Medical negligence occurs when a patient suffers injury or harm as a result of a doctor’s mistreatment. Whether it was a missed or wrong diagnosis, improper treatment, or failure to treat in general, there are medical negligence laws in effect to protect the patient and provide them with the recourse of prosecuting the offending party.

Although every state has them in place, medical negligence laws vary among them. There are, however, certain things that are universal, regardless of which state the incident occurred within.

Generally, medical negligence law holds that in order to be successful, a patient must prove four things in their case. These four things are as follows:

• Duty of care. It must be proven that the defendant did, in fact, have a responsibility to provide care for the plaintiff. This is usually relatively simple to prove in cases where it is documented with medical records that the plaintiff was a current patient, under the care of the offending physician at the time of the incident.

• Failure of said duty of care. The plaintiff has the burden of proving that the defendant did not act with the proper care in their diagnosis or treatment. Whether it was deliberate or accidental, there must be sufficient evidence to support this claim in order for the plaintiff to be successful.

• Resulting injury or harm. It’s not enough to just show proof that a doctor has failed in their duty of care. Medical negligence law requires that the plaintiff must then be able to prove that they suffered injury or harm as a direct result of the doctor’s negligence. Medical records documenting follow up treatments, and expert witnesses and reports can all be used to support this part of a claim

• Proof of damages. This is perhaps the heart of a malpractice claim, because if there are no damages, or none that can be proven, there is essentially no case. The plaintiff must provide sufficient evidence that they have suffered damages, either financial or emotional, in order to win their claim.

It’s safe to say that these four things must be present in order to move forward with a medical negligence lawsuit, regardless of what state the incident occurred. If any one of them is not present, the law will not support the claim and it will most likely never make it to litigation.

Medical negligence laws are in place to protect patients from the improper treatment by a doctor or medical professional. They vary from state to state, and are complex and confusing. If you feel that you have been a victim of malpractice, speak to an attorney who is experienced medical negligence law right away.

Drug giant, Pfizer, has reached an agreement that will ultimately settle most of the lawsuits filed against the company over the side effects of two of it’s drugs, Celebrex and Bextra. It expects that the $894 million dollar agreement will settle more than 90 percent of the claims filed because the drugs are alleged to have caused major side effects to the plaintiffs - heart attacks and strokes.

Pfizer hopes that this will be accomplished by year’s end and also hopes that remaining claimants will be included in the settlement.

General Counsel Amy Schulman told The Associated Press that Pfizer will fight any remaining personal injury suits with court motions or at trial. “I don’t think either side has an interest in protracting this,” Schulman said in an interview.

Out of the total settlement, $745 million will go to settle personal injury cases, $60 million will cover settlements with attorneys general in the 33 states and the District of Columbia, and $89 million will cover consumer fraud class action cases over reimbursement for money spent on the two drugs. Two additional states, Louisiana and Mississippi, still have pending cases regarding Pfizer’s promotion of the drugs.

Schulman has indicated that Pfizer had been negotiating with opposing lawyers for some time. “Litigation can be distracting, and putting these matters behind us helps our shareholders and, most importantly, patients and doctors,” Schulman said.

Pfizer had removed Bextra from the market in 2005 after Merck & Company had removed it’s painkiller, Vioxx, from the market. Merck has begun paying a 4.8 billion dollar settlement that ends about 50,000 lawsuits that claimed Vioxx caused heart attacks, strokes and death.

Celebrex is currently the only Cox-2 inhibitor that the Food and Drug Administration has allowed to stay on the market. These drugs - Bextra, Celebrex and Vioxx - were superior to the usual nonsteroidal anti-inflammatory drugs(NSAIDs) like aspirin, ibuprofen and naproxen because they inhibited only the body enzymes that produced the inflamation(Cox-2). The NSAID drugs also inhibited the Cox-2 enzyme but, in addition, inhibited the Cox-1 enzyme which is important in keeping the mucous lining of the stomach intact. Without the mucous lining, stomach ulcers and bleeding could occur.

