Medtronic Defibrillator Lead Recall

October 29, 2007

In a blog post a few weeks ago on the Medtronic recall, I noted that I thought Medtronics was doing the right thing, acting conclusively without equivocation once the decision to recall the leads was made. Apparently, the FDA agrees. Medtronic has been praised by the FDA for ordering the recall in the “absence of conclusive data.”

I agree with part of the premise, but I disagree that there is an “absence of conclusive data.” Medtronic has confirmed 665 chronic fractures in returned leads already. Exactly how many people have to die or have their lives put at risk before the FDA believes that there is conclusive data? Does anyone wonder why Congress feels compelled to investigate what the FDA has done in its oversight role in the Medtronic recall?

While Medtronic may have acted decisively, which is commendable, there is increasing evidence that it should have acted sooner to get in front of the problem. According to Dr. Sidney Wolfe, director of the health research group at Public Citizen, Medtronics waited too long to act. "Why did the FDA, aware of the rapidly mounting number of injury reports, not force the company to recall defibrillators not yet implanted in the early part of this year?" wrote Dr. Wolfe in a letter to the FDA, pointing to data that shows that 1,194 associated injuries had been reported - up from 296 injuries reported in the first 10 months of 2006, a 400% increase. Congress is also concerned. Iowa Senator Charles Grassley wrote in a letter to the FDA that it appears "Medtronic was aware of the potential lead fractures several months before suspending sales of the Sprint Fidelis defibrillation leads. I am concerned that action may not have been taken in a timely fashion in this case as well.” Dr. William Maisel, who specializes in medical devices for the heart in Boston, told the New York Times that Medtronic's warning to doctors in March, which told doctors of some early fracture reports, is another example of medical device companies’ failure to get out in front of the problem. "What is frustrating here is that this was another situation that was predictable,” Dr. Maisel told the paper. The Minneapolis Heart Institute apparently also knew where this was headed even before Medtronic's initial warning and discontinued using defibrillators with these leads back in February.

While the speed at which Medtronic acted is certainly an issue that will be addressed by Medtronics lead recall lawyers, the core problem is not the speed at which these companies act to recall. Instead, the root problem is that medical device manufacturers, like Medtronic, rush these products to market because of the huge profit margins defibrillators provide to those who can gain market share. In the last fifteen years, companies selling cardic medical devices have been on the rise. The stock price of one of Medtronic competitors, Canadian-based St. Jude Medical Inc., rose 232 percent between November 2002 and January 2006. Like we saw the housing boom, these kind of great rewards lead people to take risks they should not take.

The same thing happened just a few years ago. In June 2005, Guidant, which has since been bought by Boston Scientific, also recalled its defibrillators. It certainly appears the Guidant defibrillators were rushed onto the market, as well. Reportedly, the clinical trial data on these leads was not reviewed by the FDA. I really have a hard time believing this is true. If it turns out to be true, and there is a lot of investigation to be done both by Congress and by Medtronic defibrillator lead recall lawyers, it underscores once again that the fox is guarding the medical device hen house.

The competitive advantage these defibrillators had is that the Medtronic Sprint Fidelis lead was the smallest and thinnest wire Medtronic offered, which was alluring to doctors implanting defibrillators, because a thin lead is easier to thread through blood vessels. So Medtronics had a powerful hook to sell this new advance. But while the technology was superior, there was no longitudinal history of safety or efficacy. It is not surprising that Medtronics has now turned to an older lead, the Quattro lead, which has a more complete safety profile.

Our Medtronic defibrillator lead recall lawyers are reviewing defective lead cases throughout the country. If you want to discuss your case with a Medtronics defibrillator lead recall lawyer, call for a free consultation at 800-553-8082 or click here for a free Internet consultation. You can also click here for a question and answer of the issues in the defibrillator lead recall class action.

Predicting the Value of Medical Malpractice Cases

October 25, 2007

A post on the Illinois Trial Practice Blog discusses a product for medical malpractice lawyers called MedMal Reports. This company generates a report based on the payout reported in the National Practitioner’s Data Bank. Reporting of settlements and verdicts is mandatory so the data is not skewed the way published verdict reports favor those medical malpractice lawyers who seek publication.

The theory is that medical malpractice payments are largely predictable. Of course, the question is what variable should be included in the calculus. Interestingly, the company believes that there is not enough focus on the defendant in valuing medical malpractice cases, citing the following facts:

(1) The number of defendants has an impact on value. The more defendants, the higher the total recovery in medical malpractice cases;

(2) The defendant’s job and age impacts the value of medical malpractice cases. Apparently, the data shows that physicians pay more than residents and older doctors pay less than younger doctors; and

(3) The accusations themselves matter. For example, doctors accused of altering medical records pay on average double the settlement/verdict.

