamus to Protect Public

As the Milwaukee Journal Sentinel first reported, a very unusual writ of mandamus has been filed against the Department of Licensing and Regulation involving Dr. Cully White of Milwaukee. A writ of mandamus (latin for “we command”) is used in situations where the government has a clear duty to act but has not. While unusual and rare in fiings, it is most commonly used when government agencies fail to respond to Freedom of Information Act requests. This writ of mandamus seeks investigative materials relative to alleged malpractice committed by a prominent local surgeon.

In 2004 Ken Plants filed a medical malpractice action against Dr. Cully White alleging Dr. White operated on the wrong side of his spine, causing severe and permanent nerve damage. The lawsuit also alleges Dr. White billed for a surgery ($7000) he did not perform and subsequently lied to Ken Plants about the surgery. The lawsuit settled in August 2009 for 2.9 million. Ken Plants refused a confidentiality clause that would have made the terms of the settlement confidential.

The writ targets the Medical Examing Board, which has the responsibility to “investigate allegations of unprofessional conduct in a reasonable time.” Despite hand delivering every possible piece of evidence to the Board, the Board has not provided Plants or his attorney with investigation materials, or even if the investigation has begun. The writ demands the Board do the following: 1) provide the petitioner with the Board’s report generated in this matter; 2) if not report has not been generated, an update on actions in furtherance of a report; or 3) how the Board intends to complete its report and when.

This Writ follows an interview with ABC 12 last Fall where the Board admitted that it takes 4, 5, or even 6 years for the Board to take any action following settlement or trial involving medical malpractice. A typical medical malpractice case takes about 3 years to settle or go to trial. It then takes 4-6 years before the Board takes any action against the doctor. Essentially, it could take upwards of 10 years before a doctor is disciplined by the State of acts of negligence. Prospective patients have absoulutely no way of knowing a doctor they are choosing is being investigated during that 10 year period. The writ appers to force the Board to provide greater transparency and actually carry out the Wisconsin statutes aimed at protecting the citizens of Wisconsin.

Injured Inmate May Collect From State

A recent Wisconsin Supreme Court decision correctly ruled that an inmate injured due the negligence of another inmate may collect damages. In a 4-3 decision, the Supreme Court upheld the appellate court and trial court in finding that "governmental immunity" did not extend to an inmate who disregarded the most basic rules dismantling horse stalls at Wisconsin State Fair Park.

The case delivers a blow to the oft-used and ever-extending scope of governmental immunity. In general, government employees are immune from negligence lawsuits if there actions were done in course and scope of their employment. However, this is not true if the act causing the negligence was "ministerial" in nature; meaning, the task was so specific and concrete that it does not require the use of discretion. Immunity also does not extend when the government employee acts in the facts of a "known danger".

Perhaps this decision will force governmental agencies and their attorneys to more readily consider settlement of smaller claims without protracted litigation. Whatever the effect, the Court seemingly made it clear that exceptions to governmental immunity are alive and well, and that cases against governmental entities may be more viable in the future.

If you or anyone you know has questions regarding an injury caused by a governmental agency, please contact the Warshafsky Law Firm to discuss your rights.

MTD Snowblower Recall

Back in January, I posted my surprise that MTD snowthrowers were still exploding and causing serious personal injuries to consumers nearly 4 years after the product was recalled by the CPSC. I was not surprised that the product was still exploding, I was surprised that the product was still being used by consumers despite several measures taken by MTD to remove the defective product from commerce. In the past month, I have been contacted by two attorneys nearly 750 miles apart with “fresh” MTD explosions and injuries.

These MTD products liability claims are very unique in that the injuries are usually limited to broken hands and fingers. The limited damages make these claims very difficult, if not outright cost prohibitive, for a firm to handle. For example, suppose the claim is worth around $30,000. It may cost upwards of $15,000 to hire a plastics expert to provide a favorable opinion. After a fee and recouping costs, the claim is hardly worth pursuing for the client.

The Warshafsky Law Firm has handled nearly a dozen claims against MTD and is currently working on at least 5 others, most from referring attorneys. Bunching these MTD claims together to spread-out the costs has been effective in maximizing recovery for the client. As the snow melts around the country, these claims may melt away as well. But history as shown us that these products are still out in commerce and are still exploding at alarming rates. If you or anyone you know has been injured by MTD products, Warshafsky Law Firm is interested in hearing about your experience.

Learning from the past: Should the Mayor use security detail at public events?