The 9th Annual Chronic Illness and Disability conference will explore issues involving the transition from pediatric to adult-based care. The two day conference, which will be held at Baylor College of Medicine in November, is open to families dealing with cerebral palsy and other disabilities.

Parents, teens and young adults can attend the conference to hear leading experts speak about legal, educational and medical issues faced by transitioning disability patients. Topics to be covered include:

• Mental health and family support
• Considerations for young people with developmental disabilities
• Vocational transition services (during and after high school)
• Funding for transition services
• Insurance options and Medicaid appeals
• Political issues and advocacy

To find out more about the conference or to register, visit the Baylor College of Medicine website.

The National Highway Traffic Safety Administration (NHTSA) once again has launched a “pre-emptive” strike against state personal injury suits by inserting a pre-emption provision in a new rule governing seat belt safety, according to consumer and trial lawyer groups.

The rule, known as the “designated seating position” rule, not only revises how it is determined how many seat belts are required in a vehicle, it has language that very specifically would pre-empt  state suits related to seat belt injuries.

Joan Claybrook, president of Public Citizen and a former administrator of NHTSA, said the agency has issued safety standards with such pre-emption language 20 times in the past three years.

“The fear of lawsuits is one of the greatest incentives automakers have to build stronger and safer vehicles,” she said. “For NHTSA to suggest that automakers should have blanket immunity from consumer liability lawsuits means that more defective vehicles will be manufactured, fewer will be recalled, the public will have less information about injury causation and more families will needlessly lose loved ones on our roads each day.”

The business community sees pre-emption differently saying that pre-emption gives them one set of rules to play by instead of having to deal with the federal regulatory system as well as the tort and jury systems.

Came across an interesting article about pre-emption written in January of 2008 - The Emerging Threat of Regulatory Preemption - written by David C. Vladeck.  In his article he writes about how pre-emption has been used in four  federal agencies:  Food & Drug Administration(FDA), Consumer Product safety Commission(CPSC), Federal Railroad Administration(FRA) and National Highway Traffic Safety Administration.   His conclusion:

While the public watches the Supreme Court wrestle with the preemption questions presented in Reigel v. Medtronic, and perhaps in Wyeth v. Levine, the more troubling action is taking place out of public view. The quiet but insidious erosion of state tort law remedies — and the health and safety benefits that are associated with them — continues unabated. Our health and safety agencies have been subject to a hostile-takeover by an Administration that cares more about constituent-serving outcomes than their statutory mission to protect the public. The winners will be the Administration’s corporate patrons who will be given the immunity from tort liability they never could have gotten from Congress. The loser will be the tens of thousands of Americans injured through no fault of their own but who will no longer have any means of redress.

A report in the current New England Journal of Medicine that focuses on heart transplants for babies is bringing the issue of declaring donors dead to the forefront. The standard has been that a donor’s organs are only donated after the donor has been declared brain dead. Once declared brain dead, the donor is put on a ventilator to keep oxygen flowing to the organs until they can removed.

The procedure being reported is called donation after cardiac death. In the cases of the infants in the report they were on life support and had little brain function. However, they did not meet the criteria of brain death. Within minutes of being off the ventilator their hearts stopped. They were successfully transplanted to other infants.

“It seemed like there was an unmet need in two situations,” said Dr. Mark Boucek, who led the study at Children’s Hospital in Denver. “Recipients were dying while awaiting donor organs. And we had children dying whose family wanted to donate, and we weren’t able to do it.”

Donation after cardiac death raises both legal and ethical issues because it involves laws concerning when organs can be removed and because it involves children.

The procedure is being encouraged by the federal government, organ banks and others as a way to make more organs available and give more families the option to donate. However it has critics who maintain, among other things, that the definition of death is flawed, and that more emphasis should be on informed consent and the chances of survival in cases of severe brain damage.