California Injury Attorney Blog

Patient Warning: da Vinci Surgical Robot Maker Issues Urgent Notice

Fri, 10 May 2013 08:51:48 -0800

Intuitive Surgical, which makes the da Vinci surgical robot has just issued a notification, but not just any notification, this one is marked urgent and it is making national news. We learned of this independently, because we closely follow the issues with these devices and represent those injured during robotic surgeries. As robotic surgery injury lawyers, with expertise in the safety issues related to da Vinci robotic devices, we want the public to know of this danger.

The company's "urgent medical device notification" is intended to warn hospitals and physicians that the maker has "identified a potential issue" with the device. The maker wants medical professionals to know that internal burns can result from the use of one of the robot's instruments. We want our readers to know about this danger.

Surgical injury cases have been on the rise and the safety of the da Vinci Robotic device has been an issue for some time. This urgent notification states that there are "micro-cracks" in some of these devices. The problem is focused on what are called "monopolar curved scissors" which the maker is now stating may leak and then create "a pathway for electrosurgical energy to leak to tissue during use and potentially cause thermal injury." In other words, the device can burn the patient's tissues.

A major concern relating to this is that the micro-cracks are likely not going to be visible to the medical professionals using the device in surgery ... they are too small to be seen. Although the company has yet to confirm specific injuries to patients, they have issued this notification. We call it a warning to patients and to medical professionals -- patients must be made fully aware of the risk of injury and if they are injured they should contact legal professionals for guidance.

The company has also included Precautions and Warnings for Usage of the EndoWrist Monopolar Curved Scissors as part of the urgent notification. Medical professionals need to understand this additional risk, even taking these "precautions" and must inform their patients of the risk of internal burns. If patients are injured during such a surgery, whether they have been informed of the risk or not, they need to protect their legal rights and get additional medical support.

Bay Area Mourns After Tragic Limo Fire

Thu, 09 May 2013 16:10:53 -0800

There are times in our community when tragedy strikes and we all feel it. The horrific limo fire and loss of life on the San Mateo-Hayward Bridge last week is felt by many across the Bay Area. So much so that the California Highway Patrol has asked that the public mourn in ways other than placing memorials on the bridge where the accident happened. This itself presents a road hazard that could lead to more injuries and accidents.

In our work as California injury and wrongful death lawyers, we have counseled many families after serious and fatal injuries have occurred. The family and friends of those killed and hurt in this tragedy will have a very long road ahead to deal with the scope of what has happened.

There were nine women in the limo as it traveled on the bridge. Smoke apparently began in the back of the limo and some of the women attempted to get the driver's attention about it. He misunderstood and then realized that there was smoke in the back of the vehicle. He pulled over, but the situation worsened quickly and the smoke quickly turned to fire. Only four of the women were able to get out of the limo and survived this terrible accident. The other five were not able to leave the vehicle.

Part of the reason this accident has reached the hearts of so many is that the victims were on their way to a bridal party. Another victim was recently married. Eight of them were nurses. This particular limo was licensed to carry eight passengers, not nine. This could well become a problem for the limo company in the aftermath of this horrific situation.

From tragedy could come some change. The accident will likely cause reform in the limo industry and perhaps even laws and regulations to improve safety. The accident is currently under investigation, but something went terribly wrong to cause such a horrific fire. Some speculate that the cause related to a short in the electrical system.

The California Highway Patrol and the California Public Utilities Commission have jurisdiction over the regulation of transportation firms. We know that the 1999 Lincoln Town Car was not required to carry a fire extinguisher and it is now anticipated that State Senator Jerry Hill (D-San Mateo) will introduce a bill to make it mandatory that limousines have fire extinguishers.

Single Vehicle Accident Ends in Tragedy for Driver

Tue, 07 May 2013 16:36:19 -0800

We all want to be safe on the roads and learn to drive defensively. But sometimes serious injury and loss of life can occur with only a single vehicle. Single vehicle crashes can actually be more dangerous than many other types of crashes. About 8,000 people are killed in sIngle vehicle roadway departure accidents every year. As San Francisco car accident lawyers, we know that single vehicle crashes can not only cause very serious injury, they can be fatal.

