Kentucky Injury Attorney Blog

Woman Sues Kentucky's Norton Hospital and Medtronic for Medical Malpractice

2012-05-17T17:06:45Z

Norton Hospital is located in Louisville, Kentucky and serves thousands of Kentucky residents every year. Medtronic is a large medical device company located in Fridley, Minnesota. What these two companies have in common is a medical malpractice lawsuit that has been filed against them.

A Louisville, Kentucky woman had surgery on her spine in 2006 at Norton Hospital. The hospital used a product from Medtronic called Infuse. Infuse is a bone-graft device used in certain spinal surgeries. A liquid bone protein is put on a sponge in a little crate between vertebrae. The liquid then solidifies into bone. The patient was having spine surgery, but not the type that Infuse has been approved for by the Food and Drug Administration (FDA). Surgeons at the hospital used it in her procedure anyway.
Unfortunately, as has been the situation in other cases, the bone continued to grow into her nerves, causing damage that has resulted in debilitating pain. She now has to stay in bed for extended periods of time and has trouble doing simple everyday tasks.

When a product is promoted and used in a way that has not been approved by the FDA, it is called "off-label" use, since what the medical professional is using it for would not actually be printed on the label of the medication or medical device. Oftentimes, medical professionals successfully use off-label treatments with the patient's consent. Other times it may lead to a dangerous treatment. However, companies such as Medtronic are not allowed to promote the product for off-label use. They can be fined millions of dollars if it is determined that this illegal activity has occurred. Unfortunately, to a multi-billion dollar company that could make billions on off-label use of one drug, the risk of investigation and fines may seem worthwhile. The off-label marketing can occur in many ways, including providing the product free to hospitals and medical offices or giving price breaks on other products to medical professionals that use a certain product off-label.

]]> The Louisville woman's lawsuit contends that neither she nor her husband consented to the hospital using Infuse off-label during her surgery and that Medtronic aggressively marketed the off-label use of the product. While a federal investigation into Medtronic regarding Infuse has been closed, that does not mean this case is over. Several civil lawsuits have been filed against Medtronic for this product and the Kentucky personal injury attorney handling this case says they have spoken to many people who have been affected by this product that may be interested in joining the lawsuit.

If you suffer from a condition caused by off-label use by a medical professional without your consent, please contact a Kentucky medical malpractice attorney to discuss your situation. The law firm of Miller & Falkner specializes in personal injury matters including medical malpractice, car accident injuries, nursing home abuse, product recalls, and premises liability cases.

Sources:

Govt. closes investigation of Medtronic over bone graft product; Minnesota Public Radio; Martin Moylan; May 16, 2012

Norton Hospital, Medtronic sued over spinal surgery; The Courier-Journal; Laura Ungar; May 10, 2012

Passing Other Cars in Kentucky can be Dangerous

2012-05-09T16:10:14Z

It can be frustrating, being stuck behind someone driving slower than you want to go, especially if they are going below the speed limit or you are running late. If this occurs on a road with four lanes or more, it may seem fairly easy to move to the left lane and pass the person. Passing on a two-lane road is inherently more challenging. But both scenarios can be dangerous, as two Kentucky drivers discovered recently.

On Saturday, May 5, 2012, two teens were driving on U.S. 68, which is a two-lane road, near Campbellsville, Kentucky. The driver decided to pass the car ahead of them and pulled into the left-hand lane. Unfortunately, a car was coming from the other direction and the two collided head-on, resulting in a deadly car accident. Both cars rolled over and the teens tragically lost their lives. The driver of the other vehicle was taken to the hospital with injuries and was released the next day.

In another accident on Sunday of the same weekend, a driver again attempted to pass the car in front of him. This time the accident occurred on KY 213 in Morehead, Kentucky. When the passing car moved back into the lane in front of the other car, it clipped the front bumper. Both drivers appear to have lost control, and this car wreck injured all three people in the cars, including one critically.

These two accidents highlight the importance of using caution when passing other cars. Teendriving.com, a website started by a teen driver who was concerned about the number of accidents involving his classmates, provides the following tips about passing to drivers:

Don't Pass:

When there is a solid yellow line on your side

When you're uncertain there is enough time or space

When you can't see around a curve or over a hill

When behind multiple cars and passing one car doesn't really make any difference

On two lane roads, don't pass tractors or trucks or others you can't see around

In hazardous weather conditions

When another car is coming toward you in the opposite lane

When a car is passing you

When there is construction or road work

When the car in front of you is going the maximum speed limit

When on narrow roads, on bridges, or in tunnels

When you are unfamiliar with the car you are driving and its capabilities

Don't play leap frog by passing a friend that just passed you

]]> Passing with Caution:

Only pass if there's a dotted line on your side.

Check that the passing lane is clear.

Make sure you have plenty of space to pass safely.

Signal before you pass.

Pass at least ten miles per hour faster than the car you're passing while not exceeding the speed limit.

Make sure you have cleared the passed car with enough space before pulling back into your lane.

These tips will help keep drivers of all ages safe when passing other cars. Keep in mind that being on time for an appointment or getting ahead of someone who is driving too slow is not worth risking your life or the lives of those around you. Please be careful when passing another vehicle.

