To Settle, or Not To Settle: That is the question

September 15, 2014 by Jim Higgins

So your lawsuit has been filed, depositions take and a trial date set. You are preparing yourself to tell the jury what you have been though and then an offer to settle comes from the defendant. Do you take it or go to trial? What a hard decision to make but a decision that our injury clients have to make all the time. As a lawyer when this happens I feel it is my job to make sure my client makes an informed decision. They need to know what is involved at trial, what do I think will be a likely outcome and why I see it the way I do. However, it is ultimately my client's decision. They are the boss.

I was recently interviewed about this common dilemma. You can watch the interview below:

In general, here are some of the factors my clients will consider when determining whether to settle:

TIME: Lawsuits take time and we all know that a dollar today is worth more than a dollar a year from now. As such, everyone needs to consider how long the litigation will take when considering an offer. Is it likely worth the wait? How far away is trial? These are all questions that come into play when considering an offer.

COSTS: The Higgins Firm will front all the costs on our car accident cases, however, not all of the costs are recoverable at trial. As such, the costs can reduce the net recovery. Because of this we don’t spend money unless we feel it will make our client more money but again these are factors in that need to be considered.

STRESS: Jury trials can be stressful. Car Accident Trial Lawyers love going to court but most of our clients had rather be with their family or at work than explaining their life to a jury full of strangers. That being said it is a wonderful system. We have found over the years that when we have a case that needs to go in front of the jury most juries can tell our clients are good honest people who have generally never been in a lawsuit. Regardless, this is a factor that will be considering when determining whether to settle a serious injury lawsuit or taking it all the way through trial.

FUTURE LOSSES: When considering whether an offer is fair we also need to consider whether the money will cover future damages. These may include future surgeries, time off work, lost wages, pain and suffering. Sometimes it may be difficult to know if future medical treatment will be needed so we rely on medical experts to help us with this question. Obviously there is no crystal ball but a good doctor can tell us whether surgery or future medical problems are likely.

FAIRNESS: This one is hard to explain but there is often a component of does the offer seem “fair” in light of what you have been through and what you are going through. Obviously, all of my clients would have rather of never been injured in the first place so to some extant there is no amount that is “fair”. However, you need to consider what a jury would likely think is reasonable. That can be a tough call but something you must consider when determining whether to accept an offer.

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Pharmacist Linked to Deadly Meningitis Outbreak Arrested

September 5, 2014 by Ryan Simmons

Glenn Adam Chin has become the first person to face criminal charges in connection with the federal investigation into the 2012 fungal meningitis outbreak caused by the New England Compounding Center. Yesterday, Chin was arrested at Logan International Airport in Boston, Massachusetts as he was about to board a flight destined for Hong Kong. He has been charged with one count of mail fraud related to the outbreak at the facility. While it is unclear whether or not Chin was attempting to flee the country to avoid prosecution, Paul Shaw, Chin’s lawyer, has stated that Mr. Chin was merely going to Hong Kong to attend the wedding of family friend.

Glenn Chin, 46, was the supervising pharmacist at the New England Compounding Center during 2012. He was in charge of the sterile rooms at the facility and making sure that the facility’s rooms and equipment were properly cleaned, sterilized and tested. It was during Chin’s tenure as supervising pharmacist that NECC manufactured and distributed steroid shots that were contaminated with black mold. As a result, countless patients across twenty three states—including Tennessee—were exposed to fungal meningitis. To date, 750 patients have contracted the illness, 64 of whom have died.

The U.S. Attorney’s Office has not yet filed any other charges in the matter, but continues to mount an investigation into the outbreak and additional charges against Chin and others are expected. Additionally, hundreds of people have filed civil suits against the NECC over the last two years. In late 2013, a preliminary settlement in the amount of $100 million was reached; however, this has not been approved by the courts as of yet.

In a statement made Thursday, the U.S. Attorney’s Office explained that Chin is being charged with “participating in a scheme to fraudulently cause on lot of [the steroids] to be labeled as injectable, meaning that it was sterile and fit for human use, and shipped to one of NECC’s customers.” At Chin’s arraignment Thursday, the prosecutor explained that Chin was aware that he was a suspect in a criminal investigation and failed to notify the authorities of his trip out of the country. Chin has been placed on home confinement for the time being and has been ordered to surrender his passport, as has his family. A probable cause hearing will be held on September 11, 2014.

