Brien Roche Law http://www.brienrochelaw.com Thu, 08 Dec 2016 02:33:42 +0000 en-US hourly 1 Legal History http://www.brienrochelaw.com/blog/legal-history/ http://www.brienrochelaw.com/blog/legal-history/#comments Thu, 08 Dec 2016 02:21:06 +0000 http://www.brienrochelaw.com/?p=9671 Legal History from Brien Roche Law

Freedom Calls Freedom calls for Frederick Douglass. Douglas began his quest for freedom on a train that pulled out of Baltimore, Maryland. He jumped onboard a rail car designated for blacks. His name, according to his papers, was Frederick Bailey. … Continue reading

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Legal History from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Legal History

Brien Roche

Freedom Calls

Freedom calls for Frederick Douglass. Douglas began his quest for freedom on a train that pulled out of Baltimore, Maryland. He jumped onboard a rail car designated for blacks. His name, according to his papers, was Frederick Bailey. The papers belonged to a real sailor who had been freed. He boarded the train without a ticket. Maryland at that point was a slave state as was the neighboring state of Delaware.

Freedom Calls Frederick Douglass

Prior to his train ride for freedom, Douglass had learned how to read and write. He had been viewed by his master as a valuable commodity and also a dangerous commodity. He had been working at the Baltimore shipyards and, while there, he had learned the language and the manner of the sailors that surrounded him.

When the train conductor finally approached him, he announced that he had a paper with the American eagle on it and that eagle would carry him around the world. The conductor glanced at the papers and then moved on, believing that Douglas was probably a sailor.

Freedom Calls New York

The train took Bailey to Havre de Grace where he caught a ferry across the Susquehanna River and then a train to Wilmington, Delaware. He then took a steamboat to Philadelphia and then caught another train to New York City. All of this in September 1838.

From that beginning, Douglass went on to become an author, lecturer and advocate for the abolition of slavery.alt=”Fairfax Injury Lawyer Brien Roche Addresses Legal History” width=”100″ height=”150″ class=”size-full wp-image-9397″ /> Brien Roche[/caption]

Boss Tweed

We have all heard of Tammany Hall.  It is the so-called meeting place of the famously corrupt head of the New York City Democratic Party.  His full name was William Magear “Boss” Tweed.  Tweed served one term in the U.S. Congress but he became much more powerful as the head of the Tammany Society which had almost unlimited control over political patronage throughout the state of New York. 

Boss Tweed Of New York

Tweed’s source of power was principally the Irish immigrants who flooded into New York.  Eventually Tweed was arrested.  During his first jury trial, the jury failed to reach a verdict.  It was believed that the jury had been rigged.  In a second trial that was better controlled by prosecutors, he was convicted of 204 counts.  His 12-year prison sentence was eventually reduced to one year.  He was thereafter sued by the state for $6 million and was confined to debtor’s prison.  While he was in prison, he was allowed out in the afternoons for a walk in Central Park.  Finally in December of 1875 Boss Tweed disappeared.  He escaped to Cuba.  From there he fled to Spain.  He was eventually returned to New York, where he agreed to testify against fellow conspirators.  He died in 1878, still imprisoned in the Ludlow Street Jail.

Legal History-Famous Defamation Trial

A famous and perhaps the first defamation trial to occur in this country involved a gentleman by the name of John Zenger. Zenger was a former indentured servant who was born in Germany. He began printing a publication known as the New York Weekly Journal in 1773.  Many of his articles were pointed at the royal governor by the name of William Cosby. Cosby was a former gambler and soldier with royal connections who had acquired a reputation for being corrupt.

Cosby eventually had Zenger arrested and charged with libel. Libel or defamation at that time included any criticism of the government whether or not it was true. The jury pool was hand-picked with selected supporters of the Governor. Zenger’s attorney, a Philadelphia lawyer by the name of Andrew Hamilton, successfully argued that the prejudicial jurors should be stricken. He prevailed on that.

Lawyer Admits Client Made Statement

Hamilton admitted that his client had printed the offending remarks. Hamilton’s defense was based on the fact that the words themselves were not false or scandalous and therefore Zenger was not guilty.

The jury after hearing all of the evidence deliberated only for minutes and returned a verdict of not guilty in favor of Zenger.  The jury apparently accepted Hamilton’s argument that the statements were not false. This trial laid the foundation for what became known as the First Amendment, ensuring freedom of speech and freedom the press.

Contact a Defamation Attorney

If you feel you have been the victim of defamation, contact Brien Roche today to discuss your case.

Attorney For The Damned

Most of us have probably heard of Clarence Darrow, the famous attorney that undertook the defense of a teacher who was discussing evolution and who acquired national and international fame in the Scopes trial. 

Clarence Darrow, however, had a few trials of his own.  In a recent book entitled Clarence Darrow: Attorney for the Damned, the author John Farrell puts a more human face on Darrow and discusses some of his potential missteps. 

Darrow was accused in two different instances of bribing jurors.  Each of those cases went to trial.  In the first of those cases Darrow gave his own closing argument and did what he was known for doing in many other cases, i.e. putting the entire justice system on trial in the case.  In that particular case he was found not guilty.

In the second trial involving similar allegations the jury came back with a hung verdict of 8-4 for conviction.  Darrow was not retried however he never did fully recover from the anguish of these trials. 

As is so often the case, this very flawed man accomplished many good things.

For more information on the law see Brien Roche’s book Law 101 and for information on legal history see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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Maintaining Balance http://www.brienrochelaw.com/blog/maintaining-balance/ http://www.brienrochelaw.com/blog/maintaining-balance/#comments Sun, 04 Dec 2016 16:56:39 +0000 http://www.brienrochelaw.com/?p=9465 Maintaining Balance from Brien Roche Law

Maintaining balance is in large measure controlled by your vestibular system. The vestibular system is that portion of the inner ear that coordinates information from various parts of the body. It then allows you to engage in what we simply … Continue reading

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Maintaining Balance from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Vertigo and Maintaining Balance.

Brien Roche

Maintaining balance is in large measure controlled by your vestibular system. The vestibular system is that portion of the inner ear that coordinates information from various parts of the body. It then allows you to engage in what we simply know as maintaining balance. That lack of balance is sometimes called vertigo or dizziness.  There are related symptoms such as ringing in the ears and hearing your own eyes blink.

Maintaining Balance-Coordinating Information

Maintaining balance is a function of coordinating information. That information is gathered from your vision, information from your body itself as a mechanical organ which moves through space and the movement and information from your inner ears.  All of this information gets put together in the brain. The brain then tells us where we are in space and where we are going.  Within the so-called “inner ear” there is literally a fluid collection. It has tiny little hairs in it. The movement of those hairs communicates information to the brain as to how the body is positioned and where the body is in relation to objects around it.

If any of those functions mentioned above (vision, mechanical sensation or inner ear function) are interfered with then that results in a lack of information going to the brain as to your position in space. That results in the brain feeling like things are off balance.  Sometimes what is necessary is to retrain the brain in order to make up for the missing data.  If the loss of function is an inner ear problem then that is highly do-able.  Sometimes that can require physical therapy.

Maintaining Balance-The Right Diagnosis

Frequently the problem in regards to the inner ear issues is making sure that the right diagnosis is made.  Sometimes the cause of vertigo can be what is called Meniere’s disease. That is a buildup of fluid in the inner ear.  Sometimes the problem can be the result of a dislodging of calcium carbonate crystals in the inner ear and they migrate into the canals of the inner ear.

As of the date of this article there is a new device that is being used at Johns Hopkins Hospital to gauge inner ear problems quickly at the bedside.  It’s kind of like an EKG of the eyes.  That type of information can be critical in terms of making the proper diagnosis and helping patients in maintaining balance in all respects.

Vertigo From Car Accidents-Maintaining Balance

Vertigo is a feeling that you or your surroundings are spinning.  Car accidents can be the cause.  Vertigo itself is simply a symptom, not a disease.  

Your ability to maintain proper balance is a function of fluid in the inner ear area that sends signals to the brain as to how to properly balance the body.  The inability of that system to properly function is called vestibular dysfunction.  

Balance is actually a result of several different contributing systems.  The skin, joints, muscles all relay information to the brain that allows the vestibular system to maintain proper balance. 

That balance can be affected by any sort of injury to the head, either as a result of striking something or as a result of whiplash motion.  

That injury to the head may cause increased pressure within the skull which can then influence the balance of fluids within the skull causing vertigo and/or dizziness. 

Aside from trauma, there are several other potential causes of vertigo.

Most often vertigo is simply defined as an illusion of motion.  It is associated with a spinning sensation.  Dizziness is a somewhat looser term that can include vertigo.

For more information on maintaining balance and vertigo see the pages on Wikipedia.

