Archive for the 'Personal Injury' Category

Anti-Seizure Medication: What Your Doctor Might Not Have Told You

Many people in the United States suffer from epilepsy and other disorders that can cause seizures and this affects every aspect of their lives. From not having the legal ability to drive a car to the simple fact that a seizure can often happen without warning, those who suffer from these crippling disorders depend on a variety of medications to keep their seizures under control.

Physicians who specialize in or are familiar with the nature of seizures and their causes treat their patients with the best medications available that are right for them. As is the norm, new medications arrive to the consumer market all the time and some of these new drugs may find their way into a seizure sufferer’s hands.

Again, most of these drugs work anti-seizure medicationwell and allow seizure patients to lead healthy and more normal lives. However, as with most drugs, side effects are always a risk and some of the risks associated with anti-seizure medications can be very serious.

If you’re taking an anti-seizure medication these are a few things you should know about their side effects and learn more about how to talk to your doctor about any concerns you have.

Types of Seizures

Regardless of the underlying cause seizures are classified by type. These types vary due the patient’s condition, age, and even menstrual cycle. These are some of the types of seizures that healthcare experts have classified.

  • Absence seizures. These are generally mild and consist of short periods of “spacing out.” These were previously called petit mal seizures.
  • Atonic seizures. These are brief seizures that result in a loss of muscle tension. They rarely last longer than 15 seconds.
  • Catamenial seizures. These seizures occur at varying times during a woman’s menstrual cycle and are generally hormone related.
  • Dravet Syndrome. This syndrome begins in the first year of an infant’s life and the seizures increase in frequency as the child ages.
  • Focal seizure. These seizures are among the most unpredictable as the seizure can begin in any part of the brain resulting in differing levels of seizure activity.
  • Myoclonic seizures. These seizures involve brief shaking or jerking of the muscles. The patient is generally conscious during this type of seizure.
  • Tonic Clonic seizure. Previously called a grand mal seizure, a tonic clonic seizure involves the shaking or jerking of the entire body and the patient loses consciousness. These seizures can last from one to three minutes. Anything longer than five minutes is a medical emergency.

Seizure Medications and Their Side Effects

Physicians prescribe a number of different medications for seizure related disorders and one of the more popular of these medications is Dilantin (phenytoin). Dilantin works by decreasing certain activities in the brain that can result in seizures.

However, as with any drug, dilantin comes with side effects and some of them have been severe. Dilantin’s interactions with other medications can also cause life-threatening side effects. Be very clear with your doctor about any medications you are taking if you are prescribed Dilantin.

anti seizure medicationOne of the most serious concerns about Dilantin is during pregnancy. It’s a conflicting issue because discontinuing the use of the drug while pregnant can cause seizures that can be very harmful for the mother and unborn child. On the other hand, Dilantin has been known to cause some serious birth defects ranging from cleft palate to heart defects. It’s vital that you discuss this with your doctor if you are pregnant and taking Dilantin. If taking Dilantin has affected your pregnancy or baby, you may have recourse against the pharmaceutical company.

Dilantin also decreases the effectiveness of hormone-based birth control which can result in irregular periods, spotting, bleeding, and pregnancy. Talk with your doctor about alternative methods of birth control if you take Dilantin.

People with low vitamin D levels or who have osteoporosis should also take Dilantin with caution. The drug is known to contribute to bone loss and this could become more severe if thinning of the bones is already a health concern.

Dilantin has also been associated with Stevens-Johnson Syndrome and Purple Glove Syndrome, both of which are skin disorders that can be fatal and need immediate medical attention if they happen.

Dilantin has been a lifesaver for many people who suffer from seizures but it has also caused many people lasting problems due to the side effects. Be sure to talk with your doctor about any side effects that you experience and if those side effects have impacted your life in a severe way you might also want to speak with an attorney. After all, you can’t be too careful when it comes to your health.


Authored by Thomas J. Henry, a renowned trial attorney who has been practicing personal injury law in Texas for more than 25 years. He has represented victims of catastrophic trucking and auto accidents, on-the-job accidents, medical malpractice claims, and many other claims across the United States.

Can a Miscarriage Be a Wrongful Death Claim?

A recent decision from the Alabama Supreme Court allows a woman to proceed forward with a wrongful death suit against her obstetrician after suffering a miscarriage.  While the decision has rocked a few boats, the Court only affirmed existing laws that allow a person to sue for the wrongful death of an unborn child.

Miscarriage Wrongful DeathLet’s Check the Facts

Two days after finding out she was pregnant, Kimberly Stinnett experienced abdominal cramping and fever.  After an evaluation that included ultrasound, an obstetrician determined that Stinnett, based on the findings from the evaluation and Stinnett’s prior medical history, was experiencing an ectopic pregnancy.  An ectopic pregnancy occurs when a fertilized egg attaches itself in a place other than inside the uterus, which makes it impossible for a fetus to develop.

