Tennessee Law Blog

Nursing home abuse, as readers of the Tennessee Law Blog know, is a too-common tragedy in our great country and has its source in nursing homes neglecting not just their patients but their staff and quality of service. The greatest deterrent to nursing home abuse has always been the threat that owners have felt of financial repercussions that a nursing home’s abuse or negligent will bring if pursued by a personal injury attorney. Tennessee nursing home regulators, underfunded and understaffed, cannot provide the security that fear of an experienced nursing home abuse lawyer brings.

Unfortunately, many nursing homes have found a way of avoiding lawsuits, not by improving the quality of elderly care, but by forcing residents to sign arbitration provisions. These provisions, often part of hundreds of pages of its fine print sorted through and signed to admit a loved one to Tennessee nursing home care, forces the resident to settle disputes about abuse, malpractice, and negligence in private arbitration.

This means a nursing home’s negligent or abusive acts will not go to Tennessee court where they will be heard by a judge or compassionate jurors but by a private judge, often a lawyer paid by the nursing home. Not only does this removes the financial incentive and fear of a nursing home abuse lawsuit but, to make matters worse, these “impartial” arbitrators, who earn money by repeat business from the nursing home, have the financial incentive to side with the Tennessee nursing home in arbitration matters. Additionally, costs of arbitration, including attorney’s fees, are often born by the family as there is not the financial incentive for personal injury lawyers to take the case as recoveries are below what jurors will award.

As a nursing home abuse attorney who hears the horrors of too many Tennessee long-term care facilities, I wholeheartedly support our United State Congress to move forward with the Fairness in Nursing Home Arbitration Act, S. 2838 and H.R. 6126.

This Fairness in Nursing Home Arbitration Act, if passed, will allow families, not the nursing homes, to choose freely whether they want to arbitrate or bring the case to an open court of law. This bill further invalidates those who have unwitting or by nursing home pressure any mandatory arbitration provisions of a nursing home or assisted living organization.

Government studies show that 20% of nursing homes are negligent to a degree that puts nursing home residents at risk for serious injury or death. Working with those injured in Tennessee nursing homes, this number seems low. Perhaps this is because of arbitration, which is often held behind closed doors. Arbitration decisions are rarely published and this further hides Tennessee cases of abuse and neglect.

By removing the right to sue in public court, nursing homes have swept instances of abuse under the rug. The Fairness in Nursing Home Arbitration Act will allow Tennessee families to know if and when a nursing home is providing inadequate or abuse care. Furthermore, it will ensure abused and neglected nursing home residents their civil right to a hearing as well as the care they deserve.

After years of limiting the rights of our elderly who have been abused in Tennessee nursing homes, it is time we empower our elderly Tennesseans with their full rights under the law. These rights include the right to make public abuse and acts of wrongness against oneself. These rights include the right to fair and safe treatment. These rights include the right to sue.

Heparin deaths have now reached at least 149 Americans from dangerous, recalled Chinese heparin with many more injured. The tainted heparin blood thinner causes allergic reactions leading to serious injury and death.

Baxter International, which once provided half all heparin in the US, issued a total recall of its heparin in January after reports of the blood thinner’s contamination. Made from pig intestines, heparin as a blood thinner is used to flush out IVs, used in oxygenators and medical devices during bypass surgery, and will be injected in some standard medical procedures. The tainted heparin contains an adulterate (that is, Baxter bought heparin that had a cheaper ingredient substituted for pure heparin). Many believe the relaxed manufacturing standards of China where Baxter outsourced production of its heparin responsible for the defective heparin. Tainted heparin has also been recalled in Germany, Italy, France, and Japan.

While FDA officials have direct evidence for 149 death caused by tainted heparin, over 250 heparin-related deaths have been reported. Nevertheless, any sudden or untimely death of a loved one that might be heparin-related should be investigated by a qualified drug injury attorney.