These are certainly interesting observations. Anyone who reads this blog knows I am a big fan of statistical calculations to predict value. But, obviously, it is impossible to use data to predict the value of any specific medical malpractice case. But for $320, I think it is worth taking a look at in the right case. The website features a few sample valuations, including a sample valuation of a Maryland medical malpractice case.

New Maryland Assumption of the Risk Opinion

October 23, 2007

The Maryland Court of Appeals issued an interesting opinion last week on Maryland’s assumption of the risk doctrine in American Powerlifting Association v. Cotillo.

The Plaintiff, a Prince George’s County police officer, was seriously injured in a power lifting contest at Patuxent High School in Calvert County, Maryland. He brought a negligence claim in Calvert County against the American Powerlifting Association and the Calvert County Board of Education. Essentially, the Plaintiff claimed that his injuries could have been prevented by the two Patuxent High School students who spotted the Plaintiff during his effort to bench press 530 pounds. A Calvert County Circuit Court judge granted the Defendant’s motion for summary judgment on the grounds that the Plaintiff assumed the risk of his injuries.

The Maryland Court of Special Appeals affirmed on all counts except the negligence claim grounded in allegations of improper preparatory instruction of the spotter. The court’s reasoning was that the Plaintiff did not know the spotters were improperly trained, and because their improper training presented an enhanced risk not normally incidental to powerlifting, Plaintiff could not have assumed the risk.

The Maryland Court of Appeals disagreed, finding that the assumption of the risk doctrine barred all of Plaintiff’s claims, because any person of normal intelligence knows or should know that one of the risks inherent in powerlifting is that the bar may fall and injure the participant.

Continue reading "New Maryland Assumption of the Risk Opinion" »

Medtronics Lead Recall Lawyers File Class Action Lawsuit

October 19, 2007

Plaintiffs in the Medtronic defibrillator litigation are seeking class action certification against Medtronic for their defective implantable defibrillators. Five deaths have already been attributed to broken wires in the leads of these Medtronic defibrillators. Regrettably, more are expected given that 235,000 Americans have the four Sprint Fidelis lead wires that even Medtronic concedes are failing. Medtronic estimates that four to five thousand patients with the Sprint Fidelis lead will experience a lead fracture within 30 months of implantation. (You cannot help but assume this is low.) Medtronic is asking the 235,000 people with these defective electrical leads to have their physician evaluate whether their lead has developed a fracture. Certainly, you should contact your doctor if you do not know whether you have a Medtronic defibrillator - many people do not know the brand of their defibrillator, much less details as to the component parts (although most patients have a wallet card that will specify the manufacturer of their defibrillator leads). The Sprint Fidelis leads that have been recalled have the model numbers 6949, 6948, 6931 and 6930.

Obviously, lead recalls are particularly serious given the difficulty to replace them. Should a defective Medtronic defibrillator be replaced if there is no evidence of a fracture? This is an issue that can and should be addressed with your doctor.

While Medtronic has not disclosed the precise mechanism of how these Sprint Fidelis lead fracture failures have failed, it appears that the defect is caused by the small diameter of the coil and conductors in the lead. Because of this, the lead is subject to stress damage both during and after the defibrillator is implanted. A lead fracture occurs when the conductor is critically overstressed. While only five deaths have been reported, many people are reporting repeated electrical shocks due to their lead having fractured.

Medtronic appears to be trying to do the right thing after the damage has been done. Medtronic deserves credit for this. But the problem with Medtronic and these other medical device companies selling defibrillators is that because defibrillators are so lucrative, in an effort to sell more product than the competition, companies rush out new defibrillators, supposedly technologically superior to older defibrillators, but with no proven history of safety and reliability.

Our lawyers are representing patients with these Medtronic defibrillators with defective leads not only in Maryland but around the country. Fill out this brief form if you need additional information or would like us to review you case, or call us at 800-553-8082.

You can also click here for a question and answer of the issues in the defibrillator lead recall class action.

Allstate Settles Bad Faith Claims in Washington

October 18, 2007

The Seattle Post-Intelligencer reports that Allstate Insurance Co. will now fairly compensate thousands of Washington drivers for out-of-pocket medical expenses in a class action settlement. In 2005, Allstate was sued for arbitrarily limiting PIP payments for car accident victims. Allstate used Colossus to determine the average pay rate for a procedure in the geographical area and then paid out only 85 percent of what it found to be the average amount. To be clear, they did not pay what they thought was fair; they paid 85% of what they thought was fair. In an unrelated story, Allstate takes 100% of the premiums from their insured. This practice underscores the insurance company motto of taking premiums and denying claims.

