Tennessee Injury Lawyer Blog

Workplace discrimination lawyers in Tennessee and across the U.S. were expectantly watching coverage or checking our Blackberries for live reports last week as Senate voted 61-36 for the Lilly Ledbetter Fair Pay Act of 2009. This important piece of legislation plugs a two-year hole in workplace pay discrimination law and Tennessee employees' rights put there by a 2007 Supreme Court decision.

Nearly two years ago, workplace discrimination lawyers and their pay-discriminated clients received a blow from the Land’s highest court when the 5-4 ruling in the case Ledbetter v. Goodyear Tire & Rubber Co. set new precedent for the already strict time limits for filing with Equal Employment Opportunity Commission (EEOC). The decision against Ms. Ledbetter--a Goodyear supervisor in Alabama who worked hard and forgave the long-term sexual harassment she encountered until nearing her retirement she learned her male counterparts had been receiving 15-30% more pay than she had over her 19 years of employment--created a 180-day limitation for filing a discrimination lawsuit. This meant that Ledbetter, and other unequal pay discriminated persons like her, cannot take action against an discriminating employer for pay discrimination if they have been discriminated against for longer than six months after the fact--even though they still earning unequal pay and may have no way of knowing what their coworkers make. Most disheartening of all, the Court’s bizarre interpretation of the discrimination law’s six-month limit stripped Ledbetter of the back pay and compensation for mental anguish a lower court had awarded her for her gender-based pay discrimination and harassment.

Last year, working under the six-month limitation the Court had created, the EEOC (U.S. agency charged with ending employment discrimination) still received 24,826 gender-based discrimination complaints. Women in the U.S. still earn 77 cents to the dollar their male counterparts make, and minority women even less. And this is the case even after the passage of the Equal Pay Act sought to balance out the pay disparities between the genders and reduce discrimination 45 years ago.

Interesting, some Senators argued against the Ledbetter Bill (Tennessee’s Lamar Alexander and Bob Corker both voted against it), suggesting that giving employees more time to discover they have been unequally promoted or unequally paid in the past (which usually means they are still receiving unequal paid at present) would increase employment lawsuits and the punitive damages awarded in pay discrimination lawsuits. Like the nursing home lobbyists and Tennessee legislators in last week’s Tennessee Law Blog, instead of forcing companies to clean up their act to avoid lawsuits for their abuses, the lobbyists and corporate lawyers want to keep the problems and do away with lawsuits. Of course, instead of facing lawsuits, employers guilty of discrimination could chose to admit their wrongs and pay backpay to correct their unequal and discriminatory workplace practices on their own. If the Lilly Ledbetter Fair Pay Act of 2009 passes the House, perhaps they will. (UPDATE (1/27/09): House passes Lilly Ledbetter pay equity bill, President to sign.)

If you’ve discovered your Tennessee, Kentucky or Georgia employer has been paying you and other employees unequally based on your gender or race, my fellow Nashville-based workplace attorneys and I would like to offer our services. Give us a call at 1.800.705.2121 or complete our workplace discrimination form. Initial consultations with our employment lawyers are always free of charge.

Nashville Business Journal reports Tennessee nursing home officials are pressuring Tennessee Legislature to limit damages awarded to plaintiffs in courts.

Tennessee remains 1 of 16 states without caps on damages on how much abused TN nursing home residents, or their survivors, may recover, leaving such decisions to Tennessee juries and Tennessee judges to determine. But last year, the Tennessee House and Senate saw a nursing home bill that would limit non-economic damages, such as severe pain, emotional distress, and disfigurement, and limit the amount of punitive damages a company operating a negligent/abusive Tennessee nursing home would pay. Now, in 2009, Tennessee law makers will see another such nursing home bill.

The nursing home special interests have an interesting argument. They believe negligent and abusive nursing homes should only be liable for “real” damages, that is, only the abused’s hospital bill for broken bones or the ointment used to treat the pressure sore (click here for more signs of TN nursing nursing home abuse). In other words, bruises from being punched or kick or roughly handled might result in no emergency room treatment or hospital stay, so there’s no real “damage” being done. Their other argument: paying their nursing home abuse damages makes running a nursing home in Tennessee more expensive.