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Bus Accident Cases http://www.brienrochelaw.com/blog/bus-accident/ http://www.brienrochelaw.com/blog/bus-accident/#comments Wed, 30 Nov 2016 21:01:00 +0000 http://www.brienrochelaw.com/?p=9645 Bus Accident Cases from Brien Roche Law

Bus safety standards may be in for some changes as a result of a recent spate of bus accidents.  Accident Lawyer Brien Roche reports as of April 1, 2011, there is a move now in the U. S. Congress to … Continue reading

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Bus Accident Cases from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Bus Accident Cases

Brien Roche


Bus safety standards may be in for some changes as a result of a recent spate of bus accidents.  Accident Lawyer Brien Roche reports as of April 1, 2011, there is a move now in the U. S. Congress to approve bus safety by requiring seat belts, stronger roofs, better windows and also electronic stability controls.  These features are designed primarily to combat roll-overs and passenger ejections which are the primary causes of death in bus collisions.Any accident lawyer handling bus accident cases should be attuned to these issues.

The bus industry across the United States is a complex patchwork of companies, many of which come and go with serious accidents.  That is, after a serious accident the bus company involved may simply dissolve and reincorporate under a different name thereby attempting to dodge the bad reputation that had followed the predecessor company.

Similar legislation last year that was near to being passed died as a result of the objection of Senator Coburn from Oklahoma.  It is unknown as to what his position will be this year on these legislative changes.

Bus Seat Belts and Federal Preemption

Bus seat belts could well make the difference between life and death in a bus crash.

In the 2011 case of Doomes v. Best Transit Corporation, the New York Court of Appeals noted that this state law claim premised upon the absence of seat belts in this commercial bus was not preempted by federal law either expressly or impliedly.

Express preemption may exist where there is plain language in the statute indicating that the federal government intends to fully occupy this field.  Implied preemption may exist where the federal statute is so broad that it may be properly inferred that Congress wished to fully occupy the field or, in the alternative, where state law conflicts with federal law.  Such a conflict can be found where it would be impossible for a private party to comply with both state and federal law or where the state law is an obstacle to the accomplishment of the federal purpose.

In regards to this particular bus accident case, the Court noted that the Federal Motor Vehicle Safety Standards do require the driver’s seat to have a seat belt but do not require the seat belt on passenger seats.  These standards were promulgated under the National Traffic and Motor Vehicle Safety Act which does expressly state in conjunction with the preemption provision that common law claims are preserved.

The Court of Appeals, in this instance, concluded that there clearly is no express federal preemption and likewise no implied preemption since it is not impossible for a bus manufacturer to comply with the federal standard requiring a driver’s seat belt and also to comply with the common law claim that seat belts should have been installed for passengers. 

Chinese Passengers Involved In Bus Accident

A bus crash that occurred in early March 2011 killing 15 passengers in the Bronx, New York carried principally Chinese workers to out of town restaurants and Chinese immigrants day-tripping to gambling casinos.

Chinatown tour buses have been known for a long time as a cheaper alternative for travel to certain cities in the United States.

Chinese culture views gambling as a mode of relaxation.  As a result, many Chinese workers, after a long day on the job, opt to day-trip to nearby casinos to gamble into the late hours of the evening and then return to their home city for another full day of work.  This is viewed by many as a way of relaxing.

In addition, many Chinese workers travel long distances overnight to restaurant employment in distant cities only to return that same day to their home location and then to begin the cycle again the next day.

This niche Chinese bus business, although part of the American immigrant tradition, in this instance resulted in a deadly crash killing 15 passengers.

See the pages on Wikipedia for more information on traffic collisions and the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Preventing Medical Malpractice http://www.brienrochelaw.com/blog/preventing-medical-malpractice/ http://www.brienrochelaw.com/blog/preventing-medical-malpractice/#comments Tue, 29 Nov 2016 00:01:53 +0000 http://www.brienrochelaw.com/?p=9642 Preventing Medical Malpractice from Brien Roche Law

The team approach in medicine may well be on the horizon.  In a December 2, 2012 article in The Washington Post a young physician reported on the team approach within the Veterans Administration system.  The team approach, as the name … Continue reading

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Preventing Medical Malpractice from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Preventing Medical Malpractice

Brien Roche

The team approach in medicine may well be on the horizon.  In a December 2, 2012 article in The Washington Post a young physician reported on the team approach within the Veterans Administration system. 

The team approach, as the name implies, involves a team leader, typically the primary care provider, coordinating care for the patients. 

One of the examples given was an Iraq veteran who had multiple surgeries, was dealing with chronic pain and was now dependent on narcotics.  In addition, he had also gained a great deal of weight and become a diabetic. 

The primary care doctor, upon seeing the patient, introduced him to a social worker and a psychologist.  He was booked for appointments with the pain management clinic, the mental health clinic for post-traumatic stress disorder and for physical rehabilitation to help him get more mobile.  In addition, the primary care physician saw the patient again the next day and began treating the diabetes. 

If this patient had gone to a private clinic, he might have received one of those modes of treatment but it is unlikely that he would have been referred on to all of the necessary specialists to deal with his multitude of problems.

The VA, of course, is a bit different in its capacity to refer patients to multiple providers within one facility.  A private clinic or provider normally does not have these multiple specialists within one building. 

The article cites another incident where a patient with diabetes came in to see the primary care provider.  He was immediately provided with appointments to see a nutritionist, weight loss specialist and optometrist to deal with potential sight problems down the road.  In addition, the patient was brought back a week later to deal with one of the nurses and learn how to control and manage his diabetes.

This type of team approach to medicine has received a great deal of lip service over the years but perhaps now with Obamacare it may actually be closer to reality.  Aside from the obvious advantage of allowing the patient to, in effect,  have the benefit of one-stop shopping it also enhances the likelihood of there being actual continuity of care.  That continuity of care is critical where people have multiple conditions.  Continuity of care is best implemented where there is one provider who is overseeing all treatment and therefore has not only the big picture but also has the big picture over time.       

Preventing Medical Malpractice Through Better Communication

A communication failure among health care providers can be devastating to the patient. This is most critical during a hospital stay. In a recent Washington Post article of April 30, 2013 an incident is recounted where a gastroenterologist came in to a patient and reported that the patient had an obstructed kidney. The internist came in thereafter and reported that “We don’t know what’s wrong.” Shortly thereafter the social worker came in and said “You are good to go home.”

If these various providers had simply talked to each other the patient would have received one bit of information that hopefully would have been correct.

Coordination of Care

The problem is what is called “coordination of care”.  Nobody seems to be in charge.  As this same article indicates, that is the dirty little secret about health care. This same article reports that it is estimated that between 44,000 and 98,000 deaths from such medical errors occur each year.  Likewise a 2010 federal report stated that 15,000 Medicare patients every month suffer some significant harm in hospitals.

Hospitalists May Help Prevent Medical Malpractice

Many hospitals have attempted to control the information flow by the hiring of what are called “hospitalists”.  A hospitalist typically is a internal medicine doctor.  These physicians are supposed to manage the patients’ care, coordinate the various specialists, manage medications and generally oversee the care of the patient and the transition of the patient from hospital to home or hospital to another facility.

The problem with the use of hospitalists is that many of them are simply overworked.  Most of them report a safe workload as being up to 15 patients but according to a survey from Johns Hopkins University School of Medicine 4 in 10 hospitalists that were interviewed struggled with excessive workloads. In many hospitals these hospitalists work 7 – 15 days in a row on shifts of 10 – 12 hours each in order to provide some continuity of care to the patients.

What is most disturbing is the lack of proper communication flow especially when things are not going as planned i.e., some medical error has occurred.  It is not at all unusual for the physicians at that point to close ranks and communicate only limited information to the patient for fear of implicating another physician.

The Joint Commission which is the national hospital accrediting group has attempted to develop some guidelines to assist hospitals in communicating well. 

A patient’s best mechanism of maintaining communication flow probably is to have his or her own advocate who can interact with the physicians.  Ideally this advocate should be some person with medical knowledge who can ask the appropriate questions, inquire into such things as fall safety, what medications are being used and their interaction, any planned surgery and the need for such.  With such an advocate the level of miscommunication certainly is reduced.

Failure to communicate between health care  providers is a frequent cause of serious medical injury and resulting medical malpractice.  Many hospitals use the “National Patient Safety Goals” published by the Joint Commission as a basic standard for their policies and procedures.  These goals, referred to as NPSG guidelines, clarify how certain things should be properly communicated and recorded among health care providers.For instance, such things as telephone orders, abbreviations to be avoided, proper hand off of a patient from one provider to another and proper communication of critical test results.

One model for proper communication is what is called SBAR (Situation, Background, Assessment, Recommendation).  This method requires that the provider who is communicating information to another provider identifies the current situation, what the background is leading to that current situation, what is the assessment of the situation and what is the recommendation to remedy the situation.  Documentation of this communication should be maintained in the patient’s hospital chart. 

In evaluating the communication between providers, in particular doctors and nurses, it is important to look at the issue of disruptive conduct, i.e. whether the doctor has a reputation of engaging in intimidating or abusive behavior towards other providers.  That impedes communication.  In that regard the disciplinary history of that doctor becomes important.  Many hospitals have a policy of zero tolerance of any such disruptive behavior. 

With the advent of electronic medical records it is important to know the technology aspects of recording information at that facility and by that provider. 

It is also important to understand and review the chain of command within the health care system.  Nurses are required to report concerns about a patient to the attending doctor first.  If that doctor fails to take corrective action, then the nurse is required to notify the supervisor.  The failure of the nurse to do so may make the nurse legally liable. 