If you are involved in a car accident caused by unsuccessful passing, or any other type of accident, a Kentucky car accident attorney can help you sort through the facts, determine what claims need to filed, and decide whether any legal action such as a personal injury or wrongful death lawsuit needs to be taken. Charles Miller and Rheanne Falkner are experienced Kentucky personal injury attorneys who have helped numerous victims and their families through this difficult situation.

Sources:

2 Campbellsville teens killed in head-on collision; WLKY; Marissa Alter; May 7, 2012

Two-vehicle accident in Powell County Kentucky leaves one person critically injured; WOWK; Tiersa Davis; May 6, 2012

As Personal Injury Lawsuits in Indiana Stage Collapse Continue, New Regulations Take Effect

2012-05-06T11:57:11Z

The 2011 tragic stage collapse at the Indiana State Fair in Indianapolis continues to affect numerous people - those who lost loved ones, those who were injured, and those who may or may not have been at least partially responsible for the accident. In an attempt to figure out who other than Mother Nature was responsible, the State of Indiana contracted with two different firms, one to study the stage and the other to review what preparations were made in case of an emergency. The firms were also asked to give recommendations on how the state could prevent tragedies like this at future events.

According to one report, the fair board and Indiana police approached Sugarland, the band waiting to perform, about postponing the show more than once. Each time they asked, they were told the band did not want to postpone the show. However, during a deposition, one of the band members said she was never approached by anyone about cancelling or postponing the show, so attorneys are now looking at the band's touring manager as the one who may have put the concertgoers' lives at risk. The same report also faulted the fair board for not having a clear safety plan or chain of command in case of an emergency.

The other report found fault with the stage design. It was not built to withstand the high winds that brought down the stage rigging on the crowd. Over $80,000 in fines have been issued by the Indiana Department of Labor, including about $63,000 against Mid-America Sound, which built the stage for the fair. As a result of this accident, the Indiana Fire Prevention and Building Safety Commission passed new regulations regarding temporary stages for outdoor events in Indiana at the beginning of May this year. Larger venues will be required to have their stages and rigging plans reviewed by an engineer and will have to provide documented emergency plans. Those smaller fairs or festivals that most likely could not afford the additional cost of an engineer's review would be required to leave additional space between the stage and the crowd. An eight-foot area between the between the crowd and the tallest height of the rigging would be necessary to avoid being in violation of the regulations.

]]> Wrongful death and personal injury lawsuits have been filed against many of the people and groups mentioned above. Until it becomes more clear who or what was ultimately at fault for the accident, the victims and their families are covering all of their bases. In the meantime, some of those who were injured continue to recuperate and others who lost friends or loved ones attempt to heal emotionally. If you have been injured or have lost a loved one due to negligence, an experienced Kentucky or Indiana personal injury attorney can help you sort through the details and determine what claims or lawsuits need to be filed. The attorneys at Miller & Falkner have helped numerous clients throughout Kentucky and Indiana with their personal injury and wrongful death cases.

Sources:

Lawyers eyeing Sugarland tour manager; The Courier-Journal; Tom Coyne; April 16, 2012

Reports: Stage in Indiana Fair Collapse Not Up to Code; CNN; April 13, 2012

New outdoor stage rigging regulations issued in wake of stage collapse; WANE; May 4, 2012

Is Church Partially Responsible for Car Accident Death of Kentucky Teen?

2012-04-23T17:47:05Z

Most Kentuckians are familiar with the tragic story of the death of 13-year-old Jamie Mitchell. On June 6, 2009, he was on a camping trip with the youth minister of his church. The youth minister, Derek Coulter, allowed Jamie to drive his SUV. Jamie lost control of the vehicle and crashed. Derek Coulter initially tried to cover up the actual cause of the car accident by telling everyone from police officers to the mourners at Jamie's funeral that he was driving and swerved to avoid hitting a deer. He also said that Jamie was wearing his seatbelt at the time of the car crash, but investigators could find no marks on his body to show that a seatbelt was on him. The truth was finally revealed by the 15-year-old passenger from the accident, who initially was afraid to say anything because Coulter had told them they would both get in trouble.

After the truth came out, Derek Coulter was arrested and charged with reckless homicide and sentenced to five years in prison. Jamie's mother is still shocked and heartbroken about her son's death and the lies Derek Coulter, who is her cousin, told her. "[H]e told me the whole time on the scene he held my son's hand until he let go and I don't even know if that's true" she said.

In the latest chapter of this tragedy, Jamie's parents have filed a civil wrongful death lawsuit against Coulter and the Big Springs Assembly of God Church in Bloomfield Kentucky, the church that employed Coulter at the time of the accident. Lawyers for both sides of the case have differing views as to whether or not the church could be held responsible for the accident. The attorney for the church claims that the camping trip was not a church-sponsored event, so effectively, Coulter was on his day off when the accident occurred. He also states that the function was not on the church schedule and did not happen on the grounds of the church, but rather on a farm.