Allergy-type reactions caused by tainted heparin include troubled breathing, nausea, vomiting, and loss of blood pressure. This is due to the substitution of oversulfated chondroitin sulfate (OSCS), a cheaper and illegal substitute for pure heparin. Despite the dangers, FDA officials report that some hospital and health care providers have not complied with heparin recall instructions. From laziness or negligent oversight, dangerous heparin still remains in storage, emergency kits, and dialysis machines, according to FDA reports.

If you believe you or a loved one has been injured by an adverse heparin reaction, contact me, Tennessee personal injury attorney Jim Higgins, by phone at (615) 353-0930 or fill out our online form for a free legal consultation with our Nashville law firm. Higgins, Himmelberg & Piliponis is a Nashville-based law firm with offices in downtown Nashville and offers legal services to clients throughout Tennessee.

St. Louis-based ETHEX Corp. issued a recall this weekend of its morphine sulfate pillstoday after discovering some tablets have as much as double their safe size. This unsafe size can be responsible opiate overdose from the life-threatening excess of morphine.

(NOTE: This should not be confused with the earlier digitek recall for similar unsafe manufacturing errors.)

The specific tablet lots subject to the ETHEX recall were of the 30 and the 60 milligram (mg) varities of the morphine sulfate tablets. These defective tablets have been on the market from for just under two years, June 2006 and May 2008. The 30 mg ETHEX morphine sulfate tablet is oval-shaped and pink with “30” on its front and “E” on its back. The 60 mg ETHEX morphine sulfate tablet is also oval-shaped and has an “E” on its back but is white with “60” on its front.

Potential drug injuries from morphine overdose include difficulty breathing, low blood pressure, and hypotension. Many of these side-effect injuries can be life-threatening.

FDA officials are helping the ETHEX Corporation with this recall of these potentially dangerous morphine sulfate pills from market.

Morphine sulfate tablets are a Schedule II narcotic of the opiate family used to relieve extreme pain.

If you believe you or a loved one has suffered injury from this dangerous morphine pill and would like to pursue legal action against those responsible for ETHEX morphine sulphate injury or death, call HHP at (615) 353-0930 or fill out our drug injury initial response form for a free consultation with myself or one of our other qualified, Nashville drug injury lawyers.

Just west of Tennessee, down Texas way, an Oklahoma hospital will have to answer for its lack of adequate security on its premises after four years of appealing a crime victim's lawsuit. Last week, the Oklahoma Supreme Court decided 5-4 that St. John Medical Center in Tulsa would have to defend itself in a lawsuit filed by one of its nurses. This nurse, unnamed because of her status as a sex crime victim, was kidnapped in the hospital's parking garage.

Parking garages are hotbeds of crime, even in broad daylight, and the kidnapped nurse’s attorney has shown that the hospital was aware of previous violent criminal activity in the parking garage, including assault, battery, kidnapping, and muggings. Despite this knowledge, the hospital did little to improve security on their premises or to deter crime. Their failure to improve security after these assaults, this inadequate security lawsuit alleges, was what allowed for the nurse to be kidnapped and raped when she left her car.

Property owners are responsible for the safety of those invited on their premises, including visitors and employees. Just as the injured has a right to sue for damages for negligence leading to injury if property owners do not warning of a broken stairs or other warn or prevent other foreseeable events that could lead to injury, so, too, does state law, including Tennessee law, allow a victims injured by violent crime, to sue the premises owners if there has been a history of violent crime and the property owners took little or no reasonable measures to prevent future injuries or crime.

Surprisingly, the Oklahoma Supreme Court only narrowed decided that business owners can be held liable for damages if they are aware of recurring criminal activity on their premises and do not take measures to prevent it. Even after all the horrors of violence in the parking garage where the nurse was abducted and raped, the hospital did not increase security. A single security guard watched over 25 monitors, but only one monitor was dedicated to images of the parking garage. The security guard failed to notice the rapist’s van circling the parking garage or that the van’s license plate had been covered with duct tape. And still, the high court nearly decided not to hold liable the allegedly negligent hospital as owners of the dangerous parking garage.