This week, Anthony J. Peters plead not guilty by reason of mental defect to charges that he beat Milwaukee Mayor Tom Barrett. After the recent attack on Barrett outside of the Wisconsin State Fair, questions have been raised as to why the Mayor did not have a security detail with him. While this question fails to consider the fact that the Mayor's brave and heroic acts likely prevented a serious or even life-threatening injury to the assailant's one-year-old child and that child's grandmother, it does bring up the issue of whether public officials in a city as large as Milwaukee should be required to take a security detail with them to public events or any event where there could be potential security risks. In this case, we have all since learned that the City of Milwaukee's policy is to have security available to the Mayor but that he is not required to use that security detail at all times.

In a time where there are increased concerns about our nation’s own homeland security, the question has no good answer as we all try to strike balance in our lives between safety and personal freedom. In this case, the Mayor has obviously taken an oath to serve the residents of this community to the best of his abilities, and such service is compromised when there is a threat of serious or fatal injury. This particular case is unique in that it was not a targeted attack on the Mayor but instead a random act of violence by an individual with an ostensible host of issues. Can we ever completely protect our high-level civil servants from random acts of violence? Unfortunately, the answer is probably not but this doesn't get past the point that in this particular case, Milwaukee could have lost its Mayor. While his life is no more valuable than that of any other citizen, he holds a position that some believe deserves a certain level of security.

What are your thoughts? Should the Mayor of a city the size of Milwaukee be required to have a security detail for all public appearances?

Aspergillosis Dangers at Hospital Construction Sites

Aspergillosis is a mold caused by decaying leaves, wood and other natural sources. The mold is common in everyday air and usually does not cause problems in healthy human beings. Aspergillosis is often referred to as Aspergillus and a variety of other common mold species.

While usually harmless, Aspergillus is extremely dangerous to those with compromised immune systems, including the elderly, sick, children and those suffering from asthmatic conditions. Aspergillus is found in large quantities at construction sites where dust and debris are disturbed and toxics are released into the air. Construction sites near the aforementioned susceptible people become breeding grounds for illness and death.

The Warshafsky Firm is unaware of any current lawsuits involving injured Wisconsin persons suffering from Aspergillosis or Aspergillus related illnesses. However, with major construction on-going at Columbia St. Marys and several Aurora sites, the probability of Aspergillosis or Aspergillus related illnesses substantially increases. If you or anyone you know has suffered a respiratory illness while at any area Hospital undergoing construction, please contact the Warshafsky Law Firm to discuss your rights.

We Energies Coal Dust Explosion Liability

At first blush, the 6 workers injured at the We Energies Oak Creek facility would be limited to Workers Compensation to collect for their injuries. However, often times workplace injuries are a result of negligence by so-called 3rd parties, meaning not the injured or the employer, but a 3rd party responsible for the injuries.

The We Energies explosion involves Waukesha based ThyssenKrupp Safway, a subcontractor providing scaffolding services. It also involves United States Fire Protection, a New Berlin firm that provides fire protection services. Injured workers may have possible claims against both companies depending on the exact contractor-subcontractor arrangements.

Coal dust explosions are often the result of negligent 3rd parties that are unfamiliar with the inherent dangers of coal dust. Everybody surrounding the We Energies site must use reasonable care in handling coal dust, and must also use reasonable care to warn of the risk associated of working around coal dust. What is "reasonable care" depends on many different factors, including opinions held by workplace experts.

The Warshafsky Law Firm has represented several workers over the past 50 years injured by coal dust explosions, recovering large sums of money to compensate for their critical injuries.

Chicago Dogs Bite Bite and Bite

In the past week, three young children in the Chicagoland area have died from Rottweiler attacks. The Chicago Tribune provides details into the latest victim, 4 year old Alex Angulo of Chicago:

A sign that reads "Beware of the Dog" hangs on a fence outside a Southwest
Side house where 4-year-old Alex Angulo was mauled to death by a Rottweiler on
Sunday. A neighbor said the Rottweiler sometimes acted aggressively and was
"kind of scary."

Just last week, two sisters, ages 5 and 10, were mauled by a Rottweiler at their mother's Joliet home. Those girls survived. Rottweilers aren't the most dangerous breed (Pit Bulls earn that dubious crown), but they do come in second causing 63 deaths from 1982 to 2007. Fortunately, Wisconsin dog bite deaths are few and far between, but do happen. More frequently, dogs maul or injure Wisconsinites, usually small children, without causing death.

Wisconsin Statute 174.02 provides harsh penalties for dog owners whose dogs bite and injure. Specifically, dog owners are strictly liable for the injuries and bites caused by their dogs. Wisconsin courts have construed this statute heavily in favor of victims, expanding the strict liability to injuries caused by the fear instilled by dogs, as well as injuries caused by scratches and other bodily contact. The Statute also imposes double damages for those dogs who have a propensity for violence, or whose owners are otherwise on notice of the dog's propensity to injure.
Posted by: Eric Knobloch

UnitedHealth Group Ripping Off Insureds

"What in the world is this charge for?" or "Why am I being charged that amount instead of this amount?" or more importantly "Why isnt my health insurer paying for this procedure?" All frequently asked questions for insurance companies customer care representatives.