So, instead of improving care to reduce abuse/neglect lawsuits, nursing home companies want to cap their losses.

After the closing of the Tennessee State Veterans Home in Murfreesboro last year and Tennessee nursing homes' dismal CMMS ratings (third worst in the nation), it’s a shock to me that nursing home representatives think they have a foot to stand on. Centers for Medicare and Medicaid Services (CMMS) evaluated data from 319 Tennessee nursing homes and gave over a third its lowest rating of one star (10 of those Nashville-area nursing homes).

Tennessee’s nursing homes need real improvements, not get-out-of-jail free cards. When you’re dealing with nursing home owners, you’re primarily dealing with large nursing home chains owned by investment groups who are looking to cut corners and increase profits for investors. As I’ve blogged here on the Tennessee Law Blog and spoken about on Tennessee Mornings in an effort to get the word out, nursing home companies don’t listen to angry letters or change their minds after seeing pictures of bedsores or unsanitary conditions, they listen to dollars and cents.

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. Call our Nashville, TN offices using our toll-free nursing home abuse hotline at 1.800.705.2121 or fill out our TN nursing home abuse/neglect form to speak to an attorney.

With the unfortunate news of more layoffs from another large company, Circuit City, it is important for all Tennessee employees to be informed of potential help they may have in these hard times. One benefit many employees are unaware of is the ability to reopen an old workers compensation claim if you are laid off. As such, if you had a prior workerman compensation claim and you are being terminated due to the economy you may be able to reopen you claim.

If you think this may apply to you, feel free to call our Nashville, TN law office with any questions you may have about TN workers comp claims.

Atypical antipsychotic drug Zyprexa, after an 18-month drug injury investigation into manufacturer Eli Lilly's unsafe off-label marketing to vulnerable elderly and young patients, is expected pay a $1.42 billion settlement, $362M of which will go to 32 states, including Tennessee, and the District of Columbia.

Zyprexa was FDA approved in 1996 for treatment of bipolar disorder and schizophrenia in adults but the company has since marketed the drug for off-label (unapproved, often untested) uses. These include Zyprexa for treatment lesser psychological problems, such as behavioral problems, and prescription to children and the elderly patients. (More details on Zyprexa side effects and dangerous drugs at my law firm’s Defective and Potentially Dangerous Drugs site). An estimated 26 million patients worldwide have taken Eli Lilly's "wonder drug" Zyprexa.

Zyprexa was marketed as the next generation of anti-psychotic drugs called atypicals. Creators of atypicals claimed that severe psychological disorders like schizophrenia could be treated with drugs like Zyprexa with few, minor side-effects. Yet not all these new drugs developed accurate testing for long-term side effects, such as Zyprexa's side effect of rapid weight gain and diabetes in select populations. In one tragic case in Atlanta, Georgia (previously covered in Tennessee Law Blog’s “Southern Man’s Death Linked to Zyprexa”), a middle-aged bipolar man died after significant weight gain during his five years of taking Zyprexa. Eli Lilly has already spent $1.6 billion to settle over 30,000 product-liability lawsuits from people who developed diabetes or suffered from other unintended side effects of Zyprexa. And yet Zyprexa not only remains on the market but remains the company’s best selling drug.

The present Zyprexa settlement developed out of two qui tam whistleblower cases against Eli Lilly. As Medicare, Medicaid, and other government-funded hearth care programs were involved in the targeting of sales to the elderly, the federal government accepted the False Claims lawsuits against Zyprexa, which resulted in the then largest qui tam settlement in False Claims Act history.

Though the drug was not approved for geriatric patients, in at least one case, Eli Lilly urged medical staff to use Zyprexa to zonk unruly nursing home residents. According to court documents, Zyprexa's salespeople suggested doing so would reduce "nursing time and effort". Doctors were also urged to prescribe Zyprexa to patients with dementia, including Alzheimer’s, even though the drug is not FDA approved for such patients.