If any of this sounds familiar to you, I blogged last week about a former Allstate employee’s testimony that revealed Allstate’s alleged systematic bad faith in a first party bad faith case in Kentucky.

I also blogged back in May about the newly strengthened first party bad faith bill that passed in Washington, which has much sharper teeth that Maryland’s new first party bad faith law, allowing for three times the actual damages incurred plus attorneys’ fees and expenses. I cannot help but wonder if that precipitated settlement in this Washington bad faith case.

Maryland Court of Special Appeals Vacancy

October 17, 2007

Twenty-nine people have applied to fill the at-large vacancy on the Court of Special Appeals left by Judge James A. Kenney’s mandatory retirement. (Parenthetically, most judges continue to sit on the bench after they retire, so can we just drop the mandatory retirement nonsense? The antiquated notion of mandatory retirement at 70 does not fly in 2007.)

There are an impressive number of quality applicants for the vacancy. They are:

Claudia Adeline Barber, a family lawyer in Laurel
Judge Donald E. Beachley (Washington County)
Bruce Bender, a trial lawyer in Montgomery County
Judge Stuart R. Berger (Baltimore City)
Judge Victor K. Butanis (Harford County)
Judge William O. Carr, (Harford County)
Judge Steven G. Chappelle (Charles County)
Jack Condliffe, a domestic and personal injury lawyer in Baltimore County
Marianne Elizabeth Dise, a lawyer with the Attorney General’s office
Maury Steven Epner, a criminal lawyer in Montgomery County
Karen Louise Federman Henry, a Montgomery County State’s Attorney
Kathryn Grill Graeff, a lawyer with the Attorney General’s office
Robert John Greenleaf, a former state’s attorney for Caroline County
Judge Michele Denise Hotten (Prince George’s County)
Ronald H. Jarashow, an Annapolis attorney
James Arthur Johnson, from the defense firm Semmes, Bowen & Semmes in Baltimore
Judge Diane O. Leasure (Howard County)
Judge Albert J, Matricciani Jr. (Baltimore City)
Jo Ann Patricia Myles, a Prince George’s County lawyer
Francis A. Pommett III, a Baltimore lawyer
Judge Julie Stevenson Solt (Frederick County)
Linda Theresa Spradlin-Dahn, an appellate litigator in Annapolis
Walter Ira Weinschenk, Montgomery County lawyer
Irwin E. Weiss, a personal injury lawyer in Baltimore
Edward Gregory Wells, a former Calvert County state’s attorney
Gloria Selena Wilson Shelton, counsel for Maryland Automobile Insurance Fund (MAIF)
Judge Alexander Wright Jr., a former Baltimore County Circuit Court judge
Robert Anthony Zarnoch, lawyer with the Attorney General’s office
Phillip R. Zuber, an insurance defense lawyer in Prince George’s County

Getting Police Reports in Maryland: New Law

October 11, 2007

Maryland has a new law that went into effect this month providing for a couple of additional hoops for car accident lawyers to jump through to get police reports in Maryland. The Maryland Transportation Article Section 20-110 sets forth new requirements in Maryland to get a police report within 60 days of the accident. The requesting party must provide (1) a valid driver's license, (2) proof of your legitimate reason to obtain the police report, and (3) a notarized certification that for 60 days after the accident or incident you will not use the police report for commercial solicitation.

Baltimore County has created a form to meet these new requirements although it does not appear to require a driver's license. You can get this form on the Maryland Personal Injury Help Center miscellaneous forms and letters page by clicking here. We will continue to add the forms additional counties provide to us as they become available.

Allstate Adjuster Tells All in Kentucky First Party Bad Faith Trial

October 10, 2007

A former Allstate claims adjuster supervisor tells all in a first party bad faith trial in Kentucky. My response: I am shocked - shocked - that there is gambling going on in this establishment.

To read more about the former Allstate employee's testimony, click here.

Related Posts

  • Allstate Bad Faith Trial
  • (settlement in case pending in Washington)

    Continue reading "Allstate Adjuster Tells All in Kentucky First Party Bad Faith Trial" »

    Do Well Paid Truck Drivers Cause Fewer Truck Accidents?