Attorneys for the plaintiff have several arguments to counter the church attorney's statements. First, they have witnesses that will state that Coulter let multiple underage, unlicensed teens drive his SUV, both in the parking lot of the church and on the way to church functions. They also feel they can prove the campout was a church event. They state that all 10 children who attended were from the church; Coulter's wife told the kids they couldn't swear because it was a church event; Coulter himself referred to the campout as a church outing during the victim's eulogy; and the farm owner only offered to let Coulter and the kids camp on his property because he was approached through the church about it and was under the impression it was a church event.

]]> If it is proven that the camping trip was a church function, the church may be found at least partially liable because it is possible for employers to be held responsible for their employees' actions if a crime is committed or an accident occurs while the employee is working. The church may also share some of the responsibility if the court determines that it should have known that Coulter's actions may have been dangerous, i.e. letting unlicensed teens drive his truck.

Whatever the outcome, the fact remains that one man had a terrible lapse in judgment that ended the life of a teen, negatively changed his life, and altered the life of the church congregation of which he was a member. While a financial award from a court will not change any of the above facts, it may at least bring some closure to the victim's family and cause the defendants to review their actions and hopefully not repeat whatever mistakes were made to cause this tragedy. If you have additional questions about this case or need legal advice regarding another matter, please contact Kentucky personal injury attorneys Charles Miller or Rheanne Falkner.

Sources:

Fatal crash controversy has fingers pointing at youth minister; wave3.com; Connie Leonard; July 29, 2009

Kentucky church sued over youth minister's deadly mistake; Courier-Journal; Andrew Wolfson; April 22, 2012

Why Those Serving in the Military in Kentucky Cannot File Medical Malpractice Lawsuits

2012-04-20T14:03:58Z

Much of the discussion regarding medical malpractice today revolves around the "caps" being put on damages awards in certain states. People argue for and against these caps based largely on whether they are members of the medical profession or have been injured or known someone who was injured by a doctor, nurse, or other medical person.

One segment of the population is not affected by these caps because they are not allowed to file medical malpractice claims when they are injured by someone in a medical field. These are the same people who protect our freedom both in the U.S. and abroad. They are the members of the U.S. military.

Back in the 1950s, a soldier was killed in a barracks fire. His family sued the government for negligence that led to his wrongful death. The Supreme Court determined that the federal government could not be held liable for his death because he was an active member of the military. Because the soldier's last name was Feres, this decision by the Supreme Court, which has stood ever since, is called the Feres Doctrine. In defense of this doctrine, the government states that service members are compensated in other ways, such as through disability assistance available to veterans, pensions, and VA medical care.

This serves as little consolation to the most recent service member to challenge the Feres Doctrine. In July 2009, and Air Force airman went to a military medical center in California to have his gall bladder removed. During the surgery, a doctor cut his aorta, causing massive internal bleeding that was not corrected until he was transferred to a civilian hospital several hours later. By then, he had lost so much blood that both of his legs had to be amputated. He has so little of his legs left that his prosthetics are uncomfortable to wear and he spends most of his time in a wheelchair. He is only 23 years old. He and his wife have filed a medical malpractice lawsuit against the government requesting over $50 million in damages to compensate for lost income, pain and suffering, disfigurement, and loss of a marital relationship, among other things.

]]> The airman's attorney knows that it a long shot, since numerous people have unsuccessfully challenged the doctrine in the past. But he states, "I am championing Colton and Jessica's cause to overturn the extremely unjust, outmoded, universally criticized, and judicially erroneous Feres Doctrine so that not only the Reads but all our nation's active-duty military personnel will have the right to seek just redress for harm inflicted on them by federal governmental doctors and healthcare providers."

While this case, which was filed in Texas, seems far removed from those of us living in Kentucky, it still affects a large part of our state's population. Numerous service members reside and serve in Kentucky, and the overturning of this doctrine would be beneficial to those who serve in the military across the U.S. This article is just a general overview of a fairly complicated doctrine. If you have been injured and think the Feres Doctrine may apply, be sure to contact a knowledgeable Kentucky personal injury attorney to review the facts of your case before deciding whether or not to file a claim.

Sources:

Former airman sues U.S. after losing legs to botched surgery; Star-Telegram; Chris Vaughn; April 11, 2012

Overcorrecting While Driving Often Leads to Injuries in Kentucky Car Accidents

2012-04-03T14:14:23Z

On March 28, 2012, a 55-year-old driver lost his life in a car accident. He was driving in Vanceburg, Kentucky when his car left the road. He overcorrected, sending the car across the road and into an embankment on the other side. He was ejected from the car when it rolled over and died from his injuries.

Unfortunately this type of accident is not unusual. Over four percent of the car accidents that ended in fatalities in 2011 were caused by overcorrecting. As the above story shows, drivers of any age may become victims of overcorrecting, but young, inexperienced drivers are the most susceptible. In Virginia alone, 244 accidents in 2011 resulted from teenage drivers overcorrecting when their cars left the road. Drivers' education instructors to traffic engineers and everyone in between are discussing what may be causing these car accidents and what can be done to prevent them.

