KENNETH J. ALLEN LAW GROUP - INJURY ATTORNEYS
Illinois and Indiana Personal Injury Lawyers and Attorneys Trial and Civil Litigation Law Firm.
Accident & Injury Law
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Those three words best describe the driving forces behind Kenneth J. Allen Law Group. Our firm is devoted exclusively to the practice of Accident and Injury Law, and exclusively to the people - not corporations - seriously hurt or killed in incidents as varied as on-the-job accidents, semi-truck crashes, injuries from a defective product, or loss of life because of a doctor's medical malpractice.
As the only multi-state law firm in Valparaiso Indiana, Merrillville Indiana, Indianapolis Indiana, Northwest Indiana, Chicagoland, Joliet Illinois, Tinley Park Illinois, Chicago Illinois accepting serious injury and wrongful death cases, exclusively, Kenneth J. Allen Law Group is experienced and knowledgeable in the details and procedures that can make or break a case.
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FEDERAL GOVERNMENT CONTINUES PUSH FOR SAFER BUSES AND MOTORCOACHES: DEPARTMENT OF TRANSPORTATION INSPECTORS SHUTTING DOWN BUS COMPANIES ACROSS THE NATION
In February, we posted about the Federal Motor Carrier Safety Administration‘s new plan to investigate how dangerous motorcoach and bus travel is in the United States today.
At that time, FMCSA officially announced its investigation into bus crashes and people being hurt or worse after choosing to travel by bus and being injured in a bus crash. The details about the investigation’s origins and the bus crash injuries that drew the attention of the federal government can be read here.
This week, the Secretary of the Department of Transportation, Ray LaHood, along with Federal Motor Carrier Safety Administrator Anne S. Ferro hosted a big conflab in Washington D.C. with representatives of motorcoach companies from around the country. The reason? To discuss the safety of buses today and to push for more public awareness of safety issues in traveling by bus.
Along with the bus company people were other invitees of FMCSA: travel agency representatives, tourist industry folk, and government officials at both the state and local level. Law enforcement representatives were there too.
50 Federal Bus Safety Inspectors Roaming the U.S. Checking Motorcoaches and Buses for Dangers
One thing on the agenda: the announcement that FMCSA has 50 safety investigators, specially trained in the aspects of bus travel and the dangers of motorcoaches, roaming the United States. These Federal Bus Inspectors are looking into high risk motorcoach bus companies – and have been for awhile now.
“Safety is our highest priority and we are committed to keeping those who do not follow our safety rules off the road,” said Secretary LaHood. “Today’s announcement builds on the recent steps we have taken to create one standard of safety for all passenger travel.”
The federal crackdown on motorcoaches is already bringing results: within the past 60 days, 15 bus companies (passenger carriers) have had their vehicles pulled off the roads by the FMCSA.
Fifteen companies in eight weeks is a telling tale of how danger bus travel really is in the United States right now. Of these fifteen passenger carriers, 7 were labelled “imminent hazards” by the federal inspectors and 8 were labelled “unsatisfactory.” There’s more: during those same 8 weeks, working with state government safety officials, the FMCSA has found an additional 1500 violations of safety laws by bus drivers and bus maintenance.
“Through our stepped-up oversight of motorcoach companies and expanding outreach to consumers, the department will continue to raise the bar on motorcoach safety,” said Administrator Ferro. “Our work with the law enforcement community and our diverse stakeholders is to make passenger safety everyone’s number one priority and to prevent needless tragedies.”
Public Awareness of Safe Bus Travel: the “Look Before You Book” Campaign
In tandem with its safety inspectors combing the country for bus dangers, FMCSA has implemented a media campaign to make people who are deciding whether to take a bus for a trip, or who are choosing between bus companies, to have needed facts on how to choose a safe bus carrier.
The “Look Before You Book” campaign includes an app that gives each bus company’s record of safety as tallied by FMCSA. It can be downloaded online here and it can be seen in the above image.
Additionally, the FMCSA offers a bus company safety checklist in different languages online. Before taking a bus trip, passengers are encouraged to check out the bus company they are considering using.