All of those different modes of communication need to be evaluated in looking at a failure to communicate case. 

Prompt Apologies As A Way Of Preventing Medical Malpractice Claims

At Tufts Medical Center in Boston a neurosurgeon apologized to a patient’s family after a rare and fatal medical error took the life of a mother.  Attorneys representing the hospital itself did not agree with that approach.

In November of 2013 the 74 year-old mother awoke the day following surgery with seizures and extreme pain.  The surgery that she underwent was to install a pain pump.  The mother’s neurosurgeon, Steven Hwang, MD, admitted to her sons that the surgical dye used to test the location of tubing into the mother’s spine was incorrect.  While Dr. Hwang ordered Omnipaque, the pharmacist told the nurse that they don’t carry that and gave the nurse MD-76.  MD-76 comes with a warning label that says “not for intrathecal use.”

Even though Dr. Hwang acknowledged the medical error as soon as he’d learned about it, Tufts’ malpractice insurer attorneys denied any negligence on the part of anyone, including Dr. Hwang, connected with this tragedy.

Stephen Carcerano, one of the sons told the Boston Globe, “A mistake was admitted, and now they’re saying it’s not their fault.”  Stephen and Michael Carcerano are jointly suing the hospital, pharmacists, surgeons and nurses.  According to the Globe the malpractice carrier has made an offer of settlement but the case is still pending as per counsel representing the Plaintiff sons.

While this suit is pending, there have been some developments:

  • In 2012 legislation passed in Massachusetts that requires a cooling-off period of 6 months before patients can sue.  This was intended to encourage settlement discussion during that 6-month period and allowed for providers to apologize for errors made without the apology itself being used against the provider in court.
  • Six other hospitals in MA initiated pilot programs that offer patients injured by medical errors a timely apology and prompt financial settlements.  The thinking behind this is that a program such as this could boost patient safety and deter costly lawsuits.

While Dr. Hwang did not respond to the requests of Outpatient Surgery, Tufts provided the following:  The Massachusetts legislature passed medical malpractice reform to allow providers, patients and families to reflect on an evaluate situations involving unexpected medical outcomes instead of rushing to court.  This is consistent with Tufts Medical Center’s longstanding policy and practice of positive and collaborative relationships with patients and families.  We cannot publicly discuss the legal issues of a specific case.”

For more information on medical malpractice see the pages on Wikipedia and the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Orthopedics http://www.brienrochelaw.com/blog/orthopedics/ http://www.brienrochelaw.com/blog/orthopedics/#comments Mon, 28 Nov 2016 22:58:20 +0000 http://www.brienrochelaw.com/?p=9639 Orthopedics from Brien Roche Law

Orthopedists are frequent players in personal injury claims.  Orthopaedic surgery or the general field of orthopaedics deals with injuries to the skeletal system and to the muscular system.  In any serious muscular or skeletal injury an orthopaedic surgeon should be … Continue reading

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Orthopedics from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Orthopedics

Brien Roche

Orthopedists are frequent players in personal injury claims. 

Orthopaedic surgery or the general field of orthopaedics deals with injuries to the skeletal system and to the muscular system. 

In any serious muscular or skeletal injury an orthopaedic surgeon should be involved.  That orthopaedic surgeon will then oversee the overall care and will prescribe physical therapy or may prescribe anesthetic injections for pain control or may make referrals to other specialists such as neurologists or physical medicine doctors for more specialized treatment for certain injuries.

In most cases the orthopaedic surgeon is the one who is best able to provide what is referred to as a permanent partial disability rating.  This rating is something that is based upon guidelines published by the American Medical Association and puts into numerical form the scope of the actual functional disability that has resulted from the injury. 

Orthopedics and Cervical Spine Surgery

Cervical spine surgery is complicated to say the least.  The most dramatic neck surgery comes in the form of what is called anterior cervical dissection and fusion.Both orthopedic and neurosurgical specialists may be involved in this surgery

This type of surgery is designed to relieve the pain, numbness and tingling and weakness that may be caused by nerve compression.  That nerve compression can be a result simply of the aging process, a disc herniation or instability of the spine.  The overall purpose of the surgery is to remove that pressure on the nerve which involves a process known as decompression and then fusing the bony vertebrae that constitute the spinal column frequently through a series of plates and screws in order to provide stability to that spinal column.  Once that stability is maintained then any abnormal motion of the spine is stopped and hopefully the pain is relieved.

The surgery is referred to as anterior because the surgical cut is actually made in the front of the neck and the surgeon then separates the tissue in order to get to the spinal column itself where the focus of the surgery is.

Disability Rating

Disability ratings within a personal injury lawsuit can be important.  The term disability rating, however, can have a number of different meanings.

If you are a veteran and making a claim against the Veteran’s Administration, then a disability rating becomes important because that rating then determines the amount of compensation you are entitled to potentially receive for the rest of your life. 

If you are a workers’ compensation claimant and you have suffered the loss of a limb or the loss of use of a body part, then a disability rating will determine what amount of compensation you are entitled to for purposes of what is called a scheduled loss.  For instance, if you have lost a right hand through an amputation then you would have a 100% disability of that right hand.  If on the other hand you have simply lost the use of the right hand to some extent, then a physician must ascribe a number to that loss of use which then becomes the disability rating.  Your compensation as to the loss of use of that hand then is a function of what that rating is.

In most personal injury cases a disability rating is applied to the body part that has been injured, whether it be the spine, a limb or one of your sensory organs such as sight or hearing.  You will need to have a physician apply the guideline promulgated by the American Medical Association to come up with a number as to what that disability rating is.  In most cases, assuming that the entire limb has not been lost, the disability rating number is fairly low, i.e. typically somewhere between 5% and 25%, on the theory that if you still have the limb then even though it may not be 100% functional it still has some significant function.

In any event, that disability rating adds a dimension to the case that can substantially increase its value.

Muscle Injury

Muscle injury is a much overlooked condition in the orthopedic field. Even though technically an orthopedic surgeon specializes in muscle and bone injuries, they tend to ignore the muscular component. The muscular component is generally referred to as myofascial pain syndrome.  Myo is a reference to muscular.  Fascia is the tissue that holds muscles in place. Myofascial pain syndrome is a condition caused by muscle fibers that contract and then do not release. That contraction causes knots within the muscle. These knots are called trigger points.

These knots of muscle produce pain. These pain signals then travel to the spinal cord. So-called “referred pain” occurs when pain signals from the muscles register in the nervous system as if they came from somewhere else. These trigger points can cause problems such as chronic back pain, head aches, pelvic pain. Trigger points can form anywhere on the body. They may be due to injury. Trigger points can be due to simply bracing your body in anticipation of an impact. They can also be caused by overuse or poor posture.

A popular treatment that has arisen to deal with trigger points is what is called “dry needling”. Dry needling is similar to acupuncture. It involves the placement of tiny needles into the skin to stimulate a twitch response in the heart of the trigger point.  That tends to release the trigger point. Unlike acupuncture, the dry needling focuses directly on the trigger points rather than on the so-called “energy fields” that may be associated with pain.

In addition to the dry needling, patients are encouraged to press the trigger point area against a hard surface with such things as tennis balls. Other objects too can be used to press on the trigger point to relieve the knot.

This type of muscle injury and the resulting referred pain is difficult to diagnose in many cases. It is difficult to diagnose because it requires the physician to follow the thread that may lead back to the trigger point which is the source of the pain.

Safe Lifting and Avoiding Orthopedic Injuries

Any one of us can be called upon at various times to lift heavy objects.  Safe lifting is important and in that regard you should know the proper way to lift a heavy object. 

Many people attempt to lift objects essentially with their back.  Your lifting thrust should come rather from your legs and  your buttocks, not from your back.  In order to do that you need to bend at the knee in order to get down to approximately where the object is that you are intending to lift and then rely principally upon your legs and your buttocks to pick the object straight up. 

Obviously, having a firm grip on the object is important.  Once you have raised the object up it should be maintained basically at the level between your waist and your shoulders in the front of the body.

Safe lifting technique can prevent lower back injury and still allow you to complete the task either at work or home and enjoy the rest of the day as opposed to spending the day in the emergency room or in the office of an orthopedic surgeon.

For more information on orthopedics see the pages on Wikipedia and the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Ophthalmological Medical Malpractice http://www.brienrochelaw.com/blog/ophthalmological-medical-malpractice/ http://www.brienrochelaw.com/blog/ophthalmological-medical-malpractice/#comments Sun, 27 Nov 2016 23:48:58 +0000 http://www.brienrochelaw.com/?p=9637 Ophthalmological Medical Malpractice from Brien Roche Law

Eye surgery is becoming more and more prevalent in particular as the population ages.  There are several conditions that may necessitate eye surgery. Cataracts are a result of the clumping of proteins around the lens of the eye thereby causing … Continue reading

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Ophthalmological Medical Malpractice from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Ophthalmological Medical Malpractice

Brien Roche

Eye surgery is becoming more and more prevalent in particular as the population ages.  There are several conditions that may necessitate eye surgery.

