Botox Lawsuit: $6.75 Million Dollar Award

The Burlington Free Press reports on a $6.75 million dollar award for a jury trial in Burlington federal court brought on behalf of a New York couple whose son was treated with Botox for his cerebral palsy symptoms. The award includes compensatory and punitive damages.

The newspaper writes:

"...a Burlington doctor in 2010 recommended the family inject Botox as treatment. In an interview with the Burlington Free Press ... [the parents]... argued that Allergan does not properly warn the public of potential dangers of using the product.

When the first dose of Botox did not work, the doctor administered a second, larger dose a few years later, according to court papers. The boy suffered a severe allergic reaction, which included facial swelling, slurred speech, respiratory difficulties, vomiting and seizures, and he was rushed to the emergency room at Fletcher Allen Health Care."

Botox for pediatric spasticity is not approved by the FDA and is considered an "off-label" use.

An earlier article provides more information on this lawsuit: Family sues over pediatric Botox treatment.

Vermont Highway Deaths Down - Vermont Highway Safety Alliance

Vermont Public Radio carries this story about a significant decline in highway deaths on Vermont highways for 2014. Nina Keck reports that:

"According to the Vermont Highway Safety Alliance, the number of traffic fatalities is half of what it was a year ago. State transportation officials aren’t sure why, but they say it may be due to better and more widely shared data.

By mid October of last year, 64 people had died in traffic crashes in Vermont. But so far this year, the number of roadway fatalities is 32, a dramatic drop."

Officials say they cannot point to one reason. Some believe recent efforts to raise awareness of distracted driving and pass a new law prohibiting use of hand held devices while driving in Vermont is partially responsible.

Listen to and read the full story here: Vermont Highway Fatalities Plunge In 2014

Also, see statistics and a map of fatalities on Vermont highways at the Vermont Highway Safety Alliance website: highwaysafety.vermont.gov

Vermont's Bernie Sanders Exposes Unacceptable Rate of Death in US Hospitals Due to Medical Errors

Preventable medical errors in hospitals are the third leading cause of death in the United States, a Senate panel was told on July 14. Only heart disease and cancer kill more Americans.

“Medical harm is a major cause of suffering, disability, and death – as well as a huge financial cost to our nation,” Sen. Bernie Sanders (I-Vt.) said at the outset of the hearing by the Senate Subcommittee on Primary Health and Aging.

“This is a problem that has not received anywhere near the attention that it deserves and today I hope that we can focus a spotlight on this matter of such grave consequence,” added Sanders, the panel’s chairman.



The Journal of Patient Safety recently published a study which concluded that as many as 440,000 people die each year from preventable medical errors in hospitals. Tens of thousands also die from preventable mistakes outside hospitals, such as deaths from missed diagnoses or because of injuries from medications.

The new research followed up on a landmark study, To Err is Human, conducted by the Institute of Medicine 15 years ago, when researchers reported that as many as 98,000 people die in hospitals each year due to preventable medical errors. Experts now say that figure was too low and hospitals have been too slow to make improvements.

There has been some progress, Dr. Peter Pronovost of Johns Hopkins University testified. Yet thousands of patients still are dying unnecessarily from infections, preventable blood clots, adverse drug events, falls, over exposure to medical radiation and diagnostic errors. “We need to declare right now that preventable harm is unacceptable and work to prevent all types of harm,” Pronovost said.

Compared to the rest of the world, the United States is about average. “While average is OK, given that we spend more on health care than any other country we should be a lot better. Our high spending is not buying us particularly safe care,” said Dr. Ashish Jha of the Harvard School of Public Health.

Two Prominent Vermont Trial Attorneys Start New Law Firm

John P. Maley and Christopher J. Maley, previously of Sylvester & Maley, Inc. have started a new law firm dedicated solely to personal injury plaintiff law, Maley and Maley PLLC. Areas of practice include:

• Personal Injury
• Medical Malpractice
• Wrongful Death
• Auto and Truck Accidents
• Product Liability
• Recreational Accidents
• Nursing Home Abuse / Neglect
• Insurance Coverage Disputes

The firm is located at 30 Main Street, in Burlington, Vermont. Both attorneys are Burlington natives and have distinguished careers as trial attorneys including being selected for inclusion in the 2014 edition of  The Best Lawyers in America® for medical malpractice law and personal injury litigation. See full press release for more information.