Earlier this week a tragic accident of this kind occurred in the Lake Shore area of San Francisco. The auto crash occurred on Monday night. The driver, a 25-year-old man, was at the wheel of his own vehicle when he lost control and hit a curb. He was driving on Lake Merced Boulevard, near Sunset. The impact caused the car to veer off the road, hit a poll and then roll over. The driver was pinned under the car and fire rescue attempted to extricate him from the vehicle and took him to San Francisco General Hospital, he did not survive his injuries. He also had not been wearing a seatbelt. Our hearts go out to his family and friends as they grieve this loss.

Reports indicate that speed was a factor in this accident. This is often the case with road departure motor vehicle accidents. This is stunning, because drivers generally have control over how fast they are traveling unless they have a medical emergency or their vehicle is defective in some way.

Sadly, in most cases, these crashes are completely avoidable and experts say there are several key factors that contribute to single vehicle crashes. One of these is speed. It is also important not to drive when fatigued. Finally, as always, do not drink and drive.

Toyota Settlements Don't End the Claims

Fri, 15 Feb 2013 05:00:17 -0800

The Toyota Motor Corp. and U.S. subsidiaries have agreed to settle investigations by 29 attorneys general and will pay 29 million dollars to participating states. The settlement closes the claims with these states that the company misled consumers about the safety of its vehicles.

Toyota has been paying out significant reparations for many safety and communications issues associated with various defects. For example, the company already paid a large sum totaling $48.8 million to the National Highway Traffic Safety Administration for its failure to let regulators know about defects that became the subject of recalls.

The company has also recently agreed to pay about $1.4 billion to end national class action claims that its vehicles suddenly and unintentionally accelerated, which devalued the owner's vehicles. The company had been sued by hundreds of owners since about 2009, when the car maker began receiving complaints about the sudden acceleration issue. Some individual cases involving injury and death due to the defect may still be litigated. The company is said to be trying to settle some of the larger of these cases before they get to juries.

The state investigations resulted from the claims of sudden acceleration. The company had insisted that its vehicles were safe, despite recurring issues with the acceleration systems in several models. Toyota has agreed to correct communications issues between Japan and the United States with regard to safety problems. It must also advise buyers about defects in previously-owned vehicles and repairs made on those cars.

Parent Warning: Nap Nanny Maker Sued After "At Least" Five Infant Deaths

Sat, 08 Dec 2012 07:34:03 -0800

The federal government has sued the manufacturer of the Nap Nanny, sold in stores nationwide including San Francisco, because the products' maker has failed to voluntarily recall it. As San Francisco child injury lawyers, with a long history of expertise in infant safety recalls, we applaud the efforts of the Consumer Product Safety Commission.

The problem with the product is that "at least five infant deaths and more than 70 complaints" of infants falling out have been provided to the federal government. They say that the maker of this product was not providing sufficient warnings to consumers about the dangers and risks associated with it.

The Nap Nanny has been sold for several years and includes a foam pad with a cover made of fabric. The baby is supposed to be strapped into a three-point harness. The product has been sold in several versions, but essentially it is a baby recliner designed for sleep, rest, and play.

The original Nap Nappy was recalled in July of 2010 after one infant died and 22 others were found hanging out or falling over the edge. The CPSC says that the manufacturer has not warned consumers of the risks of using it, even after these incidents occurred.

According to the CPSC, the various generations of the product contain "defects in the design, warnings, and instructions that pose a substantial risk of death and injury to infants." The government has asked that the manufacturer cease selling the products and let the public know that it is not only defective, but that they are entitled to a full refund for it.

The CPSC noted that after its staff had discussed this course of action, the company refused to recall the product voluntarily in a way that "would address the hazard posed by consumer use of the product in a crib or without the harness straps being securely fastened." Instead, the manufacturer says that they "stand behind the safety of the product when used as instructed." They say that parents whose children have been injured or have died did not use the product correctly and that the product is not dangerous when used properly.

We urge parents to review their use of this and other child and infant products. If you purchased one of these products, return it to the store where it was purchased and let them know you are aware that the federal government says it is unsafe.