If you were a victim of violent crime and believe you are victim of a Tennessee property owner's failure to address a history crime on their premises, you may be able to sue for damages. To file a Tennessee inadequate security lawsuit, certain conditions must be met beyond being an assault, robbery or rape victim. Fill out Tennessee personal injury lawyer form to speak with me, Attorney Jim Higgins, Nashville native and personal injury attorney in the State of Tennessee. Or give me a call at (615) 353-0930 for a free consultation.

It is estimate that hundreds of contact lens wearers and dozens of Tennesseans injured by ReNu with MoistureLoc and Complete MoisturePlus contact lens solutions remain unaware of the recall of these 1-step lens cleaning solutions and the serious injuries these solutions caused. Class action and individual lawsuits by Tennesseans are still being filed against Baush & Lomb and AMO, the respective lens solution makers, to compensate injured contact lens wearers for the dangerous operations, their pain, and loss of vision caused by defective lens solutions.

AMO’s Complete MoisturePlus injuries were caused by Acanthamoeba keratitis (AK), a water-borne parasite that can lead to serious debilitating eye infections. ReNu with MoistureLoc (manufactured by Bausch & Lomb) no-rub solutions were recalled because the fungal infection Fusarium keratitis. Eyes of sufferers of these severe eye infections become irritated, sometimes with very sharp, stinging pains like grains of sand in one’s eye. The infected eye may ooze or become red and swollen. Many injured Tennesseans who suffered were dismissed by their doctors who suggested the patient might have swum in dirty pools or had unclean eye habits.

Both these contact lens products were subject to Class 1 recalls after demonstrating a reasonable chance of serious adverse health consequences. While FDA administrators have alerted health care professionals and some users of soft contact lenses about the recall, recent court findings have suggested these manufacturers chose to not act responsibly in notifying consumers and retailers about the dangers of their contact lens care products. Additionally, the South Carolina plant manufacturing ReNu with MoistureLoc had been cited by FDA inspectors a number of times for failing to maintain health compliance.

Now, after years of 1-step, no-rub contact lens cleaners causing injuries, necessitating injury lawsuits and recalls, FDA officials have decided to review contact lens cleaners in June. While the culprit remains the failure of AMO and Bausch & Lomb to check the quality of their contact lens solutions, FDA investigators are also looking at improving labeling to have customers to "rub and rinse" lenses before storage to remove germs. Studies suggest the older, peroxide-based cleaners with a two-step cleaning process are better at cleaning and removing dangerous parasites. But it’s hard for the manufacturers of Complete MoisturePlus and ReNu with MoistureLoc to turn a profit on the tried, tested, and true; a faster buck’s made by advertising what’s new and easy to use--even if easy and new leaves you with a glass eye and hospital bills.

CAUTION ALL CONTACT LENS USERS: You should never reuse old lens solution or mix new lens solution with old. Nor should you rinse your contact case with anything other than solution. This step should be taken by all contact lens wearers; rinsing with water instead of solution may be related to the Complete MoisturePlus lens solution recall as the parasite’s spreads in the presence of water.

Working with our Nashville personal injury lawyers can help you recovery wages from missed work, hospital bills, and loss of quality of life that eye injuries and that Renu’s and MoisturePlus’ bacteria caused. HHP has the expertise to take on the big company lawyers. Call me, Attorney Jim Higigns, at (615) 353-0930 for a free initial consultation or contact us through the Tennessee personal injury form.

Recently, Adam Villegas, as killed while trying to leave Marathon Sports Bar in Nashville, Tennessee. According to police, a security guard employed by SecurityWise, shot Villegas through the open driver's side window of his Saturn Ion after the men argued in the parking lot. According to the paper, Holmes told police the victim had a lot to drink and that he was worried Villegas was going to hit him with the car.