Some high school drivers' education programs are now including instruction on what to do if the car leaves the road. While some only discuss it in the classroom, others are practicing it on the road. One instructor grabs the wheel and intentionally steers the car off the road, then allows the student driver to practice returning to the pavement safely. This exercise is done at varying speeds, first slowly, then gradually adding speed. Another instructor covers overcorrecting in the classroom portion of drivers' education, stating that it would be unsafe to practice the maneuver at the speed that a typical overcorrecting accident would occur.

In both instances, however, the lesson is the same. If your car or truck leaves the road, take your foot off the gas pedal and continue going straight until you slow down. At that point, find a safe place to re-enter the road and do so slowly with your blinker on when traffic allows. This may sound like common sense, but common sense often disappears when you suddenly hit the rumble strip and find half of your car off the road. The key is to stay calm and react accordingly.

]]> Two employees from the Highway Safety Office and the Department of Transportation believe it is more important to consider why drivers are leaving the road in the first place. The most common factors are driving while under the influence, being distracted, or driving at a high rate of speed. It bears repeating that anyone behind the wheel of a car should be clear-minded, obeying the posted speed limit or driving slower in inclement weather, and should be paying attention only to the road ahead.

Hopefully a combination of additional training and a heightened awareness of the dangers of overcorrecting will help to reduce the number of these types of car wrecks in the future.

If you are injured in a car accident of this type, either as a passenger in the overcorrecting car or a driver or passenger in another car that gets hit, it is important to talk to a Kentucky car accident attorney. Even if it was a friend or relative that caused the crash, a claim or lawsuit may still need to be filed on your behalf to cover expenses you can incur because of your injuries. The experienced KY car accident attorneys at Miller & Falkner can assist you in this difficult situation and help you get the compensation you deserve.

Sources:

Fatal accident in Lewis County; The Ledger Independent; March 29, 2012

Instructors address teen drivers' overcorrecting; Lynchburg News and Advance; Jessie Pounds; March 13, 2012

Proposed Bill would Improve Dental Care for Kentucky Nursing Home Residents

2012-03-28T18:03:45Z

When comparing nursing homes as possible residences for a loved one, there are several things to consider. There are logistical details such as how far away the home is from friends and relatives. Financial constraints also play a major factor. But probably the most important thing to consider is the quality of care the person will receive while they reside there.

One aspect of care that is often overlooked by both the family of a nursing home resident and apparently the staff of some facilities is dental hygiene. Part of the daily ritual for the majority of children and adults across the country, oral care seems to be neglected or forgotten in some long-term care facilities. This neglect can lead not only to pain and discomfort for residents, but also to more serious problems. In one case, a Western Kentucky nursing home resident ended up with a gum infection that could have been fatal because the nursing staff didn't remove the person's dentures for six months. A proponent for oral care, Bernie Vonderheide reports "Recent studies have shown that as much as 44 percent of infections in nursing homes, such as deadly pneumonia, are caused by poor oral care."

In an attempt to improve these conditions for all Kentucky nursing home residents, a bill was introduced and has been passed by the House Health and Welfare Committee. Under House Bill 150, the Cabinet for Health and Human Services would work with the University of Louisville and University of Kentucky dental departments to create a program that would provide guidelines for dental health care in long-term care facilities. The program would be paid for by funds collected from nursing homes when they are fined for providing substandard care or putting residents at risk. A nursing assistant for each nursing home would receive training from one of the universities in dental care and would ultimately be responsible for the oral health care of all of the residents in the facility. A test of this system was done at a Lexington KY nursing home with a $25,000 grant from the Dental Trade Alliance Foundation. While the study results are unknown at this time, it appears that information that could be used in future training sessions was created and will be available to anyone interested in using it.

]]> The bill will have to be passed by the House before it moves to the Senate for consideration.

If you have a loved one living in a Kentucky nursing home or long-term care facility, check with the staff to find out what their procedure is for providing dental care to residents. If one is not in place, encourage the home's administration to implement one. If the dental health of a loved one has been neglected and he or she required medical attention, speak to a Kentucky nursing home attorney about the situation. The law firm of Miller & Falkner provides Kentuckians with compassionate and knowledgeable advice on nursing home abuse and neglect.

Sources:

Committee passes bill to improve oral health care at nursing homes; Lexington Herald-Leader; Valarie Honeycutt Spears; March 18, 2012

Motorcyclist Killed in Truck Accident on I-65 in Louisville Kentucky

2012-03-21T17:37:10Z

On Tuesday, March 6, 2012, a motorcyclist was killed on I-65 in Louisville, Kentucky. It appears that the motorcyclist was travelling in the middle lane between a pickup truck and a tractor-trailer truck. According to Louisville police, the accident seems to have been caused when the driver of the pickup truck moved into the lane the motorcycle was in, causing the motorcycle to collide with the semi. Traffic on I-65 and the nearby ramps of the Watterson were closed for several hours and rush-hour traffic had to be diverted.