At the Border -- Dangerous Kids Toys Stopped by Customs

Mon, 03 Dec 2012 10:34:43 -0800

The Consumer Product Safety Commission (CPSC) is quietly stopping the entry of bad toys into the United States. The 2012 statistics are impressive. Two million toys that are considered to be dangerous and to violate the safety rules and regulations in our country, were stopped at the borders and prohibited from getting into the hand of our kids. This is particularly important as the holidays approach and parents are out buying toys they hope and expect will be safe for their children. As California consumer law and child injury lawyers, we applaud these efforts.

The cumulative effect of these border stops amount to a big effort by the border patrol and the CPSC. Estimates are that in the past four years, over eight million units of toys that amount to about 2,400 types of toys have been seized and prohibited from arrival over the borders for failure to comply with our consumer safety standards.

It is still very important that parents pay attention when purchasing toys for age appropriateness. We have previously warned about buying toys and cribs at garage sales or as hand me downs. Sometimes these older toys or cribs have been taken out of store circulation as unsafe, but have remained in the homes of parents. A well-meaning relative might provide a toy to a child that is not safe and has been recalled. This is dangerous and can lead to injury or fatality.

For example, this past year, the "CPSC recalled 38 toys, three of which involved a lead violation." Although toy recalls have been declining, there are still many every year. In 2011 there were 34. Fatalities related to toys have declined as well. In 2011 there were 13 in total, down from 19 in the previous year. Fatalities can involve choking, asphyxiation and drowning.

Things like balloons can become fatal in the hands of a child. Kids can choke or suffocate on balloons that are deflated or broken. Small toys and their smaller parts are always something to be avoided with little, especially little ones under the age of 3.

Another area of concern are scooters or other riding toys. We have seen kids riding these on neighborhood streets, along with cars. This is unwise. When riding it is important that parents are present and that kids wear helmets. Other products that have shown to be dangerous to kids are magnets. Kids under the age of 14 should not be around high-powered magnets. If there are in proximity to these, an adult should be present.

Bay Area Bicycle Accident Ends in Tragedy

Thu, 29 Nov 2012 06:18:22 -0800

One of the most heart wrenching tragedies happened earlier this week very close to home. A young teen was riding her bicycle to school and was hit by a car and lost her life. As California cycling injury lawyers, we want to express our sympathies to her family and school community.

According to reports, the bicycling teen and the vehicle that fatally injured her were making a right turn at the same time. She was wearing a helmet. Authorities are still trying to piece together how this bicycle accident occurred. The driver stopped and stayed at the scene. Police say that the cause of the collision is not clear and that the driver will not be charged.

The teen's family is not speaking about this tragedy. She attended Woodside High School and resided in Redwood City. According to the statement issued by her school principal, she was an engaged and committed student and athlete.

Unlike in this accident, we read often read reports about situations in which a person is hit while riding a bicycle or walking, and the motorist leaves the scene. Hit and run accidents appear to be on the rise all over the country.

California law requires that motorists stop after an accident that involves the injury of another person. Under California Vehicle Code section 20001, drivers must, among other things, immediately stop, provide identification to other parties or law enforcement and provide reasonable assistance to the injured person or persons. This driver appears to have done everything right.

We hope that over time, the young teen's family can heal and that her school community can as well.

Operation Safe Driver Week Targets Teens

Mon, 15 Oct 2012 17:42:27 -0800

The Commerical Vehicle Safety Alliance (CVSA) and the Federal Motor Carrier Safety Administration (FMCSA), along with others are sponsoring a major effort this week to stop unsafe drivers. The focus is on teens because that demographic has a high fatality rate and persists in the dangerous practice of texting while driving. Distracted driving is a serious problem in San Francisco and throughout California. As San Francisco car accident lawyers, we know that this activity can cause serious or fatal injury in a motor vehicle crash.

It won't surprise readers that not only distracted driving, but speeding as well as aggressive driving are the driving behaviors that most often cause fatal crashes in all age groups. The effort this week is intended to stop these dangerous behaviors in drivers by increasing enforcement and education.