Trial judge Crawford sworn in as Supreme Court justice

Nice piece in Burlington Free Press on Judge Geoffrey Crawford being sworn in. I would post the photo, but that would be wrong. Check it out here: Praised for his skills inside the courtroom and out, Judge Geoffrey Crawford becomes a Supreme Court justice.

Good for Vermont!

Vermont Wrongful Death Case First Requires Federal Insurance Coverage Verdict

Geico Insurance first denied payment to family of women killed in drunk driving auto accident

The Burlington Free Press reported on the wrongful death case that was put on hold due to the need to file a claim in U.S. federal court to get Geico to pay benefits to family of women killed in an auto accident involving a drunk driver: Geico agrees to pay in Borneman case. Geico initially declined to provide coverage. At issue was a “non-owned automobile clause.” As the article states:

"The wrongful-death lawsuit was filed initially in the civil division of Vermont Superior Court, but that case was placed on hold until a federal-court jury could be asked whether Geico must provide coverage. The federal jury deliberated about 90 minutes after a two-day trial before ruling against Geico on Aug. 21."

According to the plaintiff attorney Chris Maley, “Geico made no offer to settle the case prior to trial. After the jury verdict in our favor, Geico has paid the policy limits of its coverage.”  A previous article: Jury: Geico must cover driver in fatal Burlington crash, covers the ruling that cleared the way for the wrongful death case to resume.

Auto Accident Jury Verdict is $43 Million in Vermont

The Burlington Free Press reported last week on the auto crash trial involving a 51-year old woman who was paralyzed in the accident in which the jury verdict was $43 million award — believed to be the largest in Vermont history.

The suit was filed "against the manufacturer of a car seat that allegedly collapsed on her during a 2007 car accident, rendering her a paraplegic... Johnson Controls Inc. of Milwaukee..."

View the full report here: Jury awards $43M to Essex woman paralyzed in crash.

Christopher Maley Elected President of Vermont Association for Justice

BURLINGTON, VT — Trial attorney Christopher J. Maley was elected president of the VermontAssociation for Justice at its annual convention on May 17. Maley will serve as the organization’s president for the 2013-2014 term.

Maley is a native of Burlington, Vermont, and a partner in the law firm of Maley and Maley PLLC of Burlington. He is a plaintiffs trial attorney practicing is the area of personal injury law, medical malpractice and products liability. See full press release here: Chris Maley.

In Vermont, Number of Paid Medical Malpractice Claims Down, Claim Size Up

Statistics gathered by the The Kaiser Family Foundation and published on its website statehealthfacts.org, shows that in 2011, 14 medical malpractice claims were paid in Vermont totaling $$3,622,500. That places Vermont 48th on the list when ranking states from highest to lowest in total dollars paid. The average claim size of $258,750, is slightly higher than the previous year. (In 2010, 19 paid medical malpractice claims totaled $4,551,250 for an average of $239,539 per claim).

Kaiser Family Foundation analysis of data from the National Practitioner Data Bank (NPDB), Public Use Data File (NPDB1110.POR), U.S. Department of Health and Human Services, Health Resources and Services Administration, Bureau of Health Professions, Division of Practitioner Data Banks; accessed 3/27/12. For more on Kaiser's state-by-state medical malpractice claims data at Statehealthfacts.org.

Leahy Bill Would Hold Generic Drug Makers Liable

MONDAQ Abstract: Senator Patrick Leahy (D-Vt.) introduced legislation on April 25, 2012, to counter the effect of the Supreme Court's June 2011 decision in Pliva v. Mensing, 131 S. Ct. 2567 (2011). Mensing held that patients who claim injury from generic drugs cannot sue the manufacturer for failure to warn, even though patients who take the same drug, but the brand name, can. Senator Leahy's bill is intended to undo this perceived inequality. If it succeeds, the bill would not only place a heavy burden on generic manufacturers contrary to the intent of the Hatch-Waxman Act, but it would also ignore the reality of how prescription drugs are used in the healthcare system.

