Tennessee Injury Lawyer Blog

I’ve been covering the tainted, dangerous Baxter-Chinese heparin recall, in our Tennessee Law Blog since the story broke in February. While dangerous heparin remains, its circulation is finally diminishing. From 1 January to 31 March, 93 heparin-related deaths were reported to the FDA, and yesterday FDA officials stated that they’ve completed their review. And reporting on these heparin-injuries and deaths, the FDA played it conservative.

Three heparin related deaths were undoubtedly caused by tainted heparin; what the FDA reported on the remaining 90 is an unsettling reminder of how our Food and Drug Administration is not a proactive testing regulatory agency with our nation’s health at its foremost but a political regulatory agency that drags its feet whenever they must be moved.

This is the first time since the Baxter recall that the FDA has allowed themselves to state conclusively that any deaths were caused by the tainted heparin. These three persons each had an infusion of the blood thinner which led to an adverse allergic reaction and the loss of life.

The three deaths were among ten patients who had an allergic reaction to heparin, specifically its contaminant (oversulfated chondroitin sulfate) that tainted the recalled Chinese heparin, but FDA officials were unable to say whether or not the other seven deaths were from the heparin lots that were known to be tainted. They only know that reaction to the contaminant caused the deaths--so these were not counted as caused by Baxter's contaminated Chinese heparin. This is similar to detectives stating that they know the homicide victim died of massive blood loss from a bullet wound, but because no bullet was found in the body, they cannot state with certainty the man with the smoking gun was responsible.

Of the remaining 83 tainted heparin deaths reported in those three months, FDA officials dismissed 25, leaving 58 losses of life attributed to heparin but not from allergic reaction. Because heparin may have contributed to factors leading to a loss of life but heparin did not alone cause the death, FDA officials didn't count them conclusive.

So when the FDA reports three deaths due to tainted heparin, what is meant is that these three deaths cannot possibly be from another cause that could cast doubt. It does not mean Baxter’s questionable business practice of buying heparin from unregulated Chinese villages led only to three deaths.

If you were one of the over 1,000 people on dialysis, undergoing heart surgery, or other medical procedure and injured by tainted heparin, I’d like to know about it. Give our Nashville law offices a call at (615) 353-0930 or fill out our quick heparin injury attorney question form.

Earlier this month, Tennessee Law Blog reported on a nursing home sexual abuse case just across the Tennessee border in Hopkinsville, KY. There, a male attendant confessed to sexually abusing two nursing home residents, one who was mentally incoherent and the other physically handicapped; this was suspect not to be the only instances of sexual assault. (Click to read the original Tennessee Law Blog.)

Recently, I can’t mention nursing home abuse to other nursing home lawyers without having my fellow attorneys weighing in on resident-on-resident sexual abuse. Various state and federal proposals are now being considered that would isolate nursing home residents who are known sexual predators to separate care facilities.

Lawmakers in Florida are considering legislation similar to measures passed in Kansas that will require criminal background checks on nursing home applicants. One advocate for the change in nursing home admittance, Sandy Banning in Florida, has been working for this nursing home measure ever since her mother in Jacksonville nursing home was victim to sexual abuse. The assailant, who had been arrested 58 times during his 83 years of life, was a fellow nursing home resident. Banning’s mother had dementia and did not remember the sexual assault, but nursing home staff stumbled upon the sexual predator in the mother’s bed after the wheelchair-bound man managed to gain access to her room and use his cane to bar entry into the room where the sexual abuse took place.

Banning, quoted in one article, has stated, “I’m mad. I’m mad because nothing has been done.” Ms. Banning has every right to be mad and to get things done. What’s to be done, though, to improve nursing home conditions and to prevent abuse, including sexual abuse, is open to debate.

Proponents of the Kansas and Florida nursing home measures believe that separate facilities must exist for sexual predators. By isolating abusers, they believe nursing homes will be safe--or at least those nursing homes reserved for those who pass the background. Presumably for proponents, sexual attacks between sex offenders, even reformed sex offenders, or persons who at one time were was found guilty of a sexual crime, is fine. What these nursing home measures do not address, and what gets to the issue deeper than segregation, is the quality of care all nursing home residents deserve and should receive. As an interestingly aside, the very Florida bill Banning proposes would not have isolated her mother’s assailant to another nursing home to prevent his sex crime; the nursing home resident’s history of sex crimes had occurred before sexual predator registration laws were enacted and the Florida bill does not require current nursing home residents to have background checks. While these nursing home measures may help prevent sexual abuse and, if designed humanely for all nursing home residents (even the 1,600 registered sex offenders in U.S. nursing homes), these restrictions can be a step forward, what these laws fail to address is responsibility of the nursing home to provide adequate supervision and care to all its residents.