The obstetrician performed a dilation and curettage, commonly referred to as a “D&C”, which is a surgical procedure used to determine whether a pregnancy is intrauterine (within the uterus) or ectopic. Stinnett testified that the obstetrician told her, as a result of that surgical procedure, the pregnancy wasn’t ectopic, but that she believed a miscarriage had taken place.  The obstetrician, however, testified that she still had a strong suspicion that the pregnancy was ectopic and therefore ordered a drug commonly used to treat ectopic pregnancy.  The drug is intended to cause the end of pregnancy and was administered to Stinnett.

Stinnett attended a follow up appointment, in which she saw her original doctor.  A follow-up ultrasound showed that Stinnett was having a failing intrauterine pregnancy, possibly as a result of the drug the previous obstetrician had given her.  Several weeks later, Stinnett suffered a miscarriage.

Stinnett brought suit against the obstetrician and claimed:

  • Medical negligence for performing the D&C and administering the drug,
  • That because her pregnancy was not ectopic, the D&C should not have been performed nor should the drug should have been administered, and
  • That the obstetrician’s actions violated the applicable standards of care and proximately caused the loss of her baby.

In addition to her medical malpractice claims, Stinnett claimed wrongful death of her unborn fetus under Alabama’s wrongful death of a minor statute.  The personal injury claims stemming from the medical malpractice suit were allowed to go forward, but the lower court dismissed the wrongful death portion of the suit.  Stinnett appealed.

Why Did the Alabama Supreme Court Allow the Wrongful Death Claim to Move Forward?

Among other arguments, the obstetrician’s main argument rested on the idea that the wrongful death of a minor statute didn’t apply to her due to an exemption within another Alabama statute limiting criminal liability for licensed physicians who, through mistake or unintentional error, caused the death of a previable fetus.  The argument rested on the idea that if criminal liability was exempted, so too should civil liability.

The lower court agreed, but the Alabama Supreme Court ruled otherwise, stating, “[I]t simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act”.  The high court found doing so would, essentially, defeat the purpose (to prevent homicides) of allowing wrongful-death claims based on negligence in the first place.

The court remanded the wrongful death claim back down to the lower court, which means Stinnett has a chance to argue it in front of a jury.

Will She Win?

This case can appear a bit convoluted because it involves both wrongful death, as well as medical malpractice, but they essentially coincide with each other.  Wrongful death suits are brought when a person dies due to the negligence or misconduct of another.  In order to bring a successful wrongful death cause of action, Stinnett will need to prove:

  • The death of a human being,
  • Was caused by the obstetrician’s negligence (or intent to cause harm), and
  • That Stinnett is suffering monetary injury as a result of the death of her fetus (think losing future income from a spouse).

Alabama law allows wrongful death suits on behalf of previable fetuses, so Stinnett will have no problem proving the first element; it’s the other two elements that will be harder to prove.

Medical malpractice is one circumstance a plaintiff can use to prove a wrongful death claim.  If Stinnett can prove that the obstetrician acted negligently in a way that another competent obstetrician in similar circumstances would not have acted, then she’d have a good argument for medical malpractice.

Remember when I said Stinnett filed suit for medical negligence and wrongful death?  Even though the wrongful death suit was originally dismissed, the personal injury claims proceeded forward and a jury found in favor of the obstetrician.  What does that mean?  That the doctor wasn’t liable, which implies she followed the appropriate standard of care.  If that’s the case, then Stinnett won’t have much luck proving a wrongful death claim.

The Alabama Supreme Court noted in their decision that it wasn’t clear whether the jury’s decision rested on the obstetrician’s standard of care or whether it rested on the theory that Stinnett didn’t suffer any damages.  For those reasons, Stinnett has the option to proceed forward and, if she chooses to, she’ll need to prove both negligence with respect to the standard of care and that she suffered monetary injury.

Driving With FaceTime: Apple Faces Lawsuit from Grieving Family

Talking on a hand-held cell phone while driving. Texting while driving. Both of these activities are major causes of accidents that have now been banned in most states. However, with the development of technology, a new problematic activity has emerged: engaging in FaceTime while driving. FaceTime is Apple’s video-chatting program, and it is a standard part of the latest versions of the iPhone. Not only does the program require hand interaction in the form of holding the device and interacting with the device’s interface to commence and end a FaceTime session, but it also requires visual attention because of the video aspect of the program. Since using FaceTime requires a person to both continuously look at the device and hold/physically interact with the device, using FaceTime while driving is arguably more dangerous than texting while driving and talking on a hand-held cell phone. However, using Facetime while driving is currently not a crime in any state, nor has Apple, the company behind FaceTime, taken any steps to discourage users from using it while driving. That may all change soon now that a family in Texas is suing Apple over a car accident that was caused by a driving using FaceTime.