FEDERAL GOVERNMENT CONTINUES FIGHT AGAINST DISTRACTED DRIVING: $17.5 MILLION GRANT PROGRAM DEBUTS AT NHTSA
This week, the National Highway Traffic Safety Administration (NHTSA) announced that around $17.5 million in federal grant money will be made available under the Moving Ahead for Progress in the 21st Century Act (MAP-21) to those states that passed laws making distracted driving illegal in their jurisdictions for 2013.
“Distracted driving is a persistent and growing epidemic on America’s roads—but there has also been incredible momentum in the states in recent years to pass laws that tackle the problem head on. … This new grant program will provide states that have distracted driving laws with important resources to help save lives and prevent injuries.”
If Indiana, Illinois, or any other states around this neck of the woods want to get their share of this grant money, they will have to demonstrate to the federal government that they have legislation in place that makes distracted driving against their state law (a crime) or that they have a law in place by 2013 that outlaws texting while driving a motor vehicle: either way, the state law has to allow a law enforcement officer to pull over and stop drivers for distracted driving on state roads.
The Federal Government isn’t just putting money on the table to encourage state legislatures to pass state laws making distracted driving illegal, the NHTSA is doing other things, too. Like campaigns to boost public awareness about the dangers of distracted driving.
Here’s a new Public Safety Announcement, part of the new Glee campaign against driving while texting:
BIGGEST DRUG COMPANY SETTLEMENT IN US HISTORY MADE BY GLAXOSMITHKLINE FOR DIABETES-DRUG AVANDIA AND OTHER CLAIMS
t’s not a done deal yet, but that may just be paperwork at this point because everyone seems to acknowledge that GlaxoSmithKline has settled its claims with the federal government to the tune of $3 billion, which beats the old record of $2.3 billion paid by Pfizer back in 2009 in settlement with the feds for violating the law in marketing some of its drugs for uses other than what was instructed on their labels.
GlaxoSmithKline will be paying $3,000,000,000 to the government to settle a bunch of claims of illegal activity: Medicaid reimbursement hijinks; promoting its drugs for off-label uses; and some strange things in particular about its cash cow drug, Avandia, which was said to help people suffering with diabetes but was revealed by medical researchers to be connected to an almost 50% increase in the chance of a heart attack and an even higher risk of dying from heart problems.
Key: Mayo Clinic investigations revealed that almost every single scientist (90%) who published papers that supported the use of Avandia in humans had financial connections with GlaxoSmithKline. (For more details on Avandia issues, please refer to our earlier post).
The Biggest Drug Company Settlement In History Isn’t High Enough
Billions of dollars in settlement sounds like a serious deal, a financial hit that should make the drug company think twice about doing things like this in the future. GlaxoSmithKline has this cash on hand, and has already informed its shareholders that the settlement will be paid by cash in the bank.
That’s right: GSK has $3 billion setting around to pay the U.S. Department of Justice when the paperwork is signed, no surprise when GlaxoSmithKline is reported to have a market value in excess of $110,000,000,000.00.
So who really won here?
Many will argue the drug company did. The lesson learned: drugs are products manufactured and marketed for profit in this country just like cars and boats and smartphones and coffeemakers. Americans cannot blindly trust that the products that they bring into their homes are safe to use or consume.
If you or a loved one has reason to think that you may have been harmed by a drug or drug-related product, then it is important to get medical help first and legal help as well.That’s what products liability law does – and maybe, in the future, an American jury will explain to big drug companies that putting profits over people is just plain wrong.
CHEVY VOLT FIRE STARTS DAYS AFTER CRASH: HOW SAFE ARE ELECTRIC CARS? VOLT FIRE SPARKS NHTSA RESEARCH STUDY INTO LITHIUM-ION VEHICLES
Electric cars – they seem so smart to drive, and most of them come with a nice design and lots of cool options. Especially with all the concerns about oil and gas prices (and usage).
Well, nothing’s perfect and the big news last week was when a Chevrolet Volt bought by the federal government for crash tests actually caught fire over three weeks after the Volt was used in testing — which means that now, lots of folk are wondering about how safe these lithium-ion vehicles really are, after a crash.