The worst part of nursing home abuse of a sexual nature is that they should never happen. Responsible staff know where residents are, know who their residents are and where they should be. This, and silence by the resident, is why instances of sexual abuse in Tennessee nursing homes go unreported.

Many residents who are victims can feel guilt about the act and a sense of powerlessness that keeps them from speaking up. Our law offices handle and are presently handling Tennessee nursing home abuse cases, including nursing home sexual assault. Too often negligent Tennessee nursing homes fail to perform sufficient background checks and training of their staff. Also regrettable, nursing homes do not always have measures in place, or the staff to put what’s on the books into practice, to prevent resident-on-resident sexual assault and abuse.

If you suspect your loved one of suffering nursing home neglect, or believe a Tennessee nursing home has permitted or tried covering up a sexual assault on a nursing home resident, give HHP a call at (615) 353-0930 or fill out attorney form to report the injury to a Tennessee nursing home attorney.

Tennessee big rig truckers know that every two years commercial drivers need a physical to renew their commercial driver’s license or “CDL”. This CDL examination ensures the driver is in good health--or at least in good enough health to drive a big rig or a school bus. A federal study released Monday by the Government Accountability Office reveals that over half a million commercial drivers who’ve passed their CDL physical are either eligible for, and many already receive, full disability benefits from the federal government.

In GOA’s study to be presented tomorrow during the House Transportation Committee hearing on trucker’s health and safety, researchers reviewed the medical records for CDL holders in 12 states, including Tennessee. What they found was that more than 562,000 bus drivers and truckers passing their CDL physical may be a danger on the road because of disabilities ranging from epilepsy to impaired hearing and vision. In Tennessee, about 1 in 20 licensed semi-truck and bus drivers are actively receiving full disability benefits—and nearly half of these disabled persons were considered fully disabled when they passed their test to be a Tennessee bus or truck driver. As the report states:

Commercial drivers with serious medical conditions, even those whose conditions qualify them for full federal disability benefits, can still meet DOT medical fitness requirements to safely operate a commercial vehicle and thus hold CDLs. However, there is general agreement that careful medical evaluations are necessary to ensure that serious medical conditions do not preclude the safe operation of a commercial vehicle.

The GAO report remains tactful by suggesting, as the Department of Transportation states, that it is physically possible to drive a semi-truck while qualifying for full disability benefits, but the report does advise caution and reconsidering standards for the safety of our nation's drivers. As the report states, approximately 5,000 citizens die every year from tractor-trailer truck accidents, and over 125,000 more drivers are injured from truck or bus collisions. DOT’s own studies show that 12% of commercial driver-caused crashes were caused by the driver falling asleep, having a seizure or heart attack, or other reported physical impairment. To save Tennessee Law Blog readers the math, that could mean 530 people with loved ones still alive and walking the earth, and that’s over 13,000 bus or truck-related car crash injuries that never should have been. (Click for more from HHP on Tennessee truck collision lawsuits.)

Even more painful for those who are injured or lose a loved one I have met through these trucking accident lawsuits, most truck drivers walk away from these collisions relatively uninjured--except, I suppose, for whatever persisting medical conditions had qualified them for full disability.

Special federal and Tennessee safety laws and rules apply to truckers, including fitness examinations and semi-truck maintenance records. As one of the few Tennessee attorneys unafraid to take on the trucking company lawyers, I know what to look for in the trucking company's records and accident reports to reconstruct the collision and determine the trucking company’s negligence in the crash. If you have been seriously injured or have lost someone in a semi-truck collision, call me at my Nashville, TN law offices at (615) 353-0930 or fill out HHP’s Tennessee legal action form to speak with me or other qualified trucking collision lawyers.

Recent events make it imperative that people who are injured in train wrecks need to act extremely fast to preserve video evidence. Routinely, railroad companies keep surveillance footage of their tracks and trains as they run routes. This surveillance footage can be invaluable to a person attempting to establish what happened in any particular train collision with a vehicle or pedestrian. Oftentimes, the event unfolds quickly, the train is big, and moving at a very high rate of speed. Due to these circumstances it is often very difficult for witnesses or individuals on the scene to determine what happened or even for the authorities to recreate the scenario in their investigation of the matter. To further complicate matters, railroads like CSX Transportation have a policy in place that video surveillance footage is taped over 96 hours after it’s initially shot. Further, there is no policy in place by the railroad companies to preserve any footage even if the collision involves a fatality.