This horrific crash illustrates a few points of driver safety that bear repeating. First, riding a motorcycle can be fun and exhilarating, but it is inherently much more dangerous than driving a car. As a result, motorcyclists have to take extra precautions, especially when riding on a multi-lane highway. Motorcycles are smaller than cars or trucks and can be overlooked by other drivers on the road. Motorcycle riders have to be incredibly alert when riding to make up for other drivers possibly not seeing them. Proper gear should be worn at all times, including long pants, boots, a protective jacket and a helmet. The motorcyclist in this accident does not appear to have played any role in this accident, he was an innocent victim, and all of the above precautions still may not have saved his life.

Second, car and truck drivers need to always be alert when driving, paying attention to the road and those around them. It is even more important when travelling at higher speeds on a freeway or interstate. As noted above, motorcycles are smaller and may be harder to notice, especially in a rearview mirror. Any distraction may be enough to cause a driver to not see a motorcyclist, or another car driver, before it is too late. It is unknown whether the pickup truck driver in this wreck was distracted by the radio, a cellphone, or even a snack, or if distraction played no role in the accident.

]]> Third, tractor-trailers are very large vehicles, especially when compared to motorcycles, and extra care needs to be taken when driving near them. More commercial truck accidents end in death than any other type of crash simply because of the sheer size and weight of these vehicles. Always allow plenty of room when driving near these big rigs and try not to get boxed in by more than one of them. Again, it was not the motorcyclist's fault that he was pushed into the semi in this case.

Our hearts go out to the family of the motorcyclist. While it may not be a priority at this time, it is important that they speak to a Kentucky car accident attorney to determine what insurance claims need to be filed and if a wrongful death case should be pursued. Monetary awards will not bring a loved one back, but it may help with funeral expenses and future financial stability. Charles Miller and Rheanne Falkner have years of experience in helping families through this type of difficult time.

Sources:

Fatal accident on I-65; wave 3; Sarah Eisenmenger; March 6, 2012

Accident closes I-65 southbound near Grade Lane; WDRB; March 6, 2012

ATV Crash in Kentucky Claims Life of Young Woman

2012-03-13T14:29:01Z

Spring is in the air in Kentucky, and with it comes the upswing of outdoor activities that have been on hold since fall. Children are swinging and sliding, people are once again tending to their lawns, and riders are gassing up their ATVs for the season. Unfortunately, with the thrill and freedom of ATV riding comes the risk of serious injury or death.

On February 26, 2012, a woman was killed in an ATV accident in Meade County Kentucky. She was riding on an ATV that was being driven by her fiancé. They were riding in circles when her fiancé lost control of the ATV and it flipped. They both fell to the ground and the 26-year-old woman was killed. The driver admitted to consuming alcohol before causing the ATV accident. He was allowed to attend the victim's funeral, but then was arrested by police. He has been charged with improper control and driving under the influence, and more charges may be added.

The ATV Safety Institute provides the following guidelines to help riders operate ATVs safely:

Always wear a DOT-compliant helmet, goggles, long sleeves, long pants, over-the-ankle boots, and gloves.

Never ride on paved roads except to cross when done safely and permitted by law - another vehicle could hit you. ATVs are designed to be operated off-highway.

Never ride under the influence of alcohol or other drugs.

Never carry a passenger on a single-rider ATV, and no more than one passenger on an ATV specifically designed for two people.

Ride an ATV that's right for your age.

Supervise riders younger than 16; ATVs are not toys.

Ride only on designated trails and at a safe speed.

Take a hands-on ATV RiderCourseSM and the free online E-Course. Visit ATVsafety.org or call 800.887.2887.

In the case above, at least three of these guidelines were not followed. The driver had been drinking alcohol, neither rider was wearing a helmet at the time of the crash, and they were riding on an unfinished part of a highway instead of a designated ATV trail. All of these factors likely contributed to the victim's death.

]]> Although the driver of the ATV has expressed remorse, the fact remains that his actions caused the death of the victim. Her life has abruptly ended and his has been changed forever. Now both families will have to pick up the pieces and try to go on with their lives. While the victim's family may be hesitant to file a wrongful death claim against her fiancé, it is most likely within their rights to do so. They should speak to a Kentucky wrongful death attorney to discuss the facts of the case and determine what action needs to be taken. Charles Miller and Rheanne Falkner at Miller & Falkner are experienced personal injury and wrongful death attorneys who help clients throughout Kentucky and Indiana.

Sources:

Man Charged With Murder After Fiancee Dies In ATV Crash;
WLKY; Daniel Kemp; March 1, 2012

Proposed Kentucky Legislation Regarding Lawsuits against Nursing Homes

2012-03-09T18:16:24Z

On February 1, 2012, state Representative Melvin Henley introduced new legislation that would change the way nursing home abuse and neglect cases would be handled in Kentucky. The proposed legislation, House Bill 361, would require all complaints of abuse or neglect against any long-term care facility to be heard by a medical review panel before the case could proceed to trial.

The medical review panel would be comprised of one attorney and three doctors. The attorney would be agreed upon by the facility and the resident first; then the selected attorney would help them find the physicians. After hearing from both sides, the three physicians would each vote whether or not they thought the claim was valid. The parties could use this information to settle the claim, to drop the charges, or to move forward toward trial, with the medical review panel's opinion as potential evidence.