Cataracts are a result of the clumping of proteins around the lens of the eye thereby causing the lens to be cloudy.  This condition can be diagnosed by an ophthalmologist using a slit-lamp which enables the doctor to examine the lens.  Surgical treatment for this condition is to physically remove the lens by breaking it up through ultrasound waves and then suctioning out that lens and replacing it with a new artificial lens.  Since the lens is one of the few parts of the body that does not contain any blood vessels there is little likelihood of a new artificial lens being rejected by the body.

Diabetics are especially prone to eye problems because the fragile blood vessels in the back of the eye do sometimes swell and leak into the eye thereby blurring vision.  There can also be instances where diabetics have abnormal vessel growth in the retinal area thereby obscuring vision.  If you are diabetic and notice spots floating in your field of view, then that is a clue that you need some treatment and that there may be more serious problems on the horizon.  The surgical treatment involves laser surgery to stop the blood leakage and to thereby stabilize vision.

Glaucoma involves a buildup of fluid inside the eyes thereby increasing pressure and eventually causing damage to the optic nerve which is the nerve that sends the light impulses to the brain which allows us to have vision.  People over 60, cigarette smokers, diabetics and black Americans are particular high risk groups.  Glaucoma can be treated although not cured through either medicine or laser treatments.

The macula is the portion of the eye that provides sharp, central vision.  Macular degeneration can be dealt with through increased vitamin supplements of Vitamin C and Vitamin E.  Likewise, there are surgical techniques available to deal with fragile or leaky blood vessels that are interfering with vision. 

Ophthalmological Medical Malpractice and Laser Surgery

Laser surgery has become popular in the last many years.  Most eye malpractice claims arise from this type of surgery.  

There are two main types of such surgery.  One type is the traditional Lasik surgery which involves cutting a flap on the surface of the cornea.  The cornea is the circular portion of the eye that is at the front of the eye.  Once this flap has been cut, then a laser is used to reshape the underlying cornea.

The other type of laser surgery is one that involves scraping very thin layers of tissue off the cornea’s outermost layer.  This does not involve making a flap in the cornea.  

These forms of surgery have the ability to correct nearsightedness, farsightedness and astigmatism.  

The downside of these surgeries is that there is some inherent risk in the surgical procedure going awry.  In addition this surgery cannot correct or prevent the natural loss of focusing power for close-up objects that happens with age.

In fact there is some evidence that laser surgery actually hastens the development of this condition especially in people who are already nearsighted.

Another frequent topic in regards to eye care is that of diet and food supplements.  Being overweight clearly increases the risk of developing Type 2 diabetes which can then result in damage to the blood vessels in the retina in the back of the eye.  As such weight control certainly is important.   Food supplements are a matter of significant debate.  Probably all that can safely be said about that is that the consumption of carrots not only have the benefit of potentially improving eye health but also have the general benefit that is associated with any vegetable.  

Retinal Detachment

Retinal detachment is an increasingly common problem among people over 40.  It is quite common that people have what are called “floaters” in their eyes.  Floaters occur when tiny pieces of the vitreous fluid that is in the eyeball break loose from the back of the eye.  When a person has a sudden burst of floaters, that frequently is a warning sign that the retina in the back of the eye is beginning to detach from the wall to which it is supposed to remain attached.

Risk Factors

People at risk for retinal detachment are those who are extremely near-sighted, have a family history of this problem and who are over a certain age.

Another potential risk factor for retinal detachment is thought to be cataract surgery.  There is some data that suggests that within a year of cataract surgery it is common to get posterior vitreous separation because the surgery alters the physiology of the vitreous fluid, causing it to become more liquid.  Other ophthalmologists however disagree with that theory.

The actual process of retinal detachment occurs as the vitreous fluid that occupies most of the eyeball begins to liquefy.  This vitreous fluid in its natural state is gel-like.  When it becomes more liquid then it produces less pressure against the retina which then allows the retina to detach from the back of the eye wall.

Repairing Detached Retina

For minor detachments of the retina, the use of a beam of laser light can reattach the retina.  Where there is a major detachment, there may be a need to actually freeze the retina back in place.

The typical symptom that people should look for in terms of impending retinal detachment is the significant flashes of light.  These flashes of light occur as a result of the protein that is in liquefied vitreous jelly staying attached to the retina and these particles of protein actually pull on the retina causing the flashes of light to occur.

Common eye problems that arise in people over 40 are such things as cataracts, macular degeneration, glaucoma and floaters.

Cataracts

Cataracts are small clumps of protein that form on the lens making it cloudy.  This can result in a loss of vision.  This vision loss cannot be corrected through glasses or contact lenses.  The clouding effect is the actual cataract.Although there is no cure for cataracts, surgery can be an effective treatment.  The surgery consists of lens replacement.

The patient needs to decide whether or not to go with a basic mono-focal lens that will allow the eye to see clearly either close up or at a distance or a premium lens, such as one that corrects astigmatism or even a multi-focal lens that can potentially restore the full range of vision without glasses.

The lens replacement consists of making a small opening in the cornea which is the front part of the eye, inserting a high frequency ultrasound probe to break up the cloudy lens, vacuum out the particles and then implant a clear artificial lens.

The lens is one of the few parts of the body that is not the recipient of any blood supply and as such it can be removed without any risk of the body rejecting it.

This form of lens removal can also be accomplished through a laser-assisted surgery that uses a computer-guided laser to deliver the pulses of energy to perform some of those steps.

Macular Degeneration

Macular degeneration is the degeneration of the macula.  The macula is the tiny area near the center of the retina which is in the back of the eye.  The retina is that part of the eye which produces the sharp images that we are able to see. Damage to the macula knocks out what is called “central vision” although it may not affect what is called “outside vision”.

This macular degeneration can come in forms that are described as either dry or wet.  The dry form progresses slowly over a period of many years.  The wet form occurs when new blood vessels under the macula leak blood and fluid.  This latter form of macular degeneration is more aggressive and can cause severe vision loss.

The standard treatment for wet macular degeneration is to use anitbodies to help prevent the growth of leaky blood vessels.  Although there is no cure for this condition, either dry or wet, supplements of high levels of antioxidant vitamins and minerals can slow down the progression.

Glaucoma

Glaucoma has traditionally been defined as increased pressure within the eye.  Some researchers now believe that glaucoma is actually a neurological disorder associated with nerve cells in the brain that degenerate.  For many years doctors believed that glaucoma was simply increased eye pressure which could be treated by reducing the pressure.  Although eye pressure is a risk associated with glaucoma, there are other characteristic changes such as loss of peripheral vision and damage to the optic nerve that now seem to be more characteristic of glaucoma.  Glaucoma can cause blindness. 

Treatment for glaucoma typically is eye drops to lower the pressure.  Surgery can be recommended in some instances to improve the flow of fluid out of the eye, thereby controlling pressure.

Those people are most at-risk for glaucoma are those over 45, have a family history, are either near-sighed or far-sighed, are African-American or Hispanic, or people who have either diabetes, migraines or low blood pressure.

Floaters

Another common ophthalmological problem is what is called “floaters”.  These floaters are strands that seem to swim across the field of vision.  They are very common as you get older.  Typically they are just an annoyance.  They are caused by bits of gel that are within the vitreous fluid within the eye peeling off and floating around the inside of the eye cavity.  Most of the inside of the eyeball is filled with this vitreous fluid.  The vitreous fluid is what provides shape and also acts as a shock aborber for the retina, which is the main visual component of the eye at the back of the eye.  These bits of gel that are floating  around cast shadows on the retina and that is what appear to be these floaters.

A sudden increase in the number of floaters paired with flashes of light or the appearance of a veil over the field of vision is something more significant and could be a potential warning sign of retinal detachment.  That requires immediate treatment.

For more information on ophthalmology see the pages on Wikipedia and for more information on medical malpractice see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Drug Injuries http://www.brienrochelaw.com/blog/drug-injuries/ http://www.brienrochelaw.com/blog/drug-injuries/#comments Sun, 27 Nov 2016 20:51:03 +0000 http://www.brienrochelaw.com/?p=9635 Drug Injuries from Brien Roche Law

Tainted Steroids Cause Drug Injuries Tainted steroids from a compounding pharmacy in Massachusetts have infected potentially hundreds of pain medicine patients. The particular drug that was contaminated is methyl-prednisolone acetate.  This is an injectable pain medication that is injected into … Continue reading

for more personal injury news and views visit, Brien Roche Law

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Drug Injuries from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Drug Injuries

Brien Roche

Tainted Steroids Cause Drug Injuries

Tainted steroids from a compounding pharmacy in Massachusetts have infected potentially hundreds of pain medicine patients. The particular drug that was contaminated is methyl-prednisolone acetate.  This is an injectable pain medication that is injected into the spinal canal.  This particular medication became contaminated with a fungus that is the cause of a very rare form of meningitis.  The meningitis, in this case, is somewhat deceptive because the symptoms tend to be slow in coming on.  The early symptoms might be easily confused with simply a headache or the flu and include such things as sensitivity to light, stiff neck, weakness or numbness and slurred speech.  The fungus, however, can cause a very rare form of brain infection that requires months of antibiotic care in order to cure.

The pharmacy that prepared the compound was what is called a compounding pharmacy located in Framingham, Massachusetts.  Compounding pharmacies typically are ones that custom make medicines for individual patients.  In this particular case, the compounding pharmacy was shipping large doses of this medication to several locations.