This is amply illustrated in the case of a Nashville resident who was found dead on the train tracks in East Nashville on May 31, 2008. According to an article in the Tennessean, Michael Redbear’s body was discovered on the train tracks at 9:00 a.m. when a passing railroad conductor saw the body and called 911. CSX officials reviewed their train logs and determined that potentially five trains passed over the body of Mr. Redbear after he was on the tracks. Unfortunately, CSX failed to act quickly to preserve any footage from the event that lead to the demise of Mr. Redbear. The only video that they were able to salvage and turn over to the authorities showed that at least one train passed over his body after he was already killed. This means that despite the fact that they have video surveillance available, they knew of a fatality where someone was likely killed on their tracks, they were alerted of the fatality on the morning it was discovered, CSX failed to preserve any tapes that could show what happened.

From a practical standpoint, this means that people who are injured at the hands of the railroad need to act quickly to preserve their evidence. 96 hours, or four short days, is all that the railroad company will keep surveillance tapes. Despite this being easily accomplished, railroad companies do not have a policy in place to insure that video surveillance tapes are kept when there is a horrific injury or death involved. They apparently make no effort in the first 96 hours to locate and preserve the tapes. Is it because that would be a burdensome chore or because they do not want people to see what actually happened or if they are at fault? This is a classic exmaple of why we make preserving evidence a priority on all of our cases.

In various nursing home abuse articles for Tennessee Law Blog and my various appearances on Tennessee Mornings, I have attempted, as a successful nursing home abuse lawyer, to communicate how nursing home lawsuits and fear of lawsuits help deter future cases of abuse and neglect in Tennessee nursing homes. Yesterday, news sources reported on a federal trial that I have been following closely, a case that shows how nursing home abuse lawsuits often lead to learning of more abuses. In this case, the ultimate result was prosecution of three corporate thieves that left their nursing homes unsafe and promoted abusive conditions so that they could line their pockets with moneys meant for taxes and providing quality nursing home care.

The three nursing home executives are finally facing sentencing at the end of what one U.S. Attorney has claimed to be one of the largest payroll tax fraud cases in the U.S. history. Prime culprit Gary Trebert faces ten years and a $500,000 fine and restitution after he and his two co-conspirators used the names of fictional companies and forged documents (including fake nursing facility licenses and Medicaid contracts) to take over 70 licensed nursing home facilities. Their deceitful business practices affected 6,000 nursing home residents and approximately 4,500 employees from Iowa to Texas.

By falsifying records, the three were able to scam the numerous nursing homes they owned through 150 fictitious corporations they created, ultimately defrauding U.S. taxpayers of $34 million. Investigations into charges of nursing home neglect and abuse led investigators to this discovery of fraud and how the stolen moneys were siphoned from their nursing homes to pay for the executives’ luxury cars, monthly international trips, and antiques.

From the federal court’s investigation, nursing home moneys that should have gone to providing quality care were also diverted by these white-collar criminals, moneys that would have funded proper supervision and prevented negligent care and abuse such as when one 54-year-old resident burned to death in his wheelchair at a facility that had been regularly fined for neglect and failing to meet basic health standards. At other nursing homes owned by the three, caregivers allegedly left a man in his own feces and urine for three hours until he died; caregivers left another resident in his feces and urine for so long that his skin came loose when he was finally moved; and in various cases caregivers failed to prevent thefts from residents or physical abuse.

If survivors and relatives of these abuses were forced to keep quiet because they signed arbitration provisions (one of the reasons I support the Fairness in Nursing Home Arbitration Actpresently in Congress) or did not have the courage and dedication to pursue their respective nursing home abuse cases, these three executive crooks would likely still be free and their nursing homes perpetuating the horrors happening in Tennessee worst nursing homes. Even if you only have a suspicion of abuse or neglect, I advise you to contact my Nashville law office to speak with a lawyer about suspected nursing home abuse. Click here for our nursing home abuse attorney form or give our lawyers a call at (615) 353-0930.

A security guard charged with protecting the elderly and disabled in a Nashville apartment building, stood idly by while a third man beat a resident with a stick and kicked him in the head.

On June 19, Lonnie Hutton, a resident of Vine Hill Towers, was severely beaten while security guard, Everett York looked on. In fact, it is reported that York participated in the assault by distracting Hutton so that the beating could take place.

Vine Hill Towers is owned by the city of Nashville which employed KRC Security to guard the residence and the tenants. Curiously, KRC Security was hired by the Metro Davidson Housing Authority even though the company’s security license has expired. Of even greater concern is the fact that KRC Security hired Everett York in spite of the fact that he had no license to be a security guard and he was a sex offender.