Zyprexa remains available to Medicaid patients, and most of Zyprexa’s sales are to the federal government. If the announced settlement does not go through, Eli Lilly may be barred from Medicaid and Medicare programs.

While Zyprexa has been subject of lawsuits, other drug makers such as Cephalon Inc. (read Tennessee Law Blog's entry on the Cephalon qui tam lawsuit settlement) have been subject to criminal and injury lawsuits and others such as AstraZeneca (Seroquel) and Johnson & Johnson (Risperdal) are under government investigations related to alleged off-label promotion of antipsychotics.

If you've suffered injury from a prescription drug, my drug injury attorneys and I can help. Initial contact can be made by completing our drug injury attorney form for Tennessee, Georgia, and Kentucky, or by calling our Nashville law offices toll-free at 800.705.2121.

The Tennessee Supreme court recently attempted to clarify an issue we often see in workers compensation cases. This issue arises when someone has a pre-existing problem, such as arthritis, and a work accident causes the condition to become worse. The issue becomes is the now work related pre-existing injury that is not covered under the TN comp act or is it compensable.

In an attempt to clarify the issue the supreme court stated that for the work injury to be compensable there must be a progression of the underlying condition. Specifically, the court held: "if the injury advances the severity of the pre-existing condition,or if, as a result of the pre-existing condition, the employee suffers a new, distinct injury other than increased pain, then the work injury is compensable."

The difficulty in many of these cases falls on having a doctor testify that the condition has become worse. Often they will say the condition is only more painful. This new case will have an interesting and uncertain impact on increased pain cases. There were cases that said if the new injury caused an asymptomatic condition to create disabling pain then it is compensable. This new case seems to dance around that specific issue just a little. So we will now have to see how the lower courts, the doctors and lawyers deal with this new clarification of a confusing section of the Tennessee Workers compensation act.

If you have a workmans compensation case that was turned down as a "pre-existing or degernative condition feel free to contact my office to discuss. Generally, we can order and review your medical records to determine where you stand. If you would like for us to review your case just contact our Nashville Law Office.

FDA drug and medical device officials are continuing their efforts into 2009 with FDA recalls of two dangerous products: the pain patch Duragesic (fentanyl) and a Class I Recall of the ophthalmic medical device Healon D. In both cases, the FDA recall was limited to specific lots of affected, and dangerous, medical products.

The current Duragesic (fentanyl) pain patch recall is on a smaller scope than the previously issued in February 2008 Duragesic recall Tennessee Law Blog had reported. Johnson and Johnson, whose PriCara division’s ALZA Corp produces the fentanyl pain patch, recalled two lots of potentially dangerous Duragesic last week. These recalled dangerous drug patches may contain flaws in the patch that expose users to an immediate and full dosage of the active ingredients, potentially causing trouble breathing and opiate overdose.

Affected by the FDA recall are Duragesic 50 mcg/hr patches in lot number 0817239 as are Sandoz Inc. 50 mcg/hr patches in lot number 0816851.

Last year’s Duragesic recall of nearly 32 million fentanyl Duragesic Pain Patches with the potential to overdose its wearer was initiated not for tears but for excess dosage in the pain patch.

The other major FDA recall, Healon D, which is under a Class I recall (reserved for products that the FDA believes can "cause serious health problems or death"), is due to a chemical agent in the cornea transplant product already linked to optical patients’ eye problems. In addition to cornea transplants, Healon D, an ophthalmic viscosurgical device (OVD), is also used in cataract removal and other ophthalmic procedures.

Manufacturer Advanced Medical Optics has had a Healon recall on lot number UD 30654 in effect since November 2008, but only two-thirds of the recalled product have been returned. The manufacturer has received 66 reports of negative reactions from what appears to be elevated levels of endotoxin (toxins caused by decomposing bacteria) in the drug and of Toxic Anterior Segment Syndrome (TASS), a type of acute inflammation typically occurring within 12–24 hours of cataract surgery.

If you have been injured by a defective medical device or dangerous drug medicine in Tennessee, Georgia, or Kentucky, contact the medical injury lawyers at our Nashville, TN offices by phone (615.353.0930) or by completing a quick prescription drug/medical injury lawyer contact form.