Of 56,000 community pharmacies across the country 7,500 are considered to be compounding pharmacies.  In this particular instance,  the large volume of doses that were being prepared by this pharmacy raised significant questions as to whether or not it is really a pharmacy or a manufacturer.  The pharmacies themselves are regulated by the State although the U.S. Food and Drug Administration claims oversight of drug compounding activities.

Drug injury from compounding pharmacies such as NECC of Framingham, Massachusetts are alarming. The fungus that contaminated the pain medication has caused several incidents of meningitis resulting in several deaths.  The fungus causing the disease is very slow to grow and very difficult to identify.  The particular medication that the fungus was in is a very high potency long acting steroid that was used to relieve inflammation and also relieve pain in people with herniated discs and also people with certain types of arthritis.

The U. S. Food and Drug Administration had been somewhat uncertain as to its ability to regulate compounding pharmacies since most compounding pharmacies are Mom and Pop operations that simply prepare specialized drugs for individual patients.  This particular compounding pharmacy had gone far beyond that and was preparing large batches of medication for particular distributors. 

The Food and Drug Administration has been on notice for many years of potential problems with compounding pharmacies.  As the Washington Post reported on October 12, 2012 a 2006, a survey from FDA found that almost one-third of compounded drugs had problems with them including contamination and incorrect strengths.  Compounding pharmacies have also been engaging in copying commercially available drugs and therefore essentially acting as manufacturers.  Compounding pharmacies are not authorized to act in that fashion as the whole idea of the regulatory scheme was to allow the compounding pharmacies to act simply as Mom and Pop operations and thereby avoid some of the formality associated with larger productions. 

Pharmaceuticals and Doctors

Following the money is an interesting concept especially in regard to the relationship between the pharmaceuticals and doctors.  What it means is that you try to track where the money comes from or where it goes to in order to see who and what is being influenced.

In the field of medicine there is a great deal of money that flows between the pharmaceutical industry and the medical industry, i.e. doctors.  What the pharmaceutical companies do is they offer physicians financial enticements to prescribe their drugs, ask physicians to participate in a speaker’s bureau that the pharmaceutical company sponsors and also to sign off on articles that are written by someone else, i.e. ghostwritten articles. 

Dr. Jerome Kassirer, in a June 2012 article in Trial Magazine, reported on this.  In his 2004 book entitled On the Take: How Medicine’s Complicity With Big Business Can Endanger Your Health (Oxford University Press 2004), is a commentary on this subject. 

One thing in particular that concerned Dr. Kassirer is this issue of ghostwriting.  He indicated that it exists not only in regards to journal articles that may be ghostwritten by the industry and signed off on by a respected physician but also indicated that it may be prevalent in regards to clinical trials.  A clinical trial is where a particular medicine is being tested by a group of physicians to determine what effects it may have.  The ghostwriting of these clinical trials is ominous because it then calls into question the validity of the results that are being reported.

Dr. Kassirer also reported that there is a very cozy relationship between the pharmaceutical industry and medical device making industry and the medical profession in terms of continuing medical education.  The industry supplies a great deal of funding for these professional meetings in particular involving the American Heart Association, the American Gastroenterological Association and the American Society of Nephrology.

Within the recent health care law passed by the Obama administration there is a Sunshine Provision that is to go into effect in 2013 that requires pharmaceutical companies to report any physician who is making more than a small amount of money from them and to publish this information on a website that is available to the public.  This does force disclosure but frequently these websites have a way of becoming difficult to identify.

In 2007 surveys that were done among doctors who belonged to the American Medical Association, it was reported that a large fraction of them had taken something from industry, 16% were receiving personal money for services on speaker’s bureaus and 18% were receiving personal money for consulting with the industry. 

The overall accuracy of this survey is difficult to verify.

Although it goes without saying that the vast majority of physicians are beyond reproach when it comes to conflicts of interest involving the care of their patients, it needs to be said that there is a certain percentage of the medical community that may indeed be influenced as to health care decisions by direct or indirect payments they are receiving from the industry.  For instance, a physician who attends a continuing medical education conference in Hawaii that is paid for by a particular pharmaceutical company may well be favorably inclined to prescribe that companies’ medication in the future.  The decision making process may not even be a conscious one in that regard.

Physician speaking fees paid by Merck Pharmaceutical during the year 2010 totalled $20.4 million.  During the year 2010 more than 2,000 U. S. doctors and health care professionals were paid that sum of money to discuss and, in effect, promote Merck’s various products and also to discuss other health care topics with professionals.To the extent that medical malpractice cases deal with pharmaceutical or  medical device issues it may be worthwhile for medical malpractice attorneys to explore this relationship. 

Merck had previously disclosed that for the second half of 2009 they had paid $9.4 million to approximately 1,700 different health care professionals to promote their products and to discuss health care topics.  Other pharmaceutical companies may well be in the same ballpark in terms of the amount of money that they distribute to health care professionals to, in effect, promote their products.

These numbers are of interest since it shows the potential bias that many healthcare professionals may have towards certain pharmaceutical companies in terms of issuing prescriptions and also making professional decisions such as what medication to prescribe or in the case of medical device decisions, what medical device to use. All of that could be significant in terms of showing bias.

This raises the question of course of what does the patient do.  Some issues that the well-informed consumer may want to research or perhaps even ask of the physician are the following:

  1. Is the physician currently involved or has the physician been involved in any clinical trials involving medication and, if so, when and what did this involve?
  2. Has the physician been involved in any speaker’s bureaus promoted by industry?
  3. Has the physician signed off on any articles or clinical trials that were written by anyone other than the physician?

Medication Errors

Medication errors are on the rise according to the Agency for Healthcare Research and Quality,the lead federal agency charged with improving quality,safety and efficiency of health care for all Americans.  This agency reports that in 2008 1.9 million people became ill or were injured from side effects of medication or because they were given the wrong type or dose or they simply took the wrong type or dose of medication.  The report from the agency does not distinguish between errors made at the prescription level versus the dispensing level or errors made by the consumer in terms of taking the wrong or too much medication.  The substances most often found at the center of the presumed error were steroids, pain relievers, blood thinners and heart and blood pressure medications.

Many of these errors could be avoided simply through better communication between the health care professional and the consumer and the more ready availability of information as to prescriptions so that consumers could check prescriptions on-line.

Pain Killers and Warning Labels

On September 10th,2013  the Food and Drug Administration (FDA) announced that it was requiring increased warnings on labels relating to certain injury pain killers.  The focus is on OxyContin and oxycodone.  The new requirements are going to apply to other narcotic painkillers known as opioids.  The enhanced warnings are considered to be necessary because of the increased addiction, misuse and thousands of deaths that occur each year.

In 2010 the Center for Disease Control (CDC) reported that over 16,000 people died from overdoses involving opioids.  That same year the CDC reports that enough opioid pain relievers were sold to medicate every adult in the United States with 5 milligrams of hydrocodone every four hours for a month.

Extended Release and Long Acting Painkillers

The increased labeling will apply to all extended-release and long-acting opioid painkillers.  Historically these were only prescribed for patients with what is called “acute pain”, i.e., short term.  Over the past decade the use of painkillers has skyrocketed and now their use is common for everything from back pain to arthritis.

A study reported in The Washington Post article of September 11, 2013 reports that about 2 million Americans are addicted to or abusing prescription painkillers.  Those are numbers that far exceed those who are addicted to cocaine or heroin. 

The new warnings will require that manufacturers alert patients and providers that these opioids should be used only by patients for whom other treatment is not sufficient. 

More Studies and Clinical Trials Required

In addition the FDA will require that drug companies conduct more studies and clinical trials to further determine the risks of these painkillers.  The FDA will also require new warnings relating to use of this medication by pregnant women in that chronic use can cause withdrawal symptoms in a newborn.

Vaccine Maker’s Immunity

Vaccine maker’s immunity was reaffirmed in February 2011 in the case of Bruesewitz v. Wyeth where the Supreme Court of the  United States dealt with the issue of whether federal law protects pharmaceutical companies from product liability lawsuits by parents who claim that vaccines have harmed their children.  The Supreme Court sided with the pharmaceutical companies in a decision issued on February 22, 2011.  The Court stated that Congress found that such a system of immunity was necessary to insure that vaccines remain readily available.  The National Childhood Vaccine Injury Act of 1986, according to the Court, leaves complex judgments about vaccine design to the Food and Drug Administration and to the National Vaccine Program rather than to juries. 

To some extent this decision is consistent with the Supreme Court’s ongoing tendency to find preemption, i.e. that federal laws and regulations in many instances displace state and actions and lawsuits. 

In this particular case, Hannah Bruesewitz began to have seizures as an infant after receiving the DPT vaccine manufactured by Wyeth.  The vaccine court ruled against Hannah.  That tribunal ruled that she had not proved that the vaccine harmed her.

The Supreme Court ruled that no vaccine maker could be held liable for death or  injuries arising from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings. 