How could Metro have been so negligent as to hire a security company with an expired license? How many of our fellow citizens are being “guarded” by security guards that are unqualified, unlicensed, and with alarming criminal histories?

Tragically, these sorts of incidents are bound to continue if apartments complexes continue to sacrifice the safety of their residents by hiring security guards and security companies without the appropriate background checks. Our firm has handled multiple cases where security guards failed to do there job. Weak training requirements mandated by the State of Tennessee do not help. More stringent training requirements and background checks should become necessary immediately. If you have questions about a similar case feel free to call my office.

Police in Hopkinsville, Kentucky have charged a male nurse assistant with sexually abusing two female patients at a nursing home, Bradford Heights Center. Police believe that more victims may exist. The police believe Rodriguez Durr took advantage of two elderly women who couldn't defend themselves because of their age and health.
Important advice from one visitor: "Make sure you always see on your elderly people," said Eva Barnes, a visitor at Bradford Heights Center. "They need to be talked to sometimes. They need to be loved."

Unfortunately, our office has handled and is currently handling cases involving sexual assaults and abuse at nursing homes. Some important questions to be answered for this family will be: what type of background check did the nursing home perform on this employee? What type of training is given to all employees to look out for this criminal behavior? What steps are taken to prevent the abuse and neglect of these nursing home patients? Is this home more worried about profits than they are their residents?

If you have a loved one that has been the victim of nursing home abuse or neglect, please feel free to call our office. These residents are our most vulnerable citizens and they deserve to be treated with respect and care.

Wage and hour law is back in Tennessee legal news after car wash workers at local Shur-Brite locations filed a wage-based federal lawsuit filed under the Fair Labor Standards Act against the Nashville company in May for unpaid wage from the company's unfair timecard practices. As of July 4, over 50 present and former car wash employees have joined in the wage and hour lawsuit that would require payment of wages withheld by Shur-Brite’s allegedly illegal pay practices.

According to both the Nashville City Paper and The Tennessean who have covered this story, the wage and hour lawsuit alleges that Shur-Brite High Speed Car Wash owners knowingly, and illegally, forced employees to clock out when there were no cars to wash; on slow days, workers would be forced to clock out as often as 10 times during the day. Many workers would be at the car wash site for over 40 hours a week but only get paid for 15 at Tennessee’s minimum wage of $5.85 an hour. Some workers put in twelve hours days hoping to get paid for eight. Many it was unclear to workers when they were on or off the clock and not earning minimum wage.

Who would want this kind of job? Well, probably no one wants a job where they’re unfairly paid, but it appears many law-abiding people need it. These needy persons include those who know no better, such as teenagers, and those in need of immediate employment, including persons on parole or probation, former convicts with records that keep them from better paying jobs, and people whose unemployment has run out. Perhaps, as some claim, the convicts and many homeless whom Shur-Brite employed are paying their debt to society, but we have wage and hour laws in our democracy to prevent unfair pay practices, and the rights of our labor laws apply to all, as exploitive employers across the country are learning.

The present Nashville wage and hour lawsuit against Shur-Brite mirrors a class action lawsuit filed two months ago in Los Angeles against four California car washes for failure to pay minimum wage, to provide overtime pay, and to allow breaks and meals. It also reflects the growing number of federal lawsuits being filed under national wage and hour laws, which more than doubled between 2003 and 2006.

Unless you’re a wage and hour attorney, you’d be amazed how quickly unpaid hours add up, especially overtime hours, and how much pay an unethical employer can withhold through illegal timecard pratices. I’ve worked a number of these claims, including class action lawsuits to see that wrongly categorized Tennessee construction workers have receive the proper pay for their work through Tennessee’s prevailing wage law.

If your employer frequently changes your weekly schedule or does not pay you for work-required activities, you may have a wage and hour lawsuit on your hands. If your Tennessee employer requires you to be on-site but doesn’t pay you for this time, then you should speak with a wage and hour attorney about a possible wage and hour lawsuit. If your Tennessee employer has docked your pay, repeatedly refused to pay you overtime, or required you to work without pay, then you most definitely need to speak with one our Nashville-based employment law attorneys.

Typical settlement and court awards include backpay for unpaid wages, including overtime, liquidated damages, and attorney’s fees. To speak with a Higgins, Himmelberg & Piliponis wage and hour attorney about Tennessee labor law or to report illegal pay practices by a Nashville or other Tennessee employer, give us a call at (615) 353-0930 or fill out our quick wage and overtime attorney form.