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Pharmacist Linked to Deadly Meningitis Outbreak Arrested

September 5, 2014 by Ryan Simmons

Glenn Adam Chin has become the first person to face criminal charges in connection with the federal investigation into the 2012 fungal meningitis outbreak caused by the New England Compounding Center. Yesterday, Chin was arrested at Logan International Airport in Boston, Massachusetts as he was about to board a flight destined for Hong Kong. He has been charged with one count of mail fraud related to the outbreak at the facility. While it is unclear whether or not Chin was attempting to flee the country to avoid prosecution, Paul Shaw, Chin’s lawyer, has stated that Mr. Chin was merely going to Hong Kong to attend the wedding of family friend.

Glenn Chin, 46, was the supervising pharmacist at the New England Compounding Center during 2012. He was in charge of the sterile rooms at the facility and making sure that the facility’s rooms and equipment were properly cleaned, sterilized and tested. It was during Chin’s tenure as supervising pharmacist that NECC manufactured and distributed steroid shots that were contaminated with black mold. As a result, countless patients across twenty three states—including Tennessee—were exposed to fungal meningitis. To date, 750 patients have contracted the illness, 64 of whom have died.

The U.S. Attorney’s Office has not yet filed any other charges in the matter, but continues to mount an investigation into the outbreak and additional charges against Chin and others are expected. Additionally, hundreds of people have filed civil suits against the NECC over the last two years. In late 2013, a preliminary settlement in the amount of $100 million was reached; however, this has not been approved by the courts as of yet.

In a statement made Thursday, the U.S. Attorney’s Office explained that Chin is being charged with “participating in a scheme to fraudulently cause on lot of [the steroids] to be labeled as injectable, meaning that it was sterile and fit for human use, and shipped to one of NECC’s customers.” At Chin’s arraignment Thursday, the prosecutor explained that Chin was aware that he was a suspect in a criminal investigation and failed to notify the authorities of his trip out of the country. Chin has been placed on home confinement for the time being and has been ordered to surrender his passport, as has his family. A probable cause hearing will be held on September 11, 2014.

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Warning Signs of a Bad Nursing Home

August 29, 2014 by Ryan Simmons

When it comes time to start thinking about putting a loved one in a nursing home, people generally devote a great deal of time and effort to searching for the “best nursing home in town.” However, it might actually save some time to start by looking for the signs of a bad nursing home first. To that end, MSN recently published an article titled “5 Traits of the Worst Nursing Homes.” Looking for these so-called “red flags” might help you narrow down the list of potential nursing homes and possibly prevent unnecessary harm or hassle.

The first trait to look for is a history of violations at the facility. Nursing homes are regulated at both the federal and state government levels, and so records of their noncompliance with guidelines and other applicable rules are usually fairly easy to access. Doing a little background research should help you determine which facilities have a reputation for violating the rules. One resource to use is Medicare.gov. This website allows you to search by zip code and compare a number of different nursing homes in one area. U.S. News also runs a website that allows you to search for nursing homes across the entire country. Each facility is rated on a scale from one to five based upon the results of state health inspections, the amount of time nurses spend with resident, and overall quality of medical care. Other websites to check include ProPublica.com and SeniorAdvisor.com.

The second warning sign of a negligent nursing home is severe violations. It is important to note not only a facility’s record of violations, but also the severity of said violations. One violation for resident abuse is obviously much worse than four or five violations for cobwebs in the rafters or some similarly innocuous violation. Put the violations into perspective as much as possible.
Next, you should be aware of the rate of staff turnover. If a nursing home is constantly hiring and firing its employees, that should tip you off that things aren’t running smoothly. Look for facilities where the key employees and/or staff member have worked there for fifteen or twenty years. Additionally, if possible, try to observe employee/resident interactions to see if residents look comfortable and employees seem contented.

Fourth, consider the level of independence afforded to residents at each facility. It is actually beneficial to a nursing home resident’s health to have some level of freedom to make decisions about their own day to day life. Consider the following questions: are residents allowed to decorate their rooms? Are residents provided with activities to choose from? Are residents treated as adults and not talked down to? The answers to each of these questions could help you perceive how your loved one will be treated when you are not around.