Generic Drugs and Failure To Warn

Failure to warn claims involving generic drugs took a significant hit on June 23, 2011 with the decision of Pliva, Inc. v. Mensing from the U.S. Supreme Court.  In that decision, the Court diluted the Wyeth decision by concluding that manufacturers of generic drugs cannot be sued for failure to warn because such claims are preempted by federal law. In Wyeth the Court held that drug manufacturers could be sued for failure to warn in state court on the theory that the FDA approval process does not preclude drug companies from providing better warnings than what are required.

In particular under the Hatch-Waxman statute, the Court said that warning labels for generic drugs must be the same as those for brand name drugs approved by the FDA, and therefore failure to warn claims against manufacturers of generic drugs are preempted by federal law. 

The decision affecting drug injury law is especially troubling in light of the fact that 75% of all prescriptions are filled with generic drugs.

The decision likewise creates an inconsistency between the generic drugs and brand name drugs in that now different standards apply to the two. The decision creates the incentive for manufacturers to push more generic drugs than brand name drugs and thereby potentially decrease their liability.  

See off-label drugs for more information on that topic.See also the numerous other articles on this site dealing with drug injury and the general concept of federal preemption and the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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Obstetric Medical Malpractice http://www.brienrochelaw.com/blog/obstetric-medical-malpractice/ http://www.brienrochelaw.com/blog/obstetric-medical-malpractice/#comments Sun, 27 Nov 2016 17:51:20 +0000 http://www.brienrochelaw.com/?p=9633 Obstetric Medical Malpractice from Brien Roche Law

Obstetric medical malpractice is most often seen in birth injuries such as brachial plexus and cerebral palsy but may also be seen in certain actions, omissions or results of the birthing process as set forth below. Vaginal Birth After Caesarean … Continue reading

for more personal injury news and views visit, Brien Roche Law

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Obstetric Medical Malpractice from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Obstetric Medical Malpractice

Brien Roche


Obstetric medical malpractice is most often seen in birth injuries such as brachial plexus and cerebral palsy but may also be seen in certain actions, omissions or results of the birthing process as set forth below.

Vaginal Birth After Caesarean

Vaginal birth after caesarean is on the rise. The traditional rule in obstetrics has been that once a woman has a cesarean then any future births will be by cesarean.  With some impetus from the National Institute of Health there has been some change in that philosophy according to medical malpractice attorney Brien Roche.  In addition, insurance companies and HMOs, in their attempt to hold down cost, have attempted to discourage physicians from performing cesareans.  

The most significant complication from vaginal birth after cesarean is the risk of uterine rupture.  Uterine rupture typically leads to oxygen loss for the baby resulting in significant complications.  The dangers associated with uterine rupture are further complicated by the fact that it is sometimes difficult to determine if in fact there has been a uterine rupture.  That is, not all women experience the same symptoms.  Some patients will report a sharp pain while others may report no pain.  That makes the dangers associated with uterine rupture even more stark because typically the window of opportunity to deliver a baby that will not be brain damaged is approximately 18 minutes after uterine rupture.

In  making a decision about performing a vaginal birth after a cesarean there are several risk factors that need to be considered:

  • Was the cesarean a low transverse uterine incision or was it a T-shaped uterine incision.
  • Will the mother’s pelvis accommodate safe passage of the fetus.
  • Are there any medical complications such as herpes, placenta previa or abnormal fetal presentations
  • Is the hospital a tertiary care center that can mobilize the necessary forces to perform an emergency cesarean on short notice.

Emergent C-Sections

Emergent c-sections are most often called for when the fetal heart rate (FHR) drops down to 60 beats per minute. The American College of Obstetricians and Gynecologists and also the American Academy of Pediatrics have established guidelines that call for the hospital to be able to begin the c-section within 30 minutes of the decision being made to operate. 

Some dispute has arisen over the last few years as to whether or not that 30 minute rule is adequate. Many providers now indicate that the 30 minute rule governing the time from the decision to operate to the first incision should be shortened to within 20 minutes. Many providers have actually been able to achieve a median performance time of 10 minutes. The need for the shortened time is to keep the interval between the onset of decreased heart rate and c-section delivery to less than 25 minutes under the worst of circumstances.

The National Institute of Child Health and Human Development in 2009 recommended that the monitoring of FHR patterns be coordinated with insuring that all providers involved in the care of such infants are able to read,interpret and appropriately respond to FHR readings; all providers be trained to recognize when an emergent c-section may be necessary and are authorized to begin the process even though the attending may not be present;an attending physician must be immediately available to resolve any obstetric emergency;and the hospital has the necessary personnel and resources to assist.

Inducing Birth After Water Breaks?

The traditional notion has been over the years that when a woman’s water breaks during pregnancy then it is time to deliver.  If the pregnancy is in fact at term, most obstetricians will typically recommend induction of labor if it has not already begun.  Induction of labor involves the use of drugs to bring on contractions.  The concern, at that point, is the possibility of infection. There is the risk of bacteria in the lower genital tract migrating into the uterus and thereby threatening the fetus which is no longer sealed inside the amniotic sack reports medical malpractice attorney Brien Roche. 

A 1996 study published in the New England Journal of Medicine dealing with 2,500 women concluded that mothers were less likely to experience infection or post-partum fever if they underwent immediate induction after their water broke. 

It is now believed that study may be somewhat “tainted” because what frequently happens at this stage of pregnancy, if labor is not induced, are frequent vaginal exams which thereby increase the risk of introducing bacteria into the vaginal area.

In large measure it should be a matter of choice for the mother as to whether or not she wants to have labor induced after her water has broken or simply await the natural onset of labor for at least 24 hours.

Electronic Fetal Monitoring and Obstetric Medical Malpractice

Electronic fetal monitoring medical malpractice can have devastating consequences. Fetal monitoring is the norm in monitoring a baby’s  progress during the process of labor.  The normal baseline fetal heart rate is 110 to 160 beats per minute.  Levels below 110 beats per minute are called bradycardia and rates above 160 are tachycardia.  Another component of fetal heart rates is what is referred to as variability which is the beat-to-beat changes in heart rate.  That variability can be every bit as important as the baseline.  There are a number of subtleties in terms of variability readings.  Marked variability can be an indication of fetal distress but minimal or absent variability can also be an indicator of fetal distress.Medical malpractice attorneys handling these types of cases need to be sensitive to these subtleties.

There are a number of things that can cause hypoxia (reduced oxygen delivery) and lead to fetal asphyxia (a buildup of acid in the blood and blood gas and pH abnormalities that can cause brain damage).  These conditions are such things are decreased blood flow to the placenta, decreased blood flow through the placenta to the fetus or compression of the umbilical cord.  Any of these conditions can effect the fetal heart rate. 

Many insurance companies balk at the performance of a cesarean section because of the added expense.  Cesarean section, however, is the one means that can quickly remove a fetus in distress and minimize the risk of injury. 

Unfortunately, there is no consensus in the medical community as to the standard of care to be employed in reading fetal  heart rates in order to make a decision as to when a cesarean section should be performed. 

A baseline rate of 100-119 beats  per minute (BPM) is suspicious of fetal distress.  A rate of 80-100 BPM is “nonreassuring” and may indicate impending fetal loss.  A rate of less than 80 BPM is ominous.  A rate of more than 160 BPM is frequently caused by fever in the mother but may also be a response to hypoxia.

The most important information for diagnosing fetal distress is the information that is provided in the form of “deceleration patterns” and “variability”. 

Within the fetal heart monitor strip is reported not only the fetal heart rate but also uterine contractions.  With the onset of a uterine contraction the fetal heart rate typically should decrease and reach its lowest point at the peak of the contraction and then steadily return to baseline as the contraction subsides.  This pattern is considered normal. 

A late deceleration pattern is considered abnormal.  Late deceleration means that the fetal heart rate descends after the contraction has begun and reaches the lowest point after the contraction peaks and then returns to the baseline after the contraction ends.  This late deceleration is caused by a decrease in the oxygen content of the blood flowing to the fetus. 

A variable deceleration shows no regular pattern and the onset of the contraction is unrelated to the onset of the drop in the fetal heart rate.  These decelerations occur because of cord compression. 

The appropriate treatment for evidence of fetal distress is to prepare for a cesarean section.  Less drastic measures that may be implemented before making a decision on cesarean section are such things as:

  • changing the mother’s position
  • discontinuing any oxytocic drugs
  • providing additional oxygen to the mother by face mask
  • increase the mother’s hydration
  • add saline solution directly into the amniotic fluid 

Periventricular Leukomalacia

Periventricular leukomalacia misdiagnosis constituting medical malpractice is seen sometimes with premature babies. PVL is a form of brain injury. These infants typically go on to display developmental problems and very often develop cerebral palsy or epilepsy.  Periventricular leukomalacia is frequently misdiagnosed due to the absence of radiological studies of the brain shortly after birth.  On an MRI periventricular leukomalacia will be typified by scarring around the ventricles.  Premature babies who have intraventricular hemorrhage (IVH) are at increased risk for developing PVL. Its existence is sometimes asserted as a defense to cerebral palsy claims.Medical malpractice attorneys pursuing cerebral palsy claims need to be especially sensitive to the presence of this condition. 