Proponents of the bill state that it does not prohibit nursing home residents from taking their cases to trial, nor does it limit the amount of damages that could be awarded. They also point to Indiana and Louisiana as states that have seen a drop in liability costs since they adopted the use of medical review panels. They view this as a result of frivolous lawsuits being stopped before they go to trial.

Those who oppose the bill, including AARP of Kentucky and the Kentucky Justice Association think the bill will be detrimental to those seeking justice. Residents or their families that have already been injured or suffered the loss of a loved one because of nursing home neglect or abuse would now have one more hoop to jump through before receiving any compensation they are owed. Those wanting to pursue legal action may have to pay a $100 fee for the medical review board, and adding this extra step will likely delay the final outcome of the case, causing additional emotional and financial stress. "The overall concept of increasing costs and delaying justice for people who are doing nothing wrong" is not appropriate, stated Maresa Fawns, the executive director of the Kentucky Justice Association. She also noted that some studies have shown that the medical review boards tend to vote in favor of the long-term care facilities over the victims.

]]> Fortunately for those who have been the victim of nursing home abuse or neglect, any action on House Bill 361 has been delayed for now. Rep. Tom Burch, Chairman of House Health and Welfare said the bill requires further review, but may be revisited this summer.

If you or a loved one have suffered abuse or been neglected at a nursing home or other long-term care facility, please contact an experienced Kentucky nursing home attorney. The attorneys at Miller & Falkner provide caring, knowledgeable guidance to those who are dealing with these issues.

Sources:

Long-term care industry seeks to limit lawuits; Business First; Ed Green; March 2, 2012

Family of Kentucky Nursing Home Neglect Victim Awarded $8 Million

2012-02-29T19:35:57Z

A retired doctor was living in Treyton Oak Towers nursing home in Louisville, Kentucky. The resident allegedly suffered from osteoporosis and had a care plan in place regarding how he was to be moved. A care plan is often created by a hospital or physician when a nursing home or assisted living resident requires care that differs from the normal care given by the facility. In this case, the attorney for the resident alleged that his care plan called for two assistants to be used when moving him.

In September 2008, the victim's family claims he was moved by only one person without the use of a lift and that both of his legs were broken during the move. Because he had previously suffered a stroke, he was unable to tell anyone about the pain he was suffering. The lawsuit filed on his behalf stated that the nursing home attempted to cover up the situation and that his broken legs were not discovered until September 24, 2008. He was transferred to a hospital for the broken bones, and was later relocated to a different nursing home. He succumbed to his injuries on November 3, 2008.

While the attorneys for the nursing home tried to convince the jury how much the victim meant to them, and that he was never abused or neglected, the jury still found in favor of the victim, awarding his estate $8 million in damages. Of this total, $1 million was awarded because the nursing home violated Kentucky's nursing home statute. Numerous patient rights are covered by KRS 216.515, the statute that covers the rights of residents and the duties of the facility. The lawsuit in this case may have included the violation of one or more of the following sections:

Section 6 - "All residents shall be free from mental and physical abuse..."
Section 19 - "Every resident and the responsible party...has the right to be fully informed of the resident's medical condition..."

Section 22 - "The resident's responsible party or family member...shall be notified immediately of any accident, sudden illness, disease, unexplained absence, or anything unusual involving the resident."

]]> The rest of the monetary awarded included $2 million for pain and suffering and $5 million in punitive damages, which is supposed to serve as a punishment to the nursing home and as encouragement for the owners and staff to not act in the same manner in the future.

Nursing home abuse and neglect cases can be difficult. Oftentimes, as in the case above, the victims cannot communicate their side of the story, leaving it to their families to sort out the details. A compassionate, experienced Kentucky nursing home attorney can be a great asset to have in these situations. Charles Miller and Rheanne Falkner are experienced in helping nursing home residents and their families deal with difficult situations. If you have any questions regarding the case above, or a case of your own, please contact them.

Sources:

$8 million verdict returned against Louisville nursing home; Courier-Journal; Andrew Wolfson and Jason Riley; February 13, 2012

Kentucky Woman Dies after being given Wrong Prescription at Pharmacy

2012-02-21T16:07:10Z

In November 2010, a woman went to the Walgreens on Stony Brook Drive in Jeffersontown, Kentucky to get her prescription filled. She had been suffering with high blood pressure among other things and needed hydralazine to treat it. Unfortunately, the pharmacist that took the prescription from her gave her hydroxine, an antihistamine, instead. Because of the error, the woman did not receive the proper treatment for her high blood pressure for two weeks. By the time the error was found, she had to be hospitalized and she died soon after.

The victim's family filed a wrongful death lawsuit on February 15, 2012 in Jefferson Circuit Court. The suit claims that the pharmacist on duty did not counsel the victim on the medication. If he had, he would have noticed the mistake and the proper medication could have been dispensed immediately. Both the pharmacist and Walgreen Corporation are named as defendants in the lawsuit. Compensatory and punitive damages are being requested in the claim.