The program involves support by law enforcement across North America. Law enforcement is also paired up with other organizations including highway safety, youth groups and driver education organizations.

Since driving has become a more and more difficult challenge on our roads, sponsors hope that by increasing enforcement, safety and education all drivers will benefit. One area of focus in this extensive program is to ensure that all drivers, and particularly teens, are aware of the driving dangers around large vehicles such as trucks and buses. "Teens & Trucks: Curbing Distracted Driving" builds on prior programs to avoid teen driver crashes, educating young drivers on tactics used to educate commercial drivers, about eliminating distractions on the road.

Abbott Labs Takes $700 Million Hit

Tue, 02 Oct 2012 17:39:21 -0800

In the pharmaceutical industry, there have been some very bad days for manufacturers, but today was really a bitter pill for Abbott Labs. The company was slapped with the second largest criminal fine for a single drug. Why? Because a Virginia judge found that the company promoted a drug called Depakote for uses that were not approved by the Food and Drug Administration (FDA).

As California defective drug lawyers, we have been involved in many cases involving dangerous drugs, off label uses and other issues that relate to the regulation of medications. In fact, we have been at the forefront of many of the most important medical and drug litigations in the country over the past decades.

In this case, the use that was never allowed by the FDA approvals for Depakote was a use for dementia patients and those with schizophrenia. But because these uses were not approved, their promotion for these off-label uses is not permitted.

The company will pay a large settlement with specific states and the federal government for providing information that amounted to false claims to healthcare programs provided by the government.

Other clean-up programs that the company has agreed to in this matter, include a probationary period that will last five years in which the chief executive officer of the company and the company's board of directors must certify compliance with relevant laws. Other agreements relate to corporate integrity that is intended to put it on a path that will avoid fraudulent practices in the future.

FDA Cautions: SimplyThick May Cause Infant Illness and Death

Tue, 18 Sep 2012 13:10:33 -0800

As California defective drug lawyers, we closely follow The Food and Drug Administration's (FDA) warnings and updates for adults and children with regard to medications and medical devices. The FDA has just issued a caution about a medication called SimplyThick that they say may cause injury and death to newborns and infants.

Specifically, the concern with this medication is the potential effect it has on the intestinal tissues of infants. An earlier warning had narrowed the concern to the use of the drug with premature babies, but it is now thought to be a concern for infants of any age.

The condition that can develop from the use of SimplyThick is called necrotizing enterocolitis (NEC). Premature babies and infants who have taken this have developed inflammation and the dying off of intestinal tissues. This can lead to injury and death and it is suspected that there is a link between infant illness and deaths and SimplyThick.

The use of this medication is intended to assist in swallowing. SimplyThick is used as a thickening agent for breast milk and infant formula and is sold to both health facilities and the public. It is intended to help premature babies with swallowing and is also used in older kids and adults.

The Journal of Pediatrics just published findings that expanded the concern to infants in general. Parents are asked to seek their physicians advise before using this drug for premature babies or infants. More study is underway on this situation.

The FDA has published a list of symptoms that should be a warning to parents or caregivers using this medication. They include: "bloated stomach, greenish-tinged vomiting and bloody stools."

We will keep readers apprised of further developments about SimplyThick.

Whistleblower Gets $100 Million Award

Fri, 14 Sep 2012 07:38:53 -0800

As California employment and whistleblower lawyers, we follow developments in cases involving all aspects of the relationship between employees and employers. We often represent clients and groups of employees that have been harmed by their employer. But sometimes the employees see the harm that their employers are causing and blow the whistle on the behavior or actions.

As so it is that the Wall Street Journal reports that the individual who blew the whistle on his former employer UBS has been awarded a huge award for his efforts. The $104 million award is based on information this whistleblower provided to United States government authorities in 2007.

The whistleblower provided information to the government about the bank's efforts to help their clients evade taxes. In this case, the whistleblower provided "detailed descriptions of the bank's efforts to promote tax evasion and confessed to running errands" that included smuggling diamonds in toothpaste tubes.

This matter is very important in lifting the secrecy of Swiss bank activities on behalf of the wealthy who are attempting to avoid taxation. The case has forced the confession of many taxpayers who had undeclared accounts oversees, which amounted to over $5 billion in taxes and penalties to be paid to the IRS that otherwise would have been unpaid.