Finally, trust you gut. If you feel uneasy or unsure about a particular nursing home, then it probably is not the best choice for you and your loved ones. Simple things like cleanliness of common areas and appearance of staff members can be indicative of a facility’s overall standard of care. Don’t discount your first impressions of a facility—trust your instincts.

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New Tennessee Workers Compensation Act Goes Into Effect.

August 9, 2014 by Jim Higgins

The new Tennessee Workers Compensation Act has gone to effect as of July 1, 2014. Unfortunately the practice impact of the new act is that permanently injured workers will now receive between 25% adn 75% less for any life changing permanent injury. All of this was done under the banner of being more "business friendly". Unfortunately, this comes at a cost which we place on the backs of our working men and women.

I was recently interviewed about the new law. You can watch it below:

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Are Tennessee’s Courts for Sale?

August 8, 2014 by Ryan Simmons

After last night’s election, it is clear that the efforts of the out-of-state group that was attempting to oust three Tennessee Supreme Court justices have failed despite the group’s aggressive campaign. Tennesseans did in fact vote to retain Chief Justice Gary Wade, Justice Cornelia “Connie” Clark, as well as Justice Sharon Lee. However, according to recent polling numbers, the justices only secured roughly fifty seven percent (57%) of the votes, which is one of the smallest margins of victory in the history of Tennessee’s retention elections. While a victory nonetheless, last night’s election has drawn attention to a serious issue facing Tennessee’s courts—the role of politics in our judicial system.

Tennessee Lt. Gov. Ron Ramsey was one of the most vocal supporters of the effort to remove the Supreme Court justices, but he wasn’t alone. The movement had a significant number of financial backers. Ostensibly the group’s supporters wanted to oust the justices because they are “liberal,” “soft on crime,” and “supporters of Obamacare.” However, it appears that Ramsey and other group members were merely trying to get rid of current court members in order to have successors appointed who would be more sympathetic to their causes.

A prime example is that of National HealthCare Corp. (NHC). NHC owns and operates a number of nursing home facilities across our state and was one of the group’s backers. NHC donated $25,000 in June alone. Interestingly, NHC is a frequent fixture in Tennessee’s civil courts, as it must defend the many abuse and neglect lawsuits filed against it each year. Needless to say, our courts do not always rule in their favor, and the corporation has a clear motive to shake up the make-up of the high court.

This is not, however, the way our judicial system was set up to operate. Our retain/replace elections were intended to be a check on our judges based on their actual job performance and whether or not they were upholding the Tennessee Constitution fair and impartially. We do not want the giants of the nursing industry to have the power to remove qualified and respected jurists merely because they have the money and influence to do so. Fortunately though the state’s voters proved that, in the words of Justice Connie Clark, “justice is not for sale in Tennessee.”

Stryker Hip Replacement Litigation

August 1, 2014 by Ryan Simmons

The litigation concerning Stryker Orthopaedics’ Stryker Rejuvenate and Stryker ABG II hip implants continues as more and more patients are noticing problems with their “neck and stem” hip implants. In fact, there are currently nearly six hundred lawsuits pending nationwide against Stryker Orthopaedics. Since July 2012, when the company voluntarily recalled these two metal hip replacement components, patients have become increasingly more concerned about their Stryker devices.

Stryker Orthopaedics marketed the Stryker Rejuvenate and Stryker ABG II hip implants as being revolutionary and “next generation” in the world of hip replacements. Their designs were significantly different than the hip implants on the market at the time. However, Stryker apparently did not conduct any safety testing on the devices before they were sold to the general public. Only a few years after they were first introduced, Stryker recalled the implants due to patient complaints of pain and swelling in the areas where the implants were inserted. It was found that the implants were causing the release of metallic debris into the blood stream and into nearby tissue.

The fundamental flaw of the Stryker implants was that the metal devices were corroding inside the patients and releasing particles into their bodies. This led to heavy metal toxicity in those patients. Metal toxicity can cause serious symptoms such as: chronic pain, infections, gastrointestinal issues, dizziness, numbness, and mood swings, among others. Additionally, conditions such as necrosis and osteolysis can occur as a result of the release of metal debris into the body.