Three weeks after the crash, the Chevy Volt is on fire? No wonder people are scratching their heads.
Now, the National Highway Traffic Safety Administration (NHTSA) will be checking into what happened to that electric car – and it’s already known that the crash testing did some sort of damage to the Chevy Volt’s lithium-ion battery. How that crash resulted in a fire over 21 days later, that’s still a mystery.
The manufacturer is pointing the finger at the folk who did the crash tests, opining that they failed to follow standard safety protocols – and that the only Chevy Volt known to catch fire was this Crash Test Volt.
What happens if you own an electric car and you are in a crash? Well, be careful and be aware of the unknown risks at this point – and remember, product liability laws are designed to protect you from harm in these kinds of situations.
Electric vehicles show great promise as an innovative and fuel-efficient option for American drivers. These vehicles have already demonstrated their potential to save consumers money at the pump and help protect the environment — and they could pave the way to the kind of clean energy jobs that will help our country compete on a global scale. As manufacturers continue to develop vehicles of any kind — electric, gasoline, or diesel — it is critical that they take the necessary steps to ensure the safety of drivers — and first responders — both during and after a crash.
That’s why the National Highway Traffic Safety Administration is working with all vehicle manufacturers to ensure they have the appropriate post-crash protocols. Let us be clear: NHTSA does not believe electric vehicles are at a greater risk of fire than other vehicles. It is common sense that the different designs of electric vehicles will require different safety standards and precautions. The Department of Energy and the National Fire Protection Association already collaborate to ensure first responders know the risks and the appropriate steps to take so they can perform their jobs safely given the shock hazard that a damaged electric vehicle may present, and NHTSA will work closely with these organizations to ensure that guidance for the emergency response community reflects the information NHTSA obtains.
In the near term, NHTSA is focused on identifying the best ways to ensure that consumers and emergency responders are aware of any risks they may encounter in electric vehicles in post-crash situations. The agency has asked all of the manufacturers who currently have electric vehicles on the market (or plans to introduce electric vehicles in the near future) to provide information on the protocols they have established for discharging and handling their lithium-ion batteries — including any recommendations for mitigating fire risks in these vehicles. Ultimately we hope the information we gather will lay the groundwork for detailed guidance for first responders and tow truck operators for use in their work responding to incidents involving these vehicles.
NHTSA has carefully investigated an incident involving a fire in a Chevy Volt that occurred more than three weeks after that vehicle had been crash tested as part of the agency’s New Car Assessment Program on May 12 of this year. NHTSA has concluded that the crash test damaged the Volt’s lithium ion battery and that the damage led to a vehicle fire that took several weeks to develop after the test was completed. That incident — which occurred at the test facility and caused property damage but no injuries — remains the only case of a battery-related fire in a crash or crash test of vehicles powered by lithium-ion batteries, despite a number of other rigorous crash tests of the Chevy Volt separately conducted by both NHTSA and General Motors. In the coming weeks, in collaboration with the Department of Energy, NHTSA will conduct additional testing of the Volt’s lithium-ion batteries and will continue to monitor these vehicles — as the agency does with all vehicles on our nation’s roadways — should any safety issues arise.
Based on the available data, NHTSA does not believe the Volt or other electric vehicles are at a greater risk of fire than gasoline-powered vehicles. In fact, all vehicles — both electric and gasoline-powered — have some risk of fire in the event of a serious crash. NHTSA urges the following precautions in the event of a crash involving an electric vehicle:
- Consumers are advised to take the same actions they would in a crash involving a gasoline-powered vehicle — exit the vehicle safely or await the assistance of an emergency responder if they are unable to get out on their own, move a safe distance away from the vehicle, and notify the authorities of the crash.
- Emergency responders should check a vehicle for markings or other indications that it is electric-powered. If it is, they should exercise caution, per published guidelines, to avoid any possible electrical shock and should disconnect the battery from the vehicle circuits if possible.
- Emergency responders should also use copious amounts of water if fire is present or suspected and keeping in mind that fire can occur for a considerable period after a crash should proceed accordingly.
- Operators of tow trucks and vehicle storage facilities should ensure the damaged vehicle is kept in an open area instead of a garage or other enclosed building.
