Tennessee Law Blog

Amendments to The False Claims Act in 1986 as well as Tennessee’s own Tennessee Medicaid False Claims Act (TMFCA) allow qualified whistleblowers to earn a portion of the government’s recoveries (called “qui tam provisions”) when whistleblowers, known as “relators,” appropriately report their company’s defrauding the government. Two examples of False Claims Act fraud found settlement in court and received media coverage this week for their substantial moneys awarded their whistleblowers who reported the fraud.

Military Contractor Fraud

A False Claims whistleblower led Justice Department officials to investigate from a company producing inferior-quality Kevlar cloth for our military’s combat helmets for the past 12 years. This military contractor fraud investigation led to a $2 million settlement after whistleblowers’ testimony during the False Claims Act lawsuit revealed that the company under military contract was knowingly producing inferior quality goods that did not meet military specifications. Instead, they wove up to 10% fewer than the minimum safety standard of 35 x 35 strands of Kevlar in order to save on production costs and time, that is, stealing federal tax dollars to provide an unsafe product to our troops.

Defense Department officials have not presented any evidence of troop from these inferior materials, but this could be due to the helmets the cloth was used in being phased out.

The two relators for this case had previously approached management concerned about the lives they were endangering by producing the inferior Kevlar. When that didn’t work, they sued.
From qui tam provisions under the False Claims Act, the two will receive $406,350 of the government’s award.

Health Care Fraud

A district sales manager for Merck finally found completion to her 7 year False Claims lawsuit alleging billing fraud by the drug pharmaceutical maker. But the wait was worth it. Merck, the U.S.’s third largest drug pharmaceutical company, agreed to pay over $400 million in one of the largest sums ever collected by various state and federal governments. The qui tam relator will receive about $68 million.

The relator in the Merck’s lawsuit had inside information about corporate practices--information the government relies on when it contracts with or subsidizes an industry. This is especially true in the health care industries, where whistleblowers have helped recover just under $9 billion (and to the $1.4 billion benefit of the relator).

In Merck’s case, the whistleblower reported that the pharmaceutical company was using unfair pricing practices to overcharge Medicaid (tax funded healthcare for the poor).

Working with a False Claims Attorney

One whistleblower can make all the difference in the immediate lives of soldiers or in the tax dollars available for bona fide health care programs. Relators can earn upwards of 30% of the total government fraud recoveries--just for doing the right thing. As an added bonus, federal and Tennessee law protects False Claims whistleblowers from retaliation, even if their case is not won.

But protections and payoffs only come if you appropriately file your False Claims lawsuit.

To speak with either myself, Attorney Jim Higgins, or of HHP’s Tennessee government fraud specialists, fill out our quick online form or call our Nashville, TN offices at (615) 353-0930.

The Tennessee Legislature is considering a bill that would cap any nursing home neglect or abuse jury award to $300,000.00. Apparently, the legislature does not believe that we as citizens are smart enough to sit on a jury and award a sum that is in proportion to any neglect suffered by a nursing home resident. Even more important is the fact that most nursing home are for profit corporations. The only way to deter a for profit corporation is to be able to hit them where it hurts, in the pocket book. If a nursing home has no real financial responsibility for its actions it will have little incentive to behave responsibly.

I believe we would all agree that we should be responsible for our actions. My children realize that if they misbehave there will be consequences. It may be loss of a toy or to be put in time out but they realize that they are responsible for their own behavior. I do not understand why a nursing home, a place that cares for our most frail and vulnerable citizens, should be place in a privileged class to have a very limited responsibility for their actions. Also, I recognize that $300,000 is a lot of money, however, do you think it is a lot of money do a company that makes hundreds of millions. Do you think that this sum would be a deterrence if a corporation knows it can profit more by taking shortcuts and cutting staff than they would ever have to pay in a lawsuit? Also, do you think the families of residents who were abused and neglected in a home should have a specific dollar amount set by the legislature for their loss or should a jury have the ability to determine what is just? These are all important concerns that will be drastically effected by this legislation.

I will state that however you fell this is an important issue. As such, whether you are for or against this limitation please call your representative and let your voice be heard. You can locate your rep at TN gov. If you would like to discuss the issue or concerns you have with my office feel free to contact me at hhpfirm.com.

FDA recall of Baxter International’s drug heparin made the front page of yesterday’s Wall Street journal after FDA officials confirmed four deaths from the blood-thinner. The culprit appears to be a Chinese plant producing the active ingredient in heparin.

Four deaths and hundreds of allergic reactions and other adverse drug side effects have been reported, including vomiting and diarrhea. More serious injuries from the drug heparin include increased heartbeats, low blood pressure, and fainting. FDA officials state that 40% of patients taking Baxter’s heparin suffered serious adverse reactions.

Heparin, which has been available in the U.S. since the 1930s, is administered by injection to prevent blood clotting during apheresis, heart surgery, and kidney dialysis. Patients undergoing these three treatments suffer the most severe injuries from Baxter's defective heparin.

Baxter, which produces about half of all heparin used in the U.S., announced a temporary halt in production of its generic anti-clotting (blood-thinning) drug. This FDA recall and Baxter's halt is predicted to create a shortage of the heparin blood thinner to hospitals and was the reason this dangerous drug was not pulled from market earlier.

Despite last year’s recalls and public notifications of lead in children’s toys and tainted pet food, the People’s Republic of China remains the world’s largest producer of active ingredients in drug medications. Drug companies seeking cheap labor and questionable safety and work conditions produce their pills and medicines in China, which produces just over 10% of the world's drugs.