You can read this article on Mondaq: Bill To Undo Mensing Decision And Allow Patients To Sue Generic Drug Makers For Failure To Warn - 26 April 2012

Article by James W. Huston, Julie Park and Erin Bosman

Vermont Second Lowest in Medical Malpractice Payouts

According to the 2012 Medical Malpractice Payout Analysis for Physicians by Diederich Healthcare, Vermont ranks second from the bottom in total payouts for medical malpractice. The analysis shows that six states represent 51.4% of the total payouts for 2011. They are:

New York = $677,866,050
Pennsylvania = $319,710,250
Illinois = $242,108,800
New Jersey = $221,170,750
Florida = $218,123,050
California = $215,519,200

States on the other end of the list are:

South Dakota = $3,033,750
Vermont = $3,938,250
Wyoming = $4,235,000
North Dakota = $4,852,500
Alaska = $6,347,500. 

Vermont House Health Care Bill Includes Closer Look at Med Mal Reform

The Addison County Independent reporting on groundbreaking legislation passed by Vermont House for a single-payer health care system mentions that house bill 202 will also "examine reforms to Vermont’s medical malpractice system..." See the full article: House OKs health care bill with local support.

Vermont Medical Liability/Malpractice Laws

The National Conference of State Legislatures website summarizes the medical liability and malpractice laws by state. The chart is updated as of September 2010. It documents:

• Damage Award Limits or Cap
• Statute of Limitation
• Joint and Several Liability
• Limits on Attorney Fees
• Periodic Payments
• Patient Compensasion or Injury Fund
• Doctor Apologies/Sympathetic Gestures
• Pre-trial Alternative Dispute Resolution and Screening Panels
• Affidavit or Certificate of Merit
• Expert Witness Standards
• Medical or Peer Review Panels

Click here to view Vermont's Medical Liability and Malpractice Laws.

Insure.com Ranks Vermont as Least Costly State for Car Insurance Rates

Foster City, CA March 14, 2011 – Insure.com released a national survey today of car insurance rates by state. The rankings reveal above-average rates in Michigan, Louisiana and Oklahoma and lower-than-average car insurance premiums in Vermont and South Carolina. Surprisingly, a consumer’s driving record is not always the biggest factor in determining prices. Instead, Insure.com found that a number of non-driver-related factors have a significant effect on the average cost of car insurance for consumers in different states.

The percentage of uninsured drivers in a given state, along with other factors like weather and state insurance laws, are in large part what determine the average cost of auto insurance premiums.

According to Amy Danise, senior managing editor of Insure.com,

“We often think of car insurance prices strictly in terms of our own personal details, like our driving record and our coverage amount, but Insure.com’s rankings demonstrate how factors like state laws and the judicial system can be the driving force behind high rates.”

Michigan holds the spot as the most expensive place for auto insurance because it’s the only state that guarantees unlimited personal injury protection payments by law, which is very costly for insurance companies. Louisiana is the second most expensive state because of its judicial system, which generally favors individuals--meaning that insurance companies tend to lose in court, again driving up costs for insurers. By comparison, a representative driver in Vermont pays 87 percent less for insurance coverage than the same driver in Michigan because of the lower level of traffic congestion in Vermont and the large number of insurers competing for business.

Vermont Law Makers Mull Med Mal Reform

An Associated Press report in several news outlets indicates that Vermont legislators are seriously considering medical malpractice reform as a way to lower health care costs.

"In debates over health care reform both at the state and federal level, the issue of medical malpractice claims often gets raised, with a particular focus on the defensive medicine doctors are said to perform to prevent potential lawsuits."

The AP reported the chairman of the Judiciary Committee is recommending a study of the malpractice system as a way to lower costs..