- Rather than attempt to discharge a propulsion battery, an emergency responder, tow truck operator, or storage facility should contact experts at the vehicle’s manufacturer on that subject.
- Vehicle owners should not store a severely damaged vehicle in a garage or near other vehicles.
ELECTRONIC MEDICAL RECORDS: WILL DIGITAL MEDICAL RECORDS MAKE YOU SAFER OR INCREASE YOUR RISK OF MEDICAL MALPRACTICE? NEW REPORT ISSUES WARNING.
This week, the Institute of Medicine (IOM) released its findings after much research into the use of digital medical records, entitled “Health IT and Patient Safety: Building Safer Systems for Better Care.” (Read the full report here.)
The IOM has found there is danger in digital medical records and we should all be concerned about the move to put all our medical records into electronic databases.
Of course, factions of the medical community like the idea of digital medial records. Medical malpractice defense attorneys and insurance companies argue that putting patient medical records into electronic databases would lower the number of prescription drug mistakes, doctor errors, and hospital negligence. They push for electronic medical records because, they say, this will help all sorts of health care providers to do their jobs better, and there will be less medical mistakes (and of course, fewer medical malpractice claims and medical negligence lawsuits).
Not everyone is on board with the safety and benefits of electronic medical records, however – including some private medical experts. Now, the Institute of Medicine also voices its concern about the use of electronic medical records.
In its new report, the IOM warns that digital medical records could mean big mistakes will happen, just in different ways. For example, electronic medical software, or “Health IT,” has no established industry standards or rules. It’s the wild west out there – bad software means big dangers when human patients are involved. The report points out that things like “… dosing errors, failure to detect life-threatening illnesses, and delaying treatment due to poor human-computer interactions or loss of data have led to serious injury and death.”
So, what to do? In its report, the IOM suggests that the federal government (via the Department of Health and Human Services) put together a plan to minimize patient dangers and to thereafter monitor things every year. Alternatively, the FDA should undertake regulation of Health IT and create the appropriate safety rules and regulations.
In other words, the IOM thinks that the federal government needs to get a handle on the electronic digital medical records problem as soon as possible, to set standards and to oversee things.
Here is the press release issued in conjunction with this week’s Report:
Date: Nov. 8, 2011
FOR IMMEDIATE RELEASE
To Improve Patient Safety, Health Information Technology Needs Better Oversight, Accountability
WASHINGTON — To protect Americans from potential medical errors associated with the use of information technology in patient care, a newreport by the Institute of Medicine calls for greater oversight by the public and private sectors. The report examines a broad range of health information technologies, including electronic health records, secure patient portals, and health information exchanges, but not software for medical devices.
The secretary of the U.S. Department of Health and Human Services should publish a plan within 12 months to minimize patient safety risks associated with health IT and report annually on the progress being made, the report says. The plan should include a schedule for working with the private sector to assess the impact of health IT on patient safety. However, if the secretary determines that progress toward improving safety is insufficient within a year, the U.S. Food and Drug Administration should exercise its authority to regulate these technologies. Concurrently, FDA should begin planning the framework needed for potential regulation so that the agency is ready to act if necessary.
“Just as the potential benefits of health IT are great, so are the possible harms to patient safety if these technologies are not being properly designed and used,” said Gail L. Warden, president emeritus of Henry Ford Health System and chair of the committee that wrote the report. “To protect patients, industry and government have a shared responsibility to ensure greater transparency, accountability, and reporting of health IT-related medical errors.”
The federal government is investing billions of dollars to encourage hospitals and health care providers to adopt health IT so that all Americans can benefit from the use of electronic health records by 2014, but demonstrated improvements in care and safety are not yet established, the report says. Some of these technologies have significantly improved the quality of health care and reduced medical errors. However, concerns about potential harm are emerging as health care providers increasingly rely on health IT to deliver care.
Little published evidence exists that quantifies the magnitude of the risk associated with health IT problems, partly because many technology vendors discourage the free exchange of safety-related information in their contracts with health care providers. But serious errors involving these technologies — including medication dosing errors, failure to detect fatal illnesses, and treatment delays due to poor human-computer interactions or loss of data — have led to several reported patient deaths and injuries.