New York Attorney General Andrew Cuomo may have your answer:

The New York attorney general’s office launched an investigation after
receiving hundreds of complaints about Oxford Insurance and its parent company,
UnitedHealth Group, which claims to rely on “independent research from across
the health care industry” to determine reimbursement rates. In actuality though,
it relies on Ingenix, a research firm owned by UnitedHealth Group.

UnitedHealth Group is the parent company to many smaller companies, including United Health Care and Ingenix, both of which have healthy market shares in Wisconsin. Disputing the "usual and customary, or reasonable charge" is par for the course with all insurance companies. But using an "in-house research firm" touted as "independant research from across the health care industry" to short change insureds is nothing short of astounding.

The $50 million dollar slap on United's wrist will be used to create a non-profit to determine reimbursement rates for its patients. (Which begs the question, shouldnt this have already been done with premiums rather than punitive awards for ripping off customers for years and years?) So, consumers are unlikely to see a dime of the award. Does UnitedHealth Group's duty of good faith to its insured warrant a reimbursement without any action by the insured????

Lawyers in Wisconsin are well aware of Insurer's using Ingenix and their most recent tactic of reducing the "reasonable value" of charges submitted by hospitals, doctors, clinics, etc. In its simpliest terms, reducing the "reasonable value" ultimately devalues the amount of medical bills an injured party may recover, which in turn lowers the amount the injured may receive from an at-fault party. Lawyers representing injured individuals should be leary of any numbers Ingenix comes up with and should inquire with the Ingenix representative as to its methods of calculations.

Auto Accident Deaths

A recent article in the Kenosha News provides harsh statistics about the number of Wisconsin auto accident deaths. Wisconsin had 735 auto accident deaths in 2007, while 2008 only recorded 587. More locally, Kenosha County had the 3rd most traffic deaths in the State, right behind Dane and Milwaukee Counties. Staggering is Kenosha's sudden rise in auto fatalities while the rest of the State sees moderate declines:

Kenosha County finished the year ranked third in the state for traffic
deaths behind Dane and Milwaukee counties. With 37 and 48 traffic deaths,
respectively, those counties are well below their totals for 2007, however.
Waukesha County was just behind Kenosha County with 27 traffic deaths.

Many factors may play a part in the sudden Kenosha County increase - increased traffic from Kenosha-Chicago commuters, harsh winters, heavy alcohol consumption, lack of seat-belt use, etc. Equally eye-opening is the number of teenagers and young adults falling victim to car accidents, perhaps suggesting inexperienced drivers or distractions within the car:

Broken down into age ranges, traffic crashes killed nine people between the ages
of 16 and 24, while claiming five people in their 30s. Also, more males (15)
died in traffic crashes this year than females (13).

When a loved one is injured or dies in an car accident, it is crucial for the family to obtain immediate representation to protect the injured party's interests. Witness statements need to be taken, the police department needs to be shadowed in order for a full investigation to be done, and private investigators need to take measurements of any tiremarks, scene photos and vehicle photos. All this should be done within the first 24 hours before the insurance company representatives begin their investigation. Injured parties that do not seek representation face an up-hill battle to receive compensation that 9 times out of 10 does not fully compensate them for their injuries.

Automobile insurance coverage

Automobile accidents are unfortunately a common occurrence in our mobile society. Frequently, they result in serious injuries or death. Because of the potential for such severe consequences, it's important to obtain sufficient automobile insurance coverage to protect ourselves and our families. Nowadays, the minimum level of insurance available in Wisconsin of $25,000 can fall far short of providing the protection each of us needs.

Many people assume that increasing their liability insurance means a significant hike in the premiums, when in fact that is not always the case. For example, according to one of the largest insurance companies in the Midwest, increasing a policy from limits of $100,000/300,000 (that is, a limit of $100,000 per person, $300,000 per accident) to $250,000/500,000, on average, involves an increase in premiums that can be less than $30 semi-annually. This is a relatively small price to pay for a significant amount of additional coverage.

The other consideration with respect to auto insurance involves uninsured (UM) and underinsured (UIM) coverage. UM protects us when a driver that causes injury does not have a policy of insurance. UIM kicks in when another driver has limits that will not fully cover the injuries involved. The semi-annual premium increase of less than $30 in the above example would also include raising limits of UM and UIM to $250,000. Always remember to ask about UM and UIM when discussing coverage with an insurance agent. This coverage provides an important and relatively inexpensive method of insuring ourselves for injuries that we might sustain in an automobile collision.