In light of the severe complications associated with Stryker’s hip implants, hundreds of patients have filed suit against the manufacturer. Plaintiffs are alleging that the devices are defective and have led to serious tissue damage, and in some cases, painful surgery in order to remove the devices. Further, many plaintiffs are alleging that Stryker knew or should have known that the devices were unsafe.

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Litigation Concerning the Drug Xarelto

July 25, 2014 by Ryan Simmons

Lawsuits concerning the prescription drug Xarelto (rivaroxaban) might be increasing in the coming months due to the discovery of serious side effects associated with the drug. Xarelto, a new blood thinner on the market, was approved by the United States Food and Drug Administration (FDA) in 2011. It is manufactured by Bayer and marketed as a Janssen Pharmaceuticals product (a subsidiary of Johnson & Johnson). Recently, however, reports of uncontrolled bleeding linked with the use of Xarelto have been reported. In 2012—only a year after the drug was first approved—reports of serious bleeding events and death were attributed to the drug. Additionally, incidents of increased blood clots in patients taking Xarelto have been noted.

Uncontrolled bleeding is not an altogether uncommon side effect of blood thinners. In fact, uncontrolled bleeding has been associated with many other blood thinner, including the drug Pradaxa, in the recent past. To date, over two hundred Pradaxa lawsuits have been filed by patients who experienced this dangerous side effect firsthand, or their family members. Furthermore, the Institute for Safe Medication Practices has stated that blood thinner medications are some of the most dangerous drugs on the market, causing the highest number of side effects. Unfortunately, the litigation concerning other blood thinner medications only heightens the concern over Xarelto. Many experts in the field fear that Xarelto may already be headed towards a fate similar to Pradaxa.

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Pradaxa Lawsuits Settle for Millions

June 3, 2014 by Ryan Simmons

The litigation surrounding the well-known drug Pradaxa finally reached a resolution last month when Boehringer Ingelheim Pharmaceuticals, Inc., the drug’s manufacturer, settled the pending lawsuits for 650 million dollars. Pradaxa, otherwise known as dabigatran, is an anticoagulant that has been on the market since October of 2010. The drug is intended to be used for the prevention of strokes and blood clots in patients with atrial fibrillation and works by thinning the patient’s blood. It was introduced in 2010 as a competitor to warfarin, a different anticoagulant that is known to cause several undesirable and debilitating side effects. Furthermore, in addition to its numerous side effects, warfarin also typically requires frequent doctor visits and considerable lifestyle and diet changes in those who take it. Pradaxa, on the other hand, was developed to be a safer and more convenient alternative.

By the middle of 2010, nearly four million patients were being prescribed Pradaxa in the United States alone. That same year, Boehringer Ingelheim Pharmaceuticals, Inc. made $1.5 billion in sales of Pradaxa. Unfortunately, not long after its FDA approval, Pradaxa began to be blamed for the deaths of hundreds of patients taking the medication. The primary complaint was hemorrhaging and uncontrollable bleeding. To date, over four thousand lawsuits have been filed in the U.S. against the pharmaceutical company for complications experienced while taking the medication.

Following the results of a number of investigations—including one by the FDA—Pradaxa was not definitely found to be responsible for these deaths and/or medical complications. Unfortunately, a conclusive result is not likely, because bleeding complications are a risk involved with taking any of the anticoagulants on the market. Nevertheless, on May 28, 2014 Boehringer Ingelheim Pharmaceuticals, Inc. decided to settle the thousands of pending lawsuits by agreeing to a $650 million civil settlement. The company’s Head of the Legal Department and General Counsel stated that they stand behind Pradaxa and while they feel the plaintiffs’ claims lacked merit, they decided to settle the cases in lieu of enduring protracted litigation.

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Suspected Nursing Home Abuse in Nashville, Tennessee

May 23, 2014 by Ryan Simmons

Recent allegations have emerged concerning the quality of care being provided at Green Hills Health and Rehabilitation Center—a nursing home facility located in the heart of Nashville, Tennessee. According to one source, the facility experienced a gastrointestinal viral outbreak on one of their floors during March of this year. Apparently, as a result of the outbreak, nearly twenty patients contracted the illness, suffering from symptoms including nausea, vomiting, diarrhea and fever, among others. One patient who contracted the virus became septic and died shortly thereafter due to the sepsis and related respiratory failure. Allegedly, the outbreak was caused by substandard sanitation and hygiene conditions at the facility. Furthermore, the facility was seemingly badly understaffed.