Although this whistleblower is serving his own sentence under house arrest for his participation in the activities, he is entitled to a percentage of the collected proceeds. The award might well encourage others to provide information about similar situations.

DOJ Joins Class Action Against Law School Exam Givers

Sat, 08 Sep 2012 08:10:54 -0800

In our work as class action lawyers, we stay informed about developments in this area of the law across the country. Recently, we learned that the United States Department of Justice is seeking to support a class action involving Americans with disabilities.

Specifically, the DOJ wants to intervene in a lawsuit brought in the United States District Court in San Francisco. The case is before Judge Edward M. Chen and was filed earlier this year by one of California's watchdog agencies, the California Department of Fair Employment and Housing. The action alleges that the entity that administers the law school admissions test is not doing what they should under the law to accommodate those exam takers with disabilities.

The Law School Admission Council or LSAC as it is known, is responsible for providing the admissions test to those interested in attending law school. In the litigation, it has been alleged that even when prospective test takers supply the necessary back-up on their history of test-taking, they are denied accommodation. A history of accommodation can be a requirement for test takers to demonstrate a current need, unless the disability is a recent development in the individual's life. But under the law known as the Americans with Disabilities Act, test administrators, schools and employers, must provide accommodations if it is shown they are warranted under the law.

Among the allegations in this case are that the the LSAC not only denied accommodation to individuals whose history and disability warranted it, but also turned information over to law schools about which individuals taking the test have disabilities. The accommodations are intended to level the playing field, rather than allow admissions officers to view law school applicants differently in the admissions process.

NYT Reports FDA Snooped on It's Whistleblowers

Sun, 15 Jul 2012 09:15:25 -0800

As California whistleblower lawyers, we read with interest a recent article in the New York Times which reports that the Food and Drug Administration (FDA) has been keeping tabs on its own scientists and others. The tracking included such activities as private emails to Congressional members, lawyers and many others in high places, including the President.

Why would the FDA do this? Apparently the trigger was alleged disclosure of confidential information possibly by several scientists. After what was described as initially a narrow investigation, the probe eventually expanded to a "much broader campaign to counter outside critics of the agency's medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort," the NYT reporters noted.

Now that the surveillance has been revealed, the FDA is said to be defending the surveillance saying that it was done out of concern that some internal scientists were
" 'leaking confidential information about the safety and design of medical devices.' " They also defend the matter stating that they were looking for improper leaks, not trying to halt appropriate protected communications.

Interestingly, the narrow issue involved in the early stages of this matter was the claim by internal scientists that the agency had allowed certain medical devices to pass approval despite what the scientists believed were harmful levels of radiation exposure. Specifically, these were for mammograms and colonoscopies.

Although there has been some litigation surrounding the surveillance which was brought in 2010 by some of the target scientists, the extent of the operation was only recently revealed. The problem with the legality of the surveillance is the potential that the law could have been broken in that protected communications might have been subject to surveillance.

As we have noted in prior posts, whistleblowers are protected under the law. This is to encourage those seeing wrongs to right them. So communications to their lawyers, and others in a position to help, are supposed to be confidential. Just as is the case with an employer who uses technologies to legitimately monitor the communications of their employees, seeking confidential communications from a home computer for example, may cross the line. Some Congressional members are very concerned about this activity, since it could silence the rights of government employees to point out potential wrongdoing or abuse.

The San Francisco whistleblower attorneys of Hersh & Hersh represent whistleblowers and can answer questions concerning the procedures and protections for employees who report fraud or other wrongdoing on the part of their employer. To learn more please contact our whistleblower law experts for a confidential consultation at no charge to you regarding your concerns.

United States Supreme Court Rules on Wage and Hour Case

Fri, 22 Jun 2012 07:41:03 -0800

As California wage and hour lawyers we read with interest the United States Supreme Court's opinion in Christopher v. SmithKlineBeecham Corp., in which the Court recently determined that pharmaceutical sales representatives, also referred to as "detailers," come within the "outside salesman" exemption to the Fair Labor Standards Act (FLSA). This result means that these workers are not entitled to receive overtime wages.