The symptoms that are displayed by infants having PVL are frequently very subtle.  In fact, most premature infants are actually asymptomatic.  The symptoms may include such things as decreased tone in the lower extremities, increased tone in the neck extensors, apnea ,bradycardia, irritability, poor feeding or seizures.To properly analyze whether PVL exists it is necessary to have the radiolgical studies reviewed by a pediatric neuroradiologist. 

Infants that are mechanically ventilated after birth due to their prematurity are at greatest risk.

If your baby has been injured as a result of a misdiagnosis of periventricular leukomalacia contact us.

Neonatal Hypoglycemia

Neonatal hypoglycemia misdiagnosis can constitute medical malpractice and can result in brain damage or death to an infant.  Hypoglycemia to a newborn can arise even though the baby is neurologically fine at birth and free of any apparent disorder. 

A newborn is particularly in need of glucose because the baby’s brain is quite vulnerable since it is still maturing and growing neurons which use glucose as their main source of energy.  If the amount of glucose is insufficient, then the neurons may die.  Neuron loss in certain parts of the brain can result in severe deficits.  Sometimes hypoglycemia can exist with other conditions that further compromise the delivery of glucose to the baby’s brain thereby producing even more significant disabilities. 

There are a number of factors that may increase the risk of a baby having hypoglycemia.  Fetal distress and any condition that prolongs labor are potential risk factors since most of the newborn glycogen is accumulated during the final trimester.  As such, premature babies are at greater risk of hypoglycemia.  The classic signs of hypoglycemia are twitching, tremors or an exaggerated startle reflex.  Other potential signs are a failure to maintain normal body temperature.  This may disguise the tremors with parents simply thinking that the baby is chilly.  In fact, there is more to it than that. 

Neonatal hypoglycemia is treatable and curable if it is promptly diagnosed.  The delay in proper diagnosis worsens the outcome.These are factors that both the obstetrician and the neonatalogist must be on the lookout for. 

For more information on obstetrics see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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Birth Injuries http://www.brienrochelaw.com/blog/birth-injuries/ http://www.brienrochelaw.com/blog/birth-injuries/#comments Sun, 27 Nov 2016 17:18:34 +0000 http://www.brienrochelaw.com/?p=9632 Birth Injuries from Brien Roche Law

Birth injuries can be seen in a variety of forms and in some instances may he the result of medical malpractice by the obstetrician. Cerebral Palsy Cerebral palsy traditionally has been considered to be a product of oxygen deprivation during … Continue reading

for more personal injury news and views visit, Brien Roche Law

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Birth Injuries from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Birth Injuries

Brien Roche


Birth injuries can be seen in a variety of forms and in some instances may he the result of medical malpractice by the obstetrician.

Cerebral Palsy

Cerebral palsy traditionally has been considered to be a product of oxygen deprivation during the birthing process.  We now know that the term “cerebral palsy” is not limited simply to injuries flowing from the birthing process.  It may well be that the injury began in utero, i.e. before birth or it could even be that the injury is a product of some post-birth failure to resuscitate.

The term cerebral palsy is non-specific.  Literally all it means is a palsy or tremors that are flowing from the cerebrum which is the largest segment of the brain.

The symptoms themselves can involve not only the brain but also the entire central nervous system and frequently involve delays in movement, learning, hearing, seeing and thinking.  The symptoms themselves can involve simply fine motor skills or may even result in an inability to walk. 

A small number of children develop cerebral palsy as a result of brain infections or head injury from an accident or fall. 

Some recent advances in terms of the treatment of cerebral palsy have indicated that the injection of stem cells from a baby’s umbilical cord may actually promote healing and better muscular control for young children that are exhibiting symptoms of cerebral palsy.  

Although there is no cure for cerebral palsy, there are alternative methods of  treatment.  The earlier the treatment then the better the chances are of a dramatic recovery.  The traditional forms of treatment were physical therapy, occupational therapy and speech therapy.  Some children have seizure disorders and those can frequently be controlled by medication.  Surgery is an option to correct tight muscles.

The National Institute of Neurological Disorders and Stroke (NINDS), which is a branch of of the National Institute of Health, maintains a website on cerebral palsy which is an excellent source of information.  See www.ninds.nih.gov/disorders/cerebral_palsy.  

Shoulder Dystocia Causes Brachial Plexus

Shoulder dystocia is variously defined. The American College of Obstetricians and Gynecologists defines it as a delivery that calls for additional obstetric maneuvers following the failure of gentle downward traction on the fetal head to accomplish delivery of the shoulders. 

A more accurate definition of shoulder dystocia is any circumstance where the baby’s shoulders have difficulty getting through the mother’s pelvis. 

The phenomenon of shoulder dystocia is typically what produces brachial plexus injuries which are also call Erbs Palsy. Sometimes there can arise some issue as to the association between the brachial plexus injury and the phenomenon of shoulder dystocia. A fairly comprehensive study from Johns Hopkins indicates that permanent brachial plexus injuries were almost always associated with shoulder dystocia. The defense contention to the contrary probably has little merit. Volpes Treatise on Pediatric Neurology confirms this association. 

Children with these types of injuries have a physical deformity that affects them throughout the remainder of their lives and as such these injuries are frequently quite devastating.The injury itself involves the tearing of the nerves on the affected side of the upper body.

See the page on medical malpractice on this site and also the pages on Wikipedia.

Brachial plexus injuries occur at the combination of nerves that begin in the upper spine and travel through the neck, shoulder and arm to the hand. Damage to these nerves can result in a loss of sensation or, in some cases, complete paralysis in the arm, shoulder and hand area.  Most brachial plexus injuries resolve within six months of birth.  However, a certain percentage are permanent and devastating. 

Most of these injuries are caused when the obstetrician applies excessive force during delivery in response to what is perceived to be shoulder dystocia.  Shoulder dystocia is simply a failure of one of the babies’ shoulders to readily follow the head during the course of the vaginal delivery.  One shoulder may become trapped either on the mother’s pubic bone or in the hollow of the mother’s tail bone. 

There are a number of different procedures that may be  used to dislodge the baby’s shoulder from such entrapment.

There are a number of factors that may place a baby at risk of should dystocia:

  • an excessively large baby
  • maternal diabetes
  • a mother that is overweight
  • a history of vaginal deliveries involving shoulder dystocia
  • a precipitous second stage of labor

The role of the physician in the delivery process is to recognize the existence of these risk factors and to make a disclosure to the mother of the existence of these factors so that the mother can then make an informed decision about having a vaginal delivery or a cesarean section.

Of the factors mentioned above one of the most significant is the excessive weight of the baby.  This frequently is difficult to determine.  One common marker of fetal size is what is called fundal height which is the distance from the pubic bone to the top of the  uterus measured in centimeters.  This is recorded during each prenatal visit.  The number of centimeters should correspond to the number of weeks of the pregnancy.  At 20 weeks of pregnancy, the fundal height should be 20 centimeters.  A deviation of more than two centimeters typically requires some further investigation to determine if the fetal weight is being properly measured.

Another significant risk factor is maternal diabetes.  This is something that all pregnant women should be tested for. 

It is not uncommon that the dystocia is induced by the physician during the course of delivery.  This can result from a forceps or a vacuum extractor delivery.  By using these tools the doctor accelerates the travel of the baby through the pelvis thereby preventing the normal folding and rotation of the shoulders and thereby enhancing the risk of dystocia. 

Aside from the brachial plexus injuries, another consequence of shoulder dystocia is loss of oxygen and/or blood flow to the brain during the course of delivery.

If you or a loved one has had a child with the diagnosis of brachial plexus injury or shoulder dystocia with resulting permanent damage, contact us

Hypothermia in Hypoxic Birth Injuries

Hypothermia in hypoxic birth injury cases is a mode of treatment for brain injured infants shortly after birth which has been shown to have significant results as far as reducing the risk of death or significant neurological impairment. The cooling blanket is applied to the head or body and is designed to reduce the body temperature to 91.4°F. Ideally these infants should receive the hypothermia within six hours after birth.

There are several criteria to be employed as to which babies may be eligible for this type of treatment but the most significant  is an assessment of grade II or III encephalopathy based on the Sarnat Scale.

See also an article on brain damage on this site.

for more personal injury news and views visit, Brien Roche Law

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Product Liability Claims Around The Home http://www.brienrochelaw.com/blog/product-liability-claims-around-the-home/ http://www.brienrochelaw.com/blog/product-liability-claims-around-the-home/#comments Sat, 26 Nov 2016 22:48:15 +0000 http://www.brienrochelaw.com/?p=9627 Product Liability Claims Around The Home from Brien Roche Law

Product Liability Claims Around the Home-Burn Injuries Burn injuries around the home are a common phenomenon.  The products that may be the source of the burn are varied: household furniture mattresses or mattress pads electronic toys lighters stoves Household furniture … Continue reading

for more personal injury news and views visit, Brien Roche Law

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Product Liability Claims Around The Home from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Product Liability Claims Around the Home

Brien Roche


Product Liability Claims Around the Home-Burn Injuries

Burn injuries around the home are a common phenomenon.  The products that may be the source of the burn are varied:

  • household furniture
  • mattresses or mattress pads
  • electronic toys
  • lighters
  • stoves

Household furniture that is cushioned with polyurethane foam may be a time bomb.  This is a petroleum based product that has some of the same combustion characteristics as gasoline.  In addition, this type of foam consumes oxygen as it burns thereby further endangering the occupants.  It is commercially feasible to make furniture reasonably safe at a reasonable cost.  Furniture covering material is available that will act as a fire retardant.  Fire barrier materials that are designed to go between the fabric and the highly flammable foam have been produced for decades.  In addition, the potentially combustible material may be treated with fire retardants.