Unfortunately, this incident is not the first example of inferior care provided by the Green Hills Health and Rehab staff. According to a survey conducted by the Centers for Medicare and Medicaid Services of the Department of Health and Human Services, Green Hills Health and Rehabilitation Center received a two out of five overall rating on an inspection conducted on June 5, 2013. This score means that the facility is rated below average overall based on health inspections, nursing home staffing and quality measures. The inspection revealed that the facility was in violation of a number of the federal rules governing nursing homes.

The violations discovered at Green Hills Health and Rehabilitation Center by the CMS inspection included the following breaches: (1) failure to maintain visual privacy for residents, (2) failure to maintain the confidentiality of residents’ medical records, (3) failure to promote an environment that enhanced the residents’ dignity, (4) failure to ensure that residents’ maintain necessary personal hygiene, (5) failure to revise care plans for residents, (6) failure to accurately identify pressure ulcers and follow physician orders for treatment of pressure ulcers, (7) failure to ensure the facility is free from medication error rates of five percent or greater, (8) failure to ensure food was prepared, stored or served under sanitary conditions, (9) failure to ensure medications are stored in a secure manner, and (10) failure to ensure employees were free from communicable diseases. Clearly this facility has a history of failing to properly adhere to the rules and regulations required of them by the federal government.

Each of the violations described above is a form of nursing home abuse. Residents at long term care facilities and nursing homes are guaranteed certain rights. Specifically, residents have the “right to be free from verbal, sexual, physical, and mental abuse, corporal punishment and involuntary seclusion.” The staff is supposed to ensure that residents are properly cared for by providing adequate amounts of food and water, ensuring proper hygiene, and ensuring that residents remain free from falls, among many other things. The failure to perform these simple acts amounts to neglect, the most common form of nursing home abuse.

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Tennessee Construction Accident Lawsuit

May 13, 2014 by Jim Higgins

Recently a widow filed a multimillion dollar wrongful death lawsuit here in Tennessee after her husband was killed in a construction accident. I was recently interviewed about this case. Construction accident cases always create complex legal issues. There tends to be a lot of finger pointing and the Tennessee Workers Compensation Law shields many of the employers. You can watch my interview on the topic below:


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Nursing Home Operators Hiding?

May 5, 2014 by Ryan Simmons

The average nursing home resident likely perceives a formidable opponent when he or she initiates an abuse or neglect suit against a long-term care facility, and with good reason. Nursing homes and their operators are considerably more familiar with the litigation process than the average plaintiff. They know the ins and outs of defending a lawsuit, while the plaintiff typically must rely completely on his or her attorney for guidance. This imbalance, however, might soon be shifting.

One of the ways nursing home operators have achieved the upper hand in nursing home abuse /neglect lawsuits is through the very organization of their corporate structures. The use of so called “catch-me-if-you-can” corporate structure has allowed some nursing home operators to avoid lawsuits by, in essence, hiding. The layered ownership scheme essentially breaks up the corporations that own and operate the nursing homes into tiny pieces so that plaintiffs have no one substantial to sue. The operators are able to “hide” in the confusion and ultimately avoid financial liability for their wrongdoings.

This corporate shell game may be forced to end soon due to federal and state law changes though. The Affordable Care Act, or “Obamacare,” is one such law attempting to require nursing homes to answer for their actions. Changes under Obamacare are expected to require extensive reporting of management and ownership of nursing homes. Required reporting would make it much more difficult for nursing home operators to remain anonymous, thereby making it easier to hold them accountable. A bill pending in Connecticut is another initiative pushing for transparency of ownership. The bill would require a facility to reveal the identity of any “related party”—including companies that own the facility properties and those that provide rehabilitation services, etc.—as well as the parties’ financial status. Furthermore, the bill requires the reporting of the profits from all side business which exceeds $10,000 a year. These changes, like the federal changes, benefit plaintiffs by thwarting negligent nursing home operators’ ability to escape liability.

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