Helmet Safety Advocacy Starts in VT

Dr. Robert Williams, founder of the nonprofit group PHAT (“Protect Your Head At All Times’’), is the helmet safety advocate from Vermont Children's Hospital behind PHAT helmet program...
Williams making headway - The Boston Globe

Heavy Trucks Forced Back onto Vermont Back Roads

Bloomberg news service carries news story about a traffic laws that force heavy trucks off the interstate to use back roads to pass through small towns across Maine and Vermont. The article reports...

"A pilot project that allowed trucks weighing up to 100,000 pounds onto interstate highways in the two states ended in December, forcing trucks filled with petroleum, gravel, paper products and other heavy loads back onto state roads that pass through residential areas and business districts."

To read the full article, click on: Bloomberg Heavy Trucks.

17 Medical Malpractice Claims Paid in Vermont in 2009

According to data compiled by StateHealthFacts.org, a website of the Henery J. Kaiser Family Foundation, there were 17 medical malpractice claims paid in Vermont in 2009 for a total of $6,845,000 — that's an average of $402,647 for paid claims. Vermont ranked 46th in the nation for total paid claims. In 2008, Vermont ranked 45th with $10,908,550 in total claims paid. For more state health data on Vermont, see: Vermont State Health Facts.

Vermont Ranked Healthiest State in the Nation

The 2011 American Health Rankings® puts Vermont on top as the healthiest state in the nation.

Vermont has topped the list of healthiest states for the last four years of published reports. Vermont has had a steady climb in the Rankings for the last twelve years from a ranking of 17th in the 1997 and 1998 Editions.

Vermont's strengths as a healthy state include:

• a high rate of high school graduation with 88.6 percent of incoming ninth graders who graduate within four years,
• ready access to early prenatal care with 83.5 percent of pregnant women receiving prenatal care in the first trimester,
• a low rate of uninsured population at 9.6 percent,
• high public health funding at $177 per person,
• a low percentage of children in poverty at 12.0 percent of persons under age 18 and
• ready availability of primary care physicians with 170.7 primary care physicians per 100,000 population. 

Vermont's challenges include a high prevalence of binge drinking at 17.3 percent of the population and moderate immunization coverage with 89.8 percent of children ages 19 to 35 months receiving immunizations. 

To learn more, you can click here to view the Vermont e-rating report card (or any other state).  

The report also shows that since 1990, Vermont decreased cardiovascular deaths from 401.7 to 241.1 per 100,000 population. These successes indicate that change is possible for all states when there is a united front to make progress on health outcomes.

How Do I File a Lawsuit in Vermont for an Injury?

Vermont Law Pertaining To Personal Injury — A Q&A

If you have been injured and are considering filing a lawsuit for personal injury in Vermont, or if you are a Vermont resident who may have a claim in Vermont arising out of an injury suffered elsewhere, the following Q&A offers some introductory information to help you explore a potential lawsuit.

What is the role negligence plays in filing a personal injury lawsuit in Vermont?

Generally, a personal injury action requires an injury sustained as a result of the failure of another to exercise reasonable care under the circumstances. Under Vermont's comparative negligence statute the plaintiff may not recover damages if her negligence exceeds the negligence of the defendant. However, if the plaintiff's negligence is less than that of the defendant, the plaintiff's verdict will be reduced in proportion to the amount of negligence attributed to the plaintiff.

Are there special circumstances related to auto accident injuries and truck accident injuries in Vermont?

The law governing personal injuries resulting from motor vehicle accidents (including auto accidents, truck accidents, tractor trailer accidents, motorcycle accidents and bus accidents) can be found in Vermont's safety statutes and Vermont case law. Generally, drivers are required to exercise reasonable care under the circumstances in their operation of motor vehicles. Violation of Vermont's safety statutes constitutes a rebuttable presumption of negligence.

How long do I have after an accident to file a lawsuit? (What is the statute of limitations in Vermont?)

In order to preserve potential legal rights, contacting a personal injury attorney as soon as possible from the date of an injury or death is critical. All states have statutes of limitations which prohibit bringing old claims for personal injury or medical malpractice under certain circumstances. However, even if a person was injured some time ago, she may still be able to bring a claim despite these laws.