A wrongful death lawsuit can be filed for numerous reasons. In this case, the victim was treated improperly because she was given the wrong medication, which is considered a type of medical malpractice. Fatal car accidents caused by drunk drivers, drivers under the influence of drugs, or other distracted drivers can result in a wrongful death lawsuit. A lawsuit of this kind can be filed if someone is killed by faulty products or equipment. A good example of this situation is the stage collapse at the Indianapolis, Indiana fairgrounds that killed several people. Deaths from nursing home negligence or abuse can also be cause for a wrongful death lawsuit.

Wrongful death lawsuits are filed by the estate of the victim, most often a family member. The statute of limitations in Kentucky, which is how long the estate has to file suit, is a bit confusing. After a victim has died, the family has up to two years to appoint a representative and to file a lawsuit. Once a representative has been named, a suit must be filed within one year. So if a representative is appointed two days after the victim's death, the estate has one year and two days after the death to file a claim because a representative has been appointed. If the estate waits 18 months to find a representative, there are only six months left in which to file a claim before the two-years-after-death deadline.

]]> Potential damages in wrongful death claims can also be difficult to understand. Lost wages are a major consideration in the amount of damages. They are not based solely on the amount of income the deceased was earning at the time of death. Other factors such as age, ability to work, and the amount of savings become part of the equation. Lost wage damages need to be calculated according to the deceased's ability to earn money. Lost income can even be included in damages when the deceased had never worked, for example, in the case of a minor who never had the opportunity to be employed. Other damages that can be claimed include funeral costs and punitive damages, which serve as punishment to the defendant to deter him from acting the same way in the future.

This information is just a general summary of the complicated facts behind filing a wrongful death lawsuit. If you have suffered the loss of a loved one, it is important to contact a Kentucky wrongful death attorney to determine whether or not a lawsuit can be filed on behalf of the estate and what damages can be requested. No amount of financial gain will bring someone back, or lessen the pain. But it may help with current and future financial issues, which will at least lessen that burden on those who are suffering from the loss of a loved one. The attorneys at Miller & Falkner have compassionately helped numerous clients through these difficult decisions and would welcome the opportunity to serve you.

Sources:

Suit claims Walgreens gave wrong drug, causing death; Courier-Journal; Jason Riley; February 16, 2012

Two Kentucky Car Accident Fatalities caused by Drunk Drivers

2012-02-16T17:13:50Z

On Sunday, February 5, 2012, Robert Kempf was driving on I-71 near the Watterson Expressway in Louisville, Kentucky when a fatal accident occurred. Based on a preliminary investigation, this tragic car accident could have been avoided.

Robert Kempf and his friend had been watching the Super Bowl that Sunday, visiting with friends, drinking some alcohol. Later that night, Mr. Kempf got in his 1995 white Corvette with his friend. Once on I-71, he started speeding and lost control of the vehicle. Investigators are unsure if he ran off the road and rolled the car or if the car rolled over until it left the road. Either way, his 49-year-old passenger was killed when the car rolled onto its roof. How Mr. Kempf was able to walk away with minor injuries is a mystery.

What is not a mystery are the factors involved in this crash. First, Mr. Kempf was driving over the posted speed limit, which makes it more difficult to control a vehicle. Second, Mr. Kempf had been drinking prior to driving the vehicle. Being under the influence of drugs or alcohol seriously hinders a driver's ability to safely operate a vehicle. Mr. Kempf certainly should have been aware of this, especially since he has been arrested for DUI three other times in Louisville. He has been charged again with DUI in this case too. However, this time is a little different because he has also been charged with murder.

A similar case is unfolding now, also in Louisville. John Koerner of Clarksville, Indiana was driving on Grinstead Drive with two passengers in his car on February 10th when he lost control of the vehicle and hit a tree. One of his passengers was ejected from the vehicle during the accident. According to witnesses, Mr. Koerner and Kristy Harper, the other passenger, fled the scene. They were both found shortly after they ran. The injured passenger was taken to the hospital and the driver was charged with leaving the scene of an accident, driving under the influence, assault and wanton endangerment. Ms. Harper was charged with leaving the scene of an accident and public intoxication.

Unfortunately, the injured passenger succumbed to a brain injury on February 15th, raising the possibility that Mr. Koerner could now be charged with murder.

]]> Family members of the victims in both of these accidents should contact a Kentucky personal injury attorney to discuss the facts in these cases and determine whether or not wrongful death lawsuits should be filed on behalf of the victims. Based on the charges already in place and pending, they may very well be entitled to various types of damages to compensate them for their losses. Money does not bring a loved one back, but it may bring some closure and provide future financial stability. The attorneys at Miller & Falkner have helped numerous accident victims make sense of the chaos involved in dealing with insurance companies and legal claims during and emotional time. If you have been in this situation or require assistance with any other personal injury incident, please contact them.

Sources:

Driver facing murder, DUI charges after I-71 crash; WHAS; Gene Kang; February 6, 2012

Passenger in alleged DUI crash dies; driver, other passenger charged; WHAS; February 15, 2012

Medical Malpractice Lawsuit Ends in $1.5 Million in Indiana, Another Begins in Kentucky

2012-02-07T15:04:56Z

A medical malpractice suit has ended in the victim's favor in New Albany, Indiana, and a new case has been filed in Taylor County, Kentucky. The first case altered a young woman's life forever, and the second case took the life of a woman completely.