Unfortuantly, I have been involved in several cases involving the excessive use of force by a security guard. Although it is uncertain as to whether the use of force was justified in this case it is certainly an event which should be investigated closely. This should also bring to light the incredible lack of regulations as to arm security guards in Tennessee. Tennessee requires only minimal training before a person can become a "qualified" armed security guard. The public would be outraged if our police were allowed to enforce our laws with only a minimal amount of training yet why is there no concern about an armed guards being allowed to protect the public with such limited requirements.

I also believe that it is not only unfair to the public but also unfair to the guards themselves. To give someone a firearm and expect them to natural be able to react appropriately under a high pressure situation is unfair to both the guards and the public.

If you have questions surrounding a excessive force case or inadequate security matter feel free to contact our office.

FDA officials ate crow last week as actor Dennis Quaid spoke before the House Oversight panel. Quaid, whose newborn twins nearly died after being given unsafe heparin, spoke passionately against FDA officials' claims that FDA-approval was the ultimate, end-all proof that a drug’s safe. Quaid supported personal injury lawyers of dangerous drug lawsuits, stating:

"I used to think lawsuits were frivolous. Now I know the courts are the only path."

The hearing, called "Should FDA Drug and Medical Device Regulation Bar State Liability Claims?", heard medical and drug injury figures, such as the Institute of Medicine’s estimate that 1.5 million U.S. citizens suffer injury from medication mistakes every year. In the case of Quaid’s 14-day old children, the unsafe dosage was given because Baxter, the heparin manufacturers, had not changed the labels to clearly identify the heparin dosage levels--a measure the drug company drug its feet on until it faced lawsuits for the deaths of three infants in an Indiana hospital.

The House hearing was in response to a Bush Administration initiative that would eliminate the ability to sue for recoveries in drug injury lawsuits. The Administration has argued (and recent Supreme Court decision suggests) that drug and medical device companies should not be held liable for injuries caused by their drugs or medical products if they are FDA approved. The House hearing was to evaluate this insane proposal. But perhaps even more maddening that the FDA’s own statement that any product that meets its standards for approval should not subject to state liability laws.

This is not merely a matter of big pharmaceutical companies being in bed with the FDA or simply more rhetoric of tort reforms that distort the purpose of personal injury law (i.e. making those found liable in court for injuring innocent people pay for the real cost of those injuries), but represents a larger and graver matter: the rights of individual American citizens over those of powerful corporations.

Readers of the Tennessee Law Blog do not need to be reminded of the various failings of the FDA over the decades to see why denying the right to sue for medical device, food, or drug injury damages is just darn ludicrous. That these discussions can even be thought reasonable to occur is insulting to those who in the past three years have been fatally injured by defective infusion pumps, permanently blinded by fungal infections from recalled ReNu contact lenses, or potentially fatal fentanyl overdose from duragesic pain patches. And what of Vioxx and the slew of other FDA-approved drugs that have killed or injured Tennesseans because of their negligence?

Even David Kessler, ex-FDA commissioner (1990-97), testified that the FDA does not have the resources to detect emerging risks from approved (but dangerous) drugs or medical devices and that states should not be told that their citizens cannot sue drug and medical manufacturers for recoveries.

If you or a Tennessee loved one has suffered a medical device or prescription drug injury, you deserve compensation from those responsible for your injury. Contact HHP today to speak with a TN prescription drug/medical device injury attorney.

Expensive, uncomfortable, and potentially debilitating. That’s the cure. The cause is the blinding infection Fusarium keratitis and the culprit is ReNu with MoistureLoc, a contact lens causing eye injury in Tennessee and the other 49 states.

FDA and ReNu recalled all ReNu with MoistureLoc products over a year ago, but cases of eye injury continue to arise and Tennesseans in Nashville and throughout Tennessee continue to seek legal aid and representation to recover moneys for corneal transplant surgery (also known as corneal grafting or penetrating keratoplasty).

As the FDA wrote in its initial release of the contact lens recall:

This is to update you on the rare but serious eye infection in people who wear soft contact lenses. There has been a recent increase of reports in the U.S. of this infection. The infection is fungal keratitis, caused by the Fusarium fungus. It can cause a permanent loss of vision. Several patients with this infection have needed corneal transplants to save their vision.