HHS should establish a mechanism for both technology vendors and users to report health IT-related deaths, injuries, or unsafe conditions, the report says. Reporting events related to patient safety should be mandatory for vendors and voluntary, confidential, and nonpunitive for care providers. In addition, Congress should establish an independent federal entity to investigate patient deaths, injuries, or potential unsafe conditions associated with health IT. Based on those investigations, the entity could make nonbinding recommendations, allowing flexibility for HHS, health care organizations, vendors, and other experts to determine the best course forward.
A new Health IT Safety Council should be funded by HHS to evaluate criteria and develop methods for assessing and monitoring safety and measuring impacts of health IT on safety, the report says. The agency should also ensure that health IT vendors support the free exchange of information and not discourage health care providers from sharing patient safety concerns, including screen shots. Nondisclosure agreements in contracts between vendors and health care providers and “hold harmless” clauses that shift the liability of unsafe health IT features to care providers greatly discourage information sharing.
HHS should establish quality management principles and risk management processes in designing and implementing health IT products, which can be complex and difficult for doctors and nurses to use. Alerts in technology systems should be designed to have lower false-alarm rates and computer interfaces need to be more intuitive for users.
The study was sponsored by the U.S. Department of Health and Human Services. Established in 1970 under the charter of the National Academy of Sciences, the Institute of Medicine provides independent, objective, evidence-based advice to policymakers, health professionals, the private sector, and the public. The National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council make up the National Academies. For more information, visit http://national-academies.org. A committee roster follows.
TOBACCO COMPANIES WIN IN FDA FIGHT – FEDERAL JUDGE GRANTS INJUNCTION AGAINST FDA REQUIRED GRAPHIC WARNINGS ON PACKAGING
The tobacco companies are celebrating a victory over the federal government today, because Federal District Judge Richard Leon just granted their request for an injunction – an order that blocks the Food & Drug Administration’s requirement that tobacco products start being sold with really, really graphic warnings on them about the dangers of humans using tobacco products. (For details, see our earlier posts here and here.)
However, it’s not over till it’s over.
The Order only stays things for a certain period of time. Fifteen (15) months, to be exact. This, according to the judge’s ruling, should be enough time for the merits of the controversy to be decided.
Problem is, Judge Leon’s decision already hints as to how that’s going to play out: in his accompanying opinion, he’s ruled that it’s more likely than not that the cigarette manufacturer plaintiffs are going to win on their Constitutional claims against the federal government, i.e., that the proposed regulations violate free speech protections provided in the U.S. Constitution.
Leon is suggesting that the FDA’s regulation goes past an approved notice on the facts of smoking and into a value judgment on the use of tobacco. If the FDA regulation is found to include a value judgment, then it is entering an area of advocacy on the issue, and that’s not allowed under the Constitution.
Tobacco use kills people – doesn’t seem much point in arguing that as anything but fact these days, right? To get a gist of the growing public response, read the news release for TobaccoFreeKids which hit the news wire today.
Avastin (bevacizumab) has been controversial for awhile now, because the federal government was pulling Avastin off the market and away from breast cancer victims who were very loyal to Avastin as being helpful to them (see our earlier post on this issue). Now, Avastin is back in the news — not for breast cancer, but for blindness. Seems Avastin can cause people to lose their eyesight.
Blind, from an injection of a drug designed to help a patient. Imagine that horror happening to you or someone you love.
The U.S. Department of Veteran’s Affairs already pulled Avastin from treatment of macular degeneration. Lawsuits based upon state products liability laws are starting to be filed across the country, where plaintiffs blinded by Avastin are suing for justice, andthe New York Times has taken notice.
Two big questions: how many people have been blinded by Avastin, used in the treatment of their macular degeneration? (There are estimates that the number of Avastin blindness victims is shockingly high.)
And, did the manfacturer (Genetech, a division of Roche) actually encourage this off-label use of Avastin? The volume of off-label use suggests that it was actively marketed, since health care professionals would have to not only have been told about this alternative use of the breast cancer drug, they would have had to have had some instruction on how to inject the drug into the eye. (If this is shown, then the manufacturer’s legal responsibilities are higher under the law. )
If you or a loved one has been treated for macular degeneration, then it might be wise for you to investigate the use of Avastin in your treatment – immediately.