As our readers are aware, the FLSA requires that employers compensate certain employees with overtime pay. Employees considered "outside salesmen" are not entitled to this benefit. The definition of this class of employees has been left to the Department of Labor and in this case, the Court had to determine whether the pharmaceutical detailers are in fact "outside salesmen" as defined by the DOL regulations.

In the case before the court, the workers sought additional pay when working outside the normal 40 hour work week. The case is unusual because the pharmaceutical industry is so highly regulated, the detailers may only visit physicians to seek their non-binding commitment to prescribe the drugs they make. They don't make sales in the traditional sense of a sales activity in which an actual sale is made. The detailers not only visit doctors' offices, they also provide other information to medical personnel through various events to make them aware of the drugs their companies have to offer them for prescriptions to their patients.

These detailers had been receiving a base salary and incentives, but no overtime pay and they sued to get that. The Ninth Circuit Court of Appeals determined that the detailers were in fact outside salesmen and were therefore not entitled to receive overtime pay. They arrived at this result using various lines of reasoning and interpretation which led the Court to determine that the pharmaceutical detailers are not entitled to the overtime pay that might otherwise be provided. They do fall within the outside salesmen exemption.

But Justice Breyer dissented, first voicing his agreement with the way the Court described the detailers' job functions along with the conclusion that the DOL's interpretation of its own regulations should not carry particular weight. However, he would reach a different result in that because the detailer's do not technically make sales, and rather are tasked with promotion of the drugs, they are not outside salesmen and do not fall within the overtime pay exemption. He believes they should receive the overtime pay given the law and the nature of their jobs.

Often employers do not pay what employees are entitled to receive based on the nature of their jobs. We have successfully challenged employers who are not providing overtime pay or other employment benefits to their workers. If you have any questions about your wages, classification or other employment concerns, please contact the San Francisco employee rights law firm of Hersh & Hersh. With over four decades of experience in supporting consumers, the injured and employees who have been harmed by their employers, we can help. Contact our law offices for a free consultation with one of our experienced lawyers.

San Francisco Pedestrian Death Causes Big Conversations

Sun, 15 Apr 2012 08:15:22 -0800

The recent death of an elderly pedestrian in San Francisco is causing sorrow for all involved, but it is also causing a big conversation in the Bay Area about pedestrian safety and bicycle riding in our congested city. Last month, a San Bruno man was walking across the intersection at Castro and Market and was struck by a bicycle. He was hospitalized and passed away from his injuries.

The bicyclist, whose lawyer says he is devastated by the accident, has said online that he was not able to stop as the light changed and the crosswalk began to fill with pedestrians ... instead he plowed through the intersection and hit the elderly man. There are now accounts that video surveillance from the area might contradict his version of the accident.

According to a recent piece in the San Francisco Chronicle, San Francisco officials have determined to "hold errant cyclists accountable and to redouble efforts to get everyone - pedestrians, bicyclists and drivers - to travel more safely." The new plan is reported to include allowing bicyclists who violate traffic safety laws to pay lower traffic fines if they agree to take safety classes instead.

Many have said this is a welcome enforcement effort since over the past decade thousands of pedestrians have been injured and hundreds have lost their lives from just walking across city streets. The new Safe Streets Program is going to target the most dangerous locations and intersections in the city. The effort is not only going to include enforcement, but will also be targeted at education as well. This effort is apparently modeled after the program in Marin County in which bicyclists who are ticketed can attend traffic school and pay a lower fine.

The San Francisco Superior Court will need to approve this proposal which does not include violations in which property damage or personal injury occur.

In the recent tragedy, authorities are still evaluating the evidence in reviewing whether to file charges against the cyclist.

When accidents occur in our lives, we need the support of experts who can help with the legal and medical issues involved. The San Francisco injury law firm of Hersh & Hersh has helped families coping with serious accidents and wrongful death for over four decades. If you have been involved in an accident or have sustained injuries, please contact our law offices for a free consultation with one of our lawyers to discuss your legal rights and to get guidance with your medical needs.