Why is it that medical malpractice is seen (at least by some in our civic discourse) as a terrible scourge afflicting our society, driving up medical costs and clogging our court system with meritless lawsuits, some say?  But other kinds of professional malpractice seem almost invisible? Isn’t it ironic that medical malpractice claims, normally brought, of course, by lawyers, are singled out as particularly pernicious but legal malpractice… Continue reading →

A few weeks ago, Minnesota Litigator queried as to why medical malpractice claims are a widely discussed form of civil litigation but legal malpractice claims are relatively uncommon and inconspicuous but shied away from offering an explanation, which may have been wise self-restraint.  Now that is cast aside. The most obvious explanation for medical malpractice claims far outnumbering legal malpractice claims is that there are many more medical… Continue reading →

…s of the drug, an antibiotic. Levaquin included a warning but sometime after Schedin’s incident, the warning was changed and made more prominent (made into a “black box” warning in 2008).  Subsequent warning label changes would be a classic “subsequent remedial measure” inadmissible at trial if it were not for the fact that the label change was mandated by the FDA, U.S. District Court Judge John R. Tunheim has held. … Continue reading →

The interesting fact pattern that gives rise to the problem in this case is what are the duties of a generic drug manufacturer if, after a drug’s initial federal approval (and approval (and then mandated use) of a specific warning label), new information comes to light about potentially harmful side effects?  Can a claim be brought against the manufacturer under state law for failure to warn? Gloria Mensing took a medicine, MCP, a gene… Continue reading →

… cure the disease, and the company happily refunds the purchase price to that percentage of its customers who contract the disease (with a percentage of the payments from the healthy customers, of course). Pharmaceuticals and medical devices in this country are highly regulated to prevent such scenarios. Such a business model (healthy payors subsidize the unlucky subset of the sick payors) bears a resemblance to insurance, another heavily regulat… Continue reading →

cure the disease, and the company happily refunds the purchase price to that percentage of its customers who contract the disease (with a percentage of the payments from the healthy customers, of course). Pharmaceuticals and medical devices in this country are highly regulated to prevent such scenarios. Such a business model (healthy payors subsidize the unlucky subset of the sick payors) bears a resemblance to insurance, another heavily regulat… Continue reading →

…g debt-holders like Wells Fargo (“Checking and Much More“), State Farm Insurance (“Like a Good Neighbor, State Farm is There“), Kohl’s Department Store (“Expect Great Things“), myriad medical service providers (medical bills are often the origin of unpaid debt), or any business that sells a service or product to the public and would prefer not to be associated with the collection of debt. The inherent cha… Continue reading →

…never served discovery seeking the settlement agreements? At least in one recent federal court decision: (1)  Yes. (2)  No. (3)  No. For this post, Minnesota Litigator wanders outside its jurisdiction to highlight Volumetrics Medical v. Toshiba America Medical Systems, et al., a recent case from the U.S. federal court in the Middle District of Tennessee, where this issue came up.  The court’s analysis (Mag. Judge L. Patrick Auld) is straigh… Continue reading →

, motions to exclude experts (brought by defendants), and a motion to add a claim for punitive damages (brought by plaintiff). Summarizing the detailed 68-page opinion which should be required reading for anyone interested in medical device products liability, Judge Schiltz ruled in favor of Biosense, the original manufacturer, because it seems that plaintiff was unable to identify any actual problem with the catheter prior to its refurb.  For th… Continue reading →