In a corneal transplant, a dead but otherwise healthy cadaver’s cornea is cut out and grafted onto a living but infected person’s eye. This surgery has become more common as eye surgeons rush to prevent permanent blindness caused by the fungal infection (fusarium keratitis) found in the unsafely manufactured ReNu with MoistureLoc contact lenses. These defective contact lenses are believed to have cause loss of vision quality, blindness, and corneal ulcers.

If you have one of these symptoms, do not allow ReNu to get away with causing severe infections with their MoistureLoc brand of contact lenses. Though the company has stopped shipment, if you use Renu MoistureLoc Contact Lenses, stop immediately.

(Following this recall and for customer safety, FDA officials and optometrists advise all contact lens wearers rub and rinse their lenses even when “no-rub” contact lens solution is used.)

If you believe you or your Tennessee loved one are among the hundreds who have suffered from wearing defective ReNu MoistureLoc contact lenses, give me, Nashville Attorney Jim Higgins, a call at (615) 353-0930. You can also fill out our online form for a free legal consultation with our Nashville law firm about how you can be part of the ongoing ReNu MoistureLoc lawsuits and settlements in Tennessee.

Follow-up to Tennessee Law Blog’s 02-05-08 Heparin Recall Article.

Concerned that not all health care providers have recalled their medical products containing unsafe Chinese heparin, FDA officials again notify health care professionals about the FDA heparin recall. FDA has sent notices to various clinics and doctors about the recall of injectable heparin medicines. The cause for the FDA recall was dangerous contamination of heparin by oversulfated chondroitin sulfate.

Ordered earlier in February of this year after at least 81 people died from what are suspected to be defective heparin-related deaths, the FDA believes that quantities of this unsafe blood thinner used in heart surgeries and dialysis. FDA regulators suspect there is still contaminated, recalled heparin in storage areas, emergency kits, and dialysis units.

Despite this recall of China-produced heparin, FDA officials prefer to keep their orders private, having signed confidentiality agreements with the drug companies. These agreements make it illegal for the FDA, the highest U.S. authority in regulating drugs and charged with providing protection from dangerous drugs, to reveal the names of companies who purchased potentially tainted supplies of Chinese heparin and who are not adhering to the heparin recall.

Meanwhile, the price of heparin goes up. USA Today reports that the price of the blood thinner has doubled since last month, according to dialysis centers throughout the U.S. This is due not only to recalls in the U.S. but throughout the world where the dangerous Chinese heparin was sold.

APP Pharmaceuticals became the U.S.’s only supplier of heparin for surgeries and dialysis after the FDA heparin recall. While APP Pharmaceuticals also purchases heparin from China, its heparin appears to not contain the potentially fatal contamination found in the heparin cut by Chinese suppliers with a cheap counterfeit ingredient.

While demand for the limited heparin supply is part of driving heparin costs up 100%, the Chinese suppliers also raise their prices to meet and ensure basic safety standards, according to the USA Today article. In other words, or in my words, the cheap heparin upon which Baxter made its profits at the cost of providing its American customers an unsafe product is only now coming to cost its real market value for cheap labor and lack of oversight.

If you believe you might have a heparin injury lawsuit resulting from dangerous, FDA recalled heparin, contact me, Nashville attorney Jim Higgins, at (615) 353-0930 or fill our drug injury legal consultation forms for our legal services spanning Tennessee.

FDA officials announced a nationwide recall of the heart drug Digitek (digoxin), last week. Nashville patients with heart problems were made safer by the recall of these generic heart drug tablets used to treat abnormal heart rhythms and heart failure.

Digitek is distributed by Mylan Pharmaceuticals, Inc. under the Bertek label.

On April 28, 2008, the corporation responsible for this dangerous heart drug, Actavis Totowa, LLC, announced along with FDA officials this nationwide Type I Drug Recall after tablets were found to have double the thickness in size. This increased heart pill size poses a significant health risk of poisoning the heart patient from Digitalis toxicity.