Generally, the statutes of limitations in Vermont require that personal injury and medical malpractice claims be brought within three years from the conduct giving rise to the claim, but there are significant exceptions to these laws. Consultation with an attorney specializing in Vermont personal injury lawsuits regarding the nuances of the applicable statute of limitations is important. Generally, the time periods do not begin to run until the injured party has or should have discovered her injury and the fact that it may have been caused by defendant's negligence.

More on Statute of Limitations in Vermont

Cases for wrongful death in Vermont must be brought within two years from the discovery of the death, subject to specific exceptions.

For cases relating to a skiing accident, the statute of limitations is only one year.

This information is adapted by permission from information published by Vermont personal injury attorneys at law firm Maley and Maley of Burlington, VT. For more information on personal injury law in VT and how to file a personal injury claim, please visit their web site for more details.

Vermont Patient Safety Data Available

From The Hill

Patient safety data made available: Comparative data on patient safety and hospital quality are available online for the first time thanks to the The Commonwealth Fund’s WhyNotTheBest.org. The new measures, developed by HHS' Agency for Healthcare Research and Quality, are available from data submitted by hospitals in nine states: Arizona, Florida, New York, Illinois, New Jersey, Rhode Island, Texas, Vermont and Washington.

Report Names Vermont Least Successful in Med Mal Reform

A report by Pacific Research Institute (PRI) names Vermont, Rhode Island, Pennsylvania, Kentucky, and Iowa as the least successful in improving their malpractice laws. According to an online news item from Health Care News published by the Heartland Institute (whoever they are):

“Vermont has no limits on noneconomic or punitive damages, no limits on how much of the damages the plaintiffs’ lawyers can seize, offers drug makers or medical-device makers no protection for being in compliance with FDA or FTC regulations, and does not qualify the credentials of expert witnesses at trials...”

Learn more here.

Vermont Medical Malpractice Claims Data

According to 2008 data from The Henry Kaiser Family Foundation's statehealthfacts.org, Vermont led the nation in the average medical malpractice claim amount $839,119 (compared to $352,750 for the previous year). Certainly Vermont did not lead the total number of claims paid or the largest amounts paid. There were only 13 claims paid in Vermont in 2008.

When ranked by total dollars paid, Vermont comes in 45th out of 51 states (including D.C.).

See statehealthfacts.org for more interesting data on Vermont and any other state, such as:

• Total Hospitals
• Hospitals by Ownership
• Beds
• Beds by Ownership
• Admissions
• Admissions by Ownership
• Emergency Room Visits
• Emergency Room Visits by Ownership
• Inpatient Days
• Inpatient Days by Ownership
• Outpatient Visits
• Outpatient Visits by Ownership
• Medical Errors
• Mandatory Quality Reporting Requirement

Doctor and Methadone Clinic Settle in Auto Fatality

NEWFANE, VT - A Vermont man having been treated at a Methadone clinic in Massachusetts had high levels of methadone in his system when he had a head-on auto accident, which killed an 8-year-old girl, according to autopsy results as reported by the Barre Montpelier TimeArgus.com. Lawyers representing the girl's estate claimed the clinic and his personal physician failed to adequately monitor the man, settling the lawsuit for $1.8 million.

The news article states that girl's family sued:

"...Community Health Care Inc., which is based in Chicopee, Mass., and [the doctor] of Putney because of their care of [the man], who had a long history of heroin abuse and erratic driving, according to the suit filed in 2007 in Windham Superior Court. The case against [the doctor], who prescribed anti-anxiety medication for [the man] while he was on methadone, settled out of court in January, according to court records."

Read the full article here: Vermont methadone settlement.

Best Lawyers® Ranks Medical Malpractice Lawyers in Vermont

Who are the best medical malpractice lawyers in Vermont? Best Lawyers®, the annual peer-based listing of the best attorneys in each state, has selected 13 attorneys from the state of Vermont to include in its 2010 annual listing. See the listing here.

Burlington, VT attorneys selected for inclusion in the annual listing for Medical Malpractice Law include:  John Maley and Christopher Maley. Each is also listed in the Best Lawyers listing for Personal Injury Litigation.