    October 8, 2007

    I read a study this weekend (my wife was at a jewelry party and my kids were asleep on Friday night) published last year by the Cornell University Industrial & Labor Relations Review, that looked at the correlation between truck driver compensation and safety outcomes.

    I am sure the results of the study were embraced by the Teamsters: increases in truck driver compensation led to less truck accidents. It is unclear whether the improvement in the drivers' safety records was the result of more careful driving or other related behavioral adjustments, but the strength of the data was pretty remarkable.

    Why is there a correlation between compensation and a decrease in truck accidents? I’m not sure that a study can be devised to prove driver motivations, but it makes sense that the more you are paid, the more likely you are to want to do the things you have to do to keep your job. It seems logical that paying truck drivers well serves as a counterbalance to the lure of engaging in risky behaviors - such as speeding and driving without proper rest - in order to drive further to make a decent wage. Moreover, better paid truck drivers may cause less truck accidents because more pay means better truck driver retention, which leads to more experienced truck drivers on our nation’s highways.

    Another interesting finding was that the relationship between crash risk and driving experience was U-shaped. In other words, truck accidents increased both at low levels and high levels of experience. The authors believe that this finding lends support to the importance of driver re-training programs. This might be true, although I suspect that older drivers may be less able to make the adjustments necessary to avoid truck accidents.

    This study seems to tell us that one way to reduce truck accidents would be to require minimum wages for truck drivers. This is not an easy solution because it would increase the cost of shipping, which would increase the cost of manufactured goods in this country. But when you consider that one out of every eight fatal traffic accidents involves a truck, it might be a cost worth bearing.

    Required Pre-Suit Mediation in Medical Malpractice Cases

    October 4, 2007

    The Illinois Supreme Court has approved a new plan that requires medical malpractice parties in two Illinois counties to seek mediation before filing suit in medical malpractice cases.

    The hope is that both sides can come to an agreement to resolve the case without the necessity of lengthy (and costly) discovery and trial.

    I hope this works but I think most Maryland malpractice lawyers are skeptical. The problem in medical malpractice cases is that it is sometimes difficult to judge the strengths and weakness of the case, with respect to both damages and liability, until extensive discovery has been done. Plaintiff’s medical malpractice lawyers often fume at the insurance companies’ unwillingness to make offers before suit is filed, but the truth is that this is often the best course for both parties.

    Maryland Lawyers: New IOLTA Rules in 2008

    October 2, 2007

    On January 1, 2008, the new IOLTA rules approved by the Maryland Court of Appeals go into effect. There have long been rules for Maryland lawyers to open a trust account for the deposit of client funds that are not purely payments for legal fees or expenses. What had been absent is any requirement as to the nuances of the maintenance of the accounts.

    The new rule, Maryland Rule 606.1, provides detail as to how IOLTA accounts in Maryland are to be kept in the future. At a quick glance, it appears that there is a lot more that must be done. But if your account is handled by a bookkeeper, as I suspect is the case for the vast majority of Maryland lawyers, you are probably already adhering to almost all of the new rules. The only rule we do not currently follow is a notation which requires a listing of the lawyer responsible for the transaction, and, at our firm, it is always the same lawyer. To read the entire rule, click here.

    Maryland Verdicts in Auto, Truck and Motorcycle Accident Cases

    October 1, 2007

    It is Christmas for the Maryland Personal Injury Lawyer Blog.... Jury Verdict Research just published a new Maryland specific study on the median compensation awards for car, truck and motorcycle accidents. In cases that go to trial, the median recovery was $11,328. Only in 1% of the cases did the jury award more than $500,000. Plaintiffs prevailed and received a recovery in 74% of the motor vehicle accident cases that went to trial in Maryland.

    This data is from Maryland verdicts from 2000-2006. The data has remained relatively unchanged. From 1998-2004, the median recovery was $11,277, $51 dollars less than the latest study.

    While I'm excited to see a new study on Maryland auto accident verdicts because I love looking at statistics on jury verdicts, I think the data is fairly useless. As I have written before, Maryland's jury verdicts are distorted by the defense lawyers who routinely "bump up" what should be small court claims to Circuit Court. In other words, if an auto accident lawyer in Maryland files on small claim for more than $10,000 but less than $30,000 (which is the new District Court maximum as of today), the insurance company's lawyers may remove the case to Circuit Court, which generally requires a jury trial and almost invariably leads to greater expenses from both parties. This practice distorts the jury awards. I read Metro Jury Verdicts every month and half of the reported personal injury cases in Baltimore are nickel and dime cases that never should go in front of a jury. So I think this data is interesting and useless all at the same time.