Poisoning by this recalled heart medicine causes various unpleasant reactions. Digitalis toxicity causes in heart patients taking the dangerous medicine:

• vomiting


• nausea


• dizziness


• low blood pressure


• cardiac instability

The heart medication dangers were caused by irregular manufacturing practices (much like the imported and dangerous heparin drugs reported in this earlier Dangerous Drug Tennessee Law Blog). Digitek’s dangerous side effects pose the highest health dangers to heart patients with renal failure and low blood pressure.

Digitek is widely distributed through mail-order medication business and large retail pharmacies like those at Nashville-area Wal-Mart and Target. The Class I Drug Recall requires Digitek not be sold and requires heart drug patients return their remaining supplies of the dangerous drug tablet.

While only 11 persons have been reported as sick, many of the symptoms may have been hidden by doctors who attributed injuries to old age instead of the dangerous heart medication.

If you believe you or a loved one has suffered injury from this dangerous, recalled heart drug and believe you would like to pursue legal action against those responsible for this Digitek injury or death, call HHP at (615) 353-0930 or fill out our drug injury initial response form for a free consultation with myself or one of our other qualified, Nashville drug injury lawyers.

For years the medical and insurance lobby in Tennessee has been trying to place financial caps on medical malpractice cases. In attempting to sell this legislation the lobbyist argued that it would stop "frivolous" lawsuits. Our legislature, however, realised that a cap would do nothing to prevent frivolous cases. It would just give the medical community and insurance companies a privileged status in society to avoid responsibility for their actions. Large verdicts are not given for frivolous lawsuits. However, large verdicts only correspond with large damages and reckless conduct.

The Tennessee legislature now has passed legislation that will help prevent frivolous medical malpractice suits. At the same time it will not put artificial limits on valid medical malpractice suits. The bill requires attorneys to give all medical providers who may be named in a malpractice suit at least 60 days notice before filing a lawsuit, and to file a "certificate of good faith" that the claim has merit. The certificate is to be filed within 90 days after the lawsuit is filed. It is based on an evaluation by an independent medical expert. Judges could sanction plaintiffs and their attorneys who they feel have acted in bad faith.

As a lawyer that represents medical malpractice victims, I applaud this legislation. Any responsible lawyer will gladly comply with this new law.

Nursing homes in Tennessee are regulated by the Tennessee Department of Health (TDOH). TDOH takes an active role in investigating complaints made by nursing homes residents and the friends and families of residents. TDOH also performs annual surveys on nursing home facilities to ensure that proper care is being given to residents and to attempt to reduce the risk that residents will suffer from neglect or abusive behavior from staff members at the facility or from other residents within the facility. The surveys also deal with nursing home staffing levels, administration of the facility, nursing services, resident assessments and social services standards at the facility. The evaluation of these important elements is used to determine the overall level of care that the residents receive. By using these surveys and corrective measures following the surveys, including fines, limiting admissions, and even suspending admissions, the TDOH takes proactive steps to force nursing homes to provide the level of care that the residents need and deserve.

Recently, TDOH conducted a complaint investigation and Annual Survey at Palmyra, Tennessee based Palmyra Health Care Center. In response to the report issued following the review, TDOH suspended admissions at the facility and assessed fines against the facility. Specifically, the TDOH report found 18 deficiencies - four of which were deemed as immediate jeopardy to the residents. The immediate jeopardy issues stemmed from the facility's failure to develop and implement a plan to prevent residents from suffering abuse at the hands of other residents that suffer from mental health and psychosocial behavioral problems. Also, the report noted that there was no plan implemented to prevent such residents from harming themselves, staff or others at the facility. The suspension of admissions to the facility and the retroactive fines levied against the facility are significant measures taken on behalf of TDOH to address the problems at this facility.

If you have concerns about the treatment of a loved one in a nursing home facility feel free to call our office. If we can't help we can usually point you in the right direction.