It is well known that furniture may be exposed to small ignition sources around the house.  In light of that manufacturers have a duty to design their products without defects in contemplation of those foreseeable uses and misuses.

Other products such as mattresses and mattress pads, electronic toys, and lighters are all subject to federal regulations.  Those regulations may be the source of certain standards to establish liability.

Household stoves that have a opening oven door that is low enough to the floor for a child to climb on may present a hazard of tipping with resulting serious injury.  Both the American National Standards Institute and Underwriter’s Laboratory have issued standards to deal with this issue.

In looking at burn injury cases there are several things to be considered:

  • There are several governmental and non-governmental agencies that may be the source of certain standards such as the National Institute of Standards and Technology which is a governmental agency, the U. S. Fire Administration which is another governmental agency and the Consumer Product Safety Commission, another governmental agency.  The National Fire Protection Association and the National Association of State Fire Marshalls are both private agencies but they have conducted extensive testing relating to fires.
  • Evidence of a recall notice is compelling evidence and may be admissible at trial on the theory that it shows that the defect existed when the product was in the manufacturer’s hands.
  • The manufacturer may contend that it should not be held liable on the grounds that the plaintiff is an unintended user.  In general, the intended use of a product includes any use that is reasonably foreseeable to the seller.  A particular use may be considered foreseeable even if the precise manner in which the injury occurred was not.
  • The burning characteristics of the product should be fully developed by showing the rate of heat release, temperatures at various locations in the product, the way in which smoke, carbon monoxide and other by-products are generated and the rate at which oxygen is consumed.

Product Liability Claims In The Home-Smoke Detectors

Smoke detector defects can lead to the death or injury of all of the occupants of a residence. This is the type of product liability claim that should never arise. Smoke detectors fall into categories of either ionization or photoelectric smoke detectors.  The vast majority are ionization detectors.  The ionization detectors emit a beam of  ions in a chamber and when the smoke enters the chamber the smoke particles obstruct the flow of ions thereby causing a reduction of current flow and thereby activating the alarm. 

Photoelectric detectors emit a beam of light into a chamber and when the smoke particles enter the chamber and interfere with the beam the alarm is activated.

Typically, ionization detectors respond more quickly to the presence of numerous small particles of smoke such as those produced by by a flaming or fast fire.  Photoelectric detectors, on the other hand, usually respond more quickly to larger particles such as those produced by a smoldering or a slower spreading fire.

The time frame between the activation of a photoelectric detector and the activation of an ionization detector can be considerable.  Typically, the photoelectric detectors tend to give an earlier warning.

In any fire case involving a potentially faulty smoke detector it is critical that the detector itself be obtained or that at least its security be maintained.  It is also important of course to know who else is conducting any inspections of the smoke detector. 

The thrust of any such case involving an alleged smoke detector is that a timely warning from a  properly designed and functioning detector would have prevented injury or at least limited the injury to something minor. 

Product Liability-Batteries

Lithium-ion batteries are almost universal.  You find them in cell phones, laptop computers and a host of consumer devices.  The primary reason that Smart Phones are as thin as they are is because of these types of batteries.  There are believed to be more than 4 billion such batteries that were made simply during the year 2012.  It has been discovered however, that they can pose a danger in that they may explode or catch on fire spontaneously.  They are supposed to shut down rather than causing a fire.  The problem is that the separator that separates the positive cathode from the negative anode sometimes can be broken, which can then allow contact between the negative and positive layers which generates a great deal of heat causing the electrolyte solution within the battery to expand rapidly and then either ignite or explode.  The battery is like most batteries in that it has a positive cathode and a negative anode and the electricity is generated by the electrons or, more precisely, the negative ions passing through the separator to the positive side.  As long as this is done in the anticipated controlled fashion, then all that is generated is electricity. 

It is believed that batteries carried in cargo planes were the potential causes of two fatal crashes in recent years according to the Airline Pilot Association International. 

Model airplane hobbyists are also users of these types of batteries to allow prolonged flight for their model airplanes, have long known that these types of batteries explode frequently upon impact.

Drop Side Cribs

On December 15, 2010 the Consumer Product Safety Commission voted unanimously to ban the manufacture, sale and resale of cribs which have a side rail that moves up and down. The product liability hazard was simply too great.  The purpose of such a side rail is to allow parents to more easily lift the child from the crib.  The problem with the side rail is typically an assembly problem which can lead to the drop side rail partially detaching from the crib creating a V-like gap between the mattress and the side rail where the baby can get caught and potentially suffocate or strangle. 

This new standard published by the Consumer Product Safety Commission will take effect in June of 2011 and will prohibit hotels and child care centers from using drop-side cribs although these facilities would have two years to purchase new cribs.The new regulation however puts facilities on notice of the hazard and as such they would be well advised to discontinue use of such cribs immediately rather than waiting two years.

Bunk Bed Entrapment

Bunk bed entrapment of a small child can result in serious injury or death.  The space between the bed frame and the guardrail on some bunk beds is large enough for a child’s body to slip through but not for the head sometimes resulting in the child in effect hanging to death.  This product liability issue is being addressed by some manufacturers.It is well known that children over the age of one begin trying to climb out of their beds.  With their new found mobility and lack of judgment they are excellent candidates for entrapment in bunk beds.  The standard across the industry typically is that children of that age should not be put on the top bed of a bunk bed. 

Certain standards over the years have been published by a number of different private and public organizations such as the American Furniture Manufacturers Association (AFMA), the Consumer Product Safety Commission and the American Society for Testing and Materials.  All of these are important sources to check in terms of establishing standards in regards to bunk beds.

In handling cases of this nature there are several things that are critical:

  • Get possession of the bed.
  • Measure the bed and photograph the bed and videotape the process of taking such measurements.
  • Check any labeling on the bed to identify the manufacturer and the date of manufacture.
  • Locate the retailer since there may be allegations made by the manufacturer that the retailer made some modifications to the bed. 
  • Get a copy of any 911 calls that were placed relating to the incident along with a copy of any pertinent governmental reports.

Stove Range Defects

Stove range defects are a hidden hazard in many homes and apartments thereby giving rise to product liability claims.  A serious hazard that many consumers simply are not aware of is that of range tipping.  If a range tips as a result of a child putting weight on an open door, then that typically results in burns from the forward tipping range.  Many ranges are inherently unstable when their oven door is open.  Once that door is open then it is  typically low enough for a child to climb on.  That forward tipping can be initiated by a weight of 30 pounds or less.

Underwriters Laboratories has published certain standards to prevent tipping.  This has required manufacturers to develop certain anti-tipping brackets to secure ranges to either the floor or the wall.  There are a number of limitations on these brackets but if properly installed they can reduce the likelihood of range tipping.

In a suit involving range tipping the obvious defendants are the product manufacturer, the retailer, the installer and, if in an appartment, then the landlord.  There may be some difficulty identifying the actual manufacturer although this can be determined by getting the identification number on the UL label which will then permit identification of the entity that submitted the product to UL for testing.

Claims against landlords and management companies may be based on the theory of a failure to insure proper installation or retrofitting of these stoves.  The Institute of Real Estate Management has provided some standards in regards to these products.

It may be necessary to retain a competent engineer with knowledge of safety engineering to act as an expert witness as to how these stoves and ranges should have been installed.

The concept of post-sale duty to warn of defects is something that also needs to be considered.  The National Safety Council has published a protocol recommending when a company should issue post-sale notices.  Likewise, the Consumer Product Safety Commission has a Recall Handbook that was published that may be helpful in understanding when post-sale notices should be given.

Product Defect Claims In the Home-Hydrocarbon Refrigerators

Refrigerators currently sold in the United States either have freon in them or have hydrofluorocarbon in them as a refrigerant.  Freon is an ozone depleting substance when it enters the atmosphere.  Hydrofluorocarbon, on the other hand, presents problems as far as global warming in that it remains in the atmosphere for decades absorbing radiation that would otherwise be released into space.Hydrocarbon refrigerators, on the other hand, are cooled by carbon and hydrogen and these natural refrigerants do not degrade the ozone and are easily broken down by the sun thereby posing no global warming hazard.There are however some product liability issues relating to these type of refrigerators that product liability lawyers should be sensitive to. 

The hydrocarbons in these new refrigerators pose some potential hazard in that hydrocarbons are flammable and there have been some isolated incidents of exploding hydrocarbon refrigerators. 

General Electric plans to sell their first hydrocarbon household refrigerators in the U. S. in June of 2011.  The Environmental Protection Agency has not yet given their approval to these refrigerators but that is anticipated.  In 1994 the Environmental Protection Agency had ruled that hydrocarbon refrigerants were too risky to be used in household refrigerators.  It appears that will change.  Hydrocarbons are already found in many household appliances and substances such as gas stoves, furnaces, bathroom cleaners and air fresheners. 

For more information on product liability see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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