A 21-year-old woman went to Floyd Memorial Hospital because of abdominal pain on June 5, 2003. She was told by Dr. William Garner that she required surgery the next day. Dr. Garner changed his mind about the surgery the next day, then left for the weekend. By June 8th, the patient's condition had dramatically worsened and she had emergency surgery to remove her bowel. She filed a medical malpractice lawsuit contending that if the doctor had continued to have her monitored in his absence, her need to have surgery would have been discovered sooner and more of her bowel could have been saved.

As a result of the delayed surgery, the suit alleges that the victim's life has been negatively affected. She finds it impossible to work. Her body processes food in 30 minutes, rather than the normal six to eight hours, so she is unable to obtain proper nutrition from the things she eats. She also suffers from bloating.

In January, 2012, the jury agreed with the victim and awarded her $1.5 million in damages.
The amount was reduced by the courts to $1.25 million due to a state limit on medical malpractice awards. Some may think a jury of the victim's peers may have not been fair because they are not in the medical profession. But Indiana requires all medical malpractice claims to be reviewed by a panel of three impartial doctors before they can go to trial, and all three agreed with the victim and allowed the case to go to trial.

]]> In Kentucky, a man has filed a medical malpractice lawsuit claiming gross negligence against Taylor County EMS for allegedly causing the death of his wife. The victim was suffering from pneumonia in December 2010 at a hospital in Campbellsville, Kentucky, and needed to be transported to Norton Hospital in Louisville. Taylor County EMS began transporting her, but they realized they had run out of oxygen, so they changed course to Hardin Memorial Hospital. Once she arrived at Norton, the victim was put on a ventilator, but she died 11 days later. The husband contends that his wife was deprived of oxygen in the ambulance for around 20 minutes and was in shock when they arrived at the Hardin hospital. He claims she never recognized him again.

The victim's husband is asking for an undisclosed amount of damages, both to cover his emotional and financial distress, and to punish the EMS service in the hopes that they will be more careful in the future and this situation will not happen again.

This suit was filed in December 2011, just a few days before the one-year deadline to file a medical malpractice claim in Kentucky. If you or someone you know has suffered injuries or a wrongful death due to a potential medical error, it is important to speak to an experienced Indiana or Kentucky medical malpractice attorney. The lawyers at Miller & Falkner are knowledgeable in the laws in both states and can assist you in filing a claim.

Sources:

Jury awards $1.5 million in medical malpractice suit; News and Tribune; MATT THACKER; January 20, 2012

Campbellsville man suing for negligence after alleged lack of oxygen causes wife's death; WHAS; February 1, 2012

Kentucky Couple Files Product Liability Suit against Kraft Foods

2012-01-30T18:57:40Z

On September 21, 2011, Leamon Perkins of Pine Knot, Kentucky in McCreary County ate a bowl of microwavable Velveeta Shells and Cheese. He became very ill and ended up in surgery on September 29, 2011. According to his doctors, Mr. Perkins' small bowel was perforated with a small piece of metal that showed up on a CT scan and he had contracted peritonitis. The surgeon removed the portion of his small bowel that had been damaged by the sliver of metal and the metal piece itself.

The next day, Kraft Foods, the manufacturer of the macaroni and cheese recalled 137,000 cases of the product "as a precaution due to the possible presence of small, thin wire bristle pieces," according to the FDA recall press release. The recall was voluntary, as opposed to FDA-mandated, and Kraft stated it had not received any complaints or heard of anyone being injured.

Mr. Perkins filed a product liability lawsuit this month against Kraft. Why he waited so long to file the lawsuit is unknown. It is possible that he was not aware of the product recall until recently, so he did not put the two together. Kentucky law allows individuals to file product liability claims up to one year after the injury occurred, so he was well within the filing period.

In the lawsuit, Mr. Perkins is seeking $6 million in damages. The amount includes both compensatory and punitive damages. His wife has requested $500,000 in damages for loss of consortium. Compensatory damages often include lost wages and medical bills, as well as other less tangible items, such as physical and emotional distress. Loss of consortium is most often claimed by a spouse for lost or interrupted marital relations related to the accident. It can also be claimed by a parent or child of a victim for a reduction or termination of affection because of the victim's injuries. Punitive damages are not related to a particular loss, but instead serve to punish the defendant for the incident that occurred. Many plaintiffs claim punitive damages in an attempt to deter the defendant from allowing a similar incident to occur in the future.

]]> The recall covers three varieties of microwavable macaroni and cheese products that were distributed across the United States. The batches in question have expiration dates between March and May of 2012. If you purchase this type of product, please check the FDA recall notice and your pantry to make sure you do not have any of the products with the dates in question in your home. If you do, you can take them to the store that you purchased them from for an exchange or refund. If you or someone you know may have eaten this product and had subsequent medical issues, please contact a Kentucky personal injury attorney at Miller & Falkner to discuss your case.

Sources:

McCreary couple sue Kraft, say meal contained cheese and metal; herald-leader.com; Valarie Honeycutt Spears; January 24, 2012