If you have been injured by a FDA recalled drug medication or other dangerous prescription drug and would like to recover your losses from hospital bills, doctors’ bills, lost wages, and for your pain and suffering caused by shady business practices of big pharm companies, HHP would like to help. To speak with Attorney Jim Higgins or another one of our local, Nashville, TN dangerous drug medication attorneys, give us a call at (615) 353-0930 or fill our drug injury legal consultation forms.

Medtronic, a medical device manufacturer who has formerly warranted a dangerous device warning in the pages of this Tennessee Law Blog, has been issued a FDA Class I Recall for a series of its defective infusion pumps.

(For explanation of why defective infusion pumps are dangerous, check out Tennessee Law Blog’s defective device article on the dangerous Alaris Pump modules.)

A Class I Recall is the most severe action FDA officials take. Class I Recalls are reserved for drugs and dangerous medical devices for which there is a reasonable probability that use will cause serious injury or death.

Medtronic’s defective implantable infusion pumps have been subject to a series of sanctions. On August 3, 2007, Medtronic sent notification letters describing the problems of these defective devices manufactured before September 1999. In these Medtronic infusion pumps, a defective pump motor has been known to stall, which means the delivery of vital drugs will suddenly stop without notice. The lack of vital drugs can result in the return of a patient's symptoms, injury to the infusion pump’s user, and, reportedly, death in cases of drug withdrawal from Intrathecal Baclofen (ITB) therapy (injections into the spine).

The models of SynchroMed EL Implantable Infusion Pump Models subject to recall are as follows:

• Infusion Pump Model 8626-10
• Infusion Pump Model 8626L-10
• Infusion Pump Model 8626-18
• Infusion Pump Model 8626L-18
• Infusion Pump Model 8627-10
• Infusion Pump Model 8627L-10
• Infusion Pump Model 8627-18
Infusion Pump Model 8627L-18

Most patients who use the infusion pump are sufferers of cancer or of severe pain.

Consumers with questions may contact Medtronic Neuromodulation Patient Services at 1-800-510-6735.

Consumers in the State of Tennessee seeking compensation for the injuries caused by Medtronic’s defective devices can call my Nashville law offices at (615) 353-0930 or use HHP’s quick dangerous and recalled medical products form.

As I write, your Tennessee representatives in Nashville are hearing arguments for putting limits to the amount of monetary awards clients can receive in Tennessee nursing home abuse lawsuits. Proponents are using the same rhetoric as they use elsewhere, ignoring nursing home deaths, neglect, and physical abuse in Tennessee nursing homes, that makes the abuser (the negligent nursing home) the victim.

Those wanting to limit compensation for Tennessee nursing home abuse and neglect lawsuits note that last year Tennessee nursing homes had the highest liability in the nation due to juries (of one’s peers) awarding too much money to those who were injured. They want to limit the decision of citizens and reduce the culpability of nursing homes.

Their solution to these "rampant" nursing home abuse lawsuits? Not better service and nursing home care, not a minimum limit on the amount nursing home abuse or neglect lawsuits should receive that would scare caregivers into proper employment and oversight practices--no, neither of these.

Their solution?

Put a set price on what your mother or father’s life is worth, what bedsores are worth, what sexual abuse is worth. Such price tags have only one purpose: Let the nursing homes guilty of abuse calculate how they can still turn a profit while allowing abuse and neglect and the subsequent occasional losses in Tennessee court.

This legislation, introduced yesterday by state Senator Jim Tracy (R-Shelbyville) and Rep. Randy Rinks (D-Savannah), aims to place nursing home abuse lawsuits under the same restrictions as Tennessee’s medical malpractice and workers comp lawsuits, thereby limiting plaintiff’s attorneys’ fees and awards for “non-economic losses” and putative damages.

The effect of such limits is to discourage Tennessee personal injury attorneys from taking nursing home abuse/neglect cases. Reducing the amounts the injured or their survivors may recover has the direct effect of reducing the quality of the plaintiff’s lawyers representing nursing home cases.

Expert testimony and case preparations are expensive, and many dedicated nursing home abuse attorneys such as myself pay these costs out-of-pocket. While nursing homes can afford high-priced defense lawyers’ fees, most of my injured clients cannot. Instead, I earn a small portion of what my clients are awarded for their or their loved one’s injuries and other damages. I then reinvest this money to be able to afford to take on the next series Tennessee nursing home abuse cases.

Meanwhile, in Ohio, where state law limits the recoveries in nursing home lawsuits, a nightshift nurse has been charged this week with raping a partially paralyzed nursing home resident and 13 other patients (though he claims to have abused nearly 100 men and women since the 1980s). These 14 accounts are those that can be verified through a review of the nursing home medical records, suggesting that evidence for this abuse existed and the nursing home is likely at fault.

Should Tennessee nursing home residents be limited like these Ohio abused nursing home residents in the recovery of their “non-economic losses”? I don’t believe that’s a question I have to answer, though it’s a question Tennessee lawmakers are hoping you won’t ask. Whever you stand let your legislature know. You can contact them at http://www.legislature.state.tn.us/.

If you suspect a loved one to be a victim of a nursing home abuse or neglect in a Nashville nursing home or any facilitated care facility in Tennessee, contact me, Jim Higgins, attorney-at-law for a free consultation. HHP’s toll-free nursing home abuse hotline is 800.705.2121 or you can fill out our TN nursing home abuse/neglect form.