SAFETY REGULATIONS WORK: WILL CSA 2010 RESULT IN THE TRUCKING INDUSTRY BEING AS SAFE AS U.S. AIRLINES?
Here’s some good news that we’re not hearing enough about: in 2010, there was not a single fatality in the U.S. airline industry. No one died – no passenger fatalities – none. That’s a great accomplishment, in and of itself, but it gets better: U.S. airlines also had zero passenger fatalities in 2007 and 2008.
Unfortunately, there cannot be a four year clean sweep, because in 2009 there was the tragic loss of 50 lives. These fatalities were all from a single accident, on February 12, 2009, when a Colgan Air Bombardier Q400 turboprop crashed into a Buffalo, New York, neighborhood, killing everyone on board and one man on the ground.
Bottom line, one fatal plane crash in four years is an excellent and commendable safety record for the American airline industry – and they should be applauded much more than they are for this amazing accomplishment. Kudos.
And, in that applause, due respect must be given to the increased governmental safety regulations that were implemented and which have resulted in this wonderful achievement. It must be acknowledged that one of the primary reasons that we’ve only seen one fatal plane crash of the U.S. Airlines in all this time is because of regulations that have been passed and enforced by the federal government. Agencies like theFederal Aviation Administration and the National Transportation Safety Board must share in these accolades.
Which brings us to the current attempts by regulators to increase the safety of the trucking industry and all the criticism of this endeavor.
CSA 2010 is the federal government’s program to make commercial trucking safer. The big trucking companies are very unhappy about these new regulations, complaining that it will destroy their profitability, force truck drivers to seek other careers, yadda yadda yadda — you get the idea.
For example, in December 2010 new hours of service (HOS) regulations were unveiled — read them here at the Federal Motor Carrier Safety Administration website — not to undermine the trucking industry, but to make sure that truckers are getting enough rest and sleep and time away from the wheel. Sleepy, tired truck drivers are dangerous to themselves and to those with whom they share the road. By regulating how much drive time they can have before taking a break is important. It can save lives.
The trucking industry is crying out in protest of these new HOS regulations – as well as all of CSA 2010 – because it decreases profitability, increases costs, etc. They need to have those trucks moving as much as possible to make their money. Cut back on trucker road time, you hit their essence – it’s understandable that these companies are not going quietly into that good night.
Still, we have hopes that the federal regulatory agencies will eventually corral the complaints, via the courtroom if need be, and things will settle down in the trucking industry so sometime in the future — hopefully the near future — we can see trucking industry statistics similar to those that the U.S. airline industry enjoys today. It’s doable, and it’s needed.
The federal government is really serious about targeting cigarettes as dangerous products these days. More than ever before, and you’re invited to participate.
Why? Maybe it’s because the Center for Disease Control (CDC) reports that thirty percent (30%) of all cancer deaths in this country are due to tobacco. In fact, tobacco use remains the leading cause of preventable death in the United States, responsible for 443,000 deaths each year.
Which may explain why another study has been released by the Surgeon General on how very, very bad cigarette smoking (and other tobacco products) can be – both for the user of the product as well as those subjected to secondhand smoke.
And, if the statistical studies, scholarly reports, and regular news releases don’t get the message out, there’s always the product itself. New legislation, the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), will have future cigarette packages and advertisements showing bigger, graphic health warnings. Scary ones.
In fact, right now the Food and Drug Administration has issued a proposed rule that will create nine new textual warning statements accompanied by color graphics depicting the negative health consequences of smoking.
The FDA is also asking for your input regarding its implementation of the new tobacco regulations. You can vote on your choice of warning labels, as well as make other comments, now through Tuesday, January 11, 2011.
- Go to www.regulations.gov and insert docket number FDA-2010-N-0568 into the “search” box and follow the prompts.
- Send a fax, with your comments, to 301-827-6870.
- Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions) to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Room 1061, Rockville, MD 20852.