Apple iPhone FaceTime

On Christmas Eve of 2014, Garrett Wilhelm crashed into the Modisette family’s car while engaged in a conversation using FaceTime on his iPhone 6 Plus rather than paying attention to traffic. All four members of the Modisette family suffered from serious injuries, and one for the two young daughters ended up dying from her injuries. At the scene of the accident, Mr. Wilhelm admitted to the police that he was using FaceTime when he crashed into the Modisette family’s car and the police noticed that FaceTime was still running on Mr. Wilhelm’s iPhone 6 Plus after the accident, which suggests that the use of FaceTime helped cause the accident.

Holding Apple Responsible for FaceTime’s Role

The Modisettes filed a lawsuit against Apple for the role that FaceTime played in causing the accident. They have accused Apple of being negligent in the design of FaceTime by failing to include either a warning to users alerting them to the dangers of using FaceTime while driving or a mechanism that would allow for FaceTime to become disabled when the device containing FaceTime is in a moving vehicle. What makes Apple’s failure to include either a warning or disabling mechanism even more noticeable is the fact that prior to the release of the iPhone 6 Plus, Apple was granted a patent for a electronic device mechanism that would disable certain distracting features within the electronic device, such as texting and video chatting, if the mechanism sensed that the device was traveling at or beyond a certain speed that would indicate that the device was in a vehicle.

How Can Manufacturers Be Held Responsible?

Manufacturers owe a duty to consumers to create safe products. If a product can be made safer without sacrificing any of its essential aspects, then the manufacturer is obligated to change the way that it makes the product to include the new additional safety measures. If a manufacturer keeps making the product in the same manner as before without implementing the changes to make it safer, then the manufacturer has used a defective design and is liable for any harm that may result from the product with the defective design when that product is being used in a way that is either intended by the manufacturer or reasonably foreseeable by the manufacturer.

Apple knew that iPhone owners used their iPhones while driving, including for texting and chatting purposes. In fact, that knowledge is why Apple created the mechanism for which they sought the patent, according to the background information in the company’s patent application. Since the patent application was granted in April 2014 and the iPhone 6 Plus was initially released in September 2014, Apple was in possession of a patent for a mechanism that would have disabled iPhone owners from being able to use their iPhones in a distracting manner while driving months before Mr. Wilhelm could have purchased his iPhone 6 Plus. Thus, not only was Apple aware of the current dangerous design of the iPhone in lacking a mechanism to disable certain features of the iPhone while the owner is driving, it was also aware of a way to make the iPhone with a mechanism that would disable certain features in the iPhone while the owner is driving. Despite this knowledge, Apple did not implement the safer design that would have included the mechanism when manufacturing the iPhone 6 Plus. Thus, Apple’s iPhone 6 Plus contained a design defect for which Apple is liable.

But Can Apple Really Be Liable for a Car Accident?

Since Apple is liable for the defective design of the iPhone 6 Plus, they are then liable for any harm that may result from a reasonably foreseeable use of the iPhone 6 Plus that may have been avoided if the safer design was implemented. Apple should have reasonably foreseen that Mr. Wilhelm would have been using FaceTime on his iPhone 6 Plus while driving because the company stated its awareness of drivers using cell phones while driving in the patent application. Mr. Wilhelm would likely have been unable to use FaceTime on his iPhone 6 Plus if Apple had manufactured the device with the disabling mechanism. However, since that safety mechanism was not present in Mr. Wilhelm’s iPhone 6 Plus, Mr. Wilhelm engaged in distracted driving and crashed into the Modisettes’ car. Thus, it is likely that Apple is liable for Mr. Wilhelm crashing into the Modisette’s car and the subsequent damage that resulted from the crash.

If the court does find Apple liable for the car crash involving Mr. Wilhelm and the Modisettes, then the court will likely require Apple to provide financial compensation to the Modisette family and order Apple begin implementing the safer design featuring the disabling mechanism. The compensation that the Modisettes may receive from Apple will likely include quantifiable damages such as incurred medical costs and the cost of repairing or replacing their car, as well as more speculative damages such as money for the loss of companionship due to the daughter’s death and pain and suffering. Additionally, Apple may be required to pay punitive damages, which are damages designed to punish defendants for terrible behavior, because Apple was already in possession of a patented way to make the iPhone 6 Plus safer before it was manufactured and yet chose to still manufacture the iPhone 6 Plus with the less safe design.

What Can Consumers Do to Protect Themselves?

Manufacturers should always make their products as safe as is feasible. If they fail to make products that are safe to be used as is foreseeable, then they should be held liable for causing harm to consumers. You should contact a defective products lawyer if you have been harmed by a defective product. A lawyer can assist you in talking to the maker of the defective product about compensating you for your injuries and filing a lawsuit if necessary.

Who is Responsible for the 36 Victims in Deadly Oakland Fire?

With 36 confirmed dead in an Oakland warehouse fire, many grieving families want answers as to what, and who, is responsible for the deadly fire that trapped so many during an electric dance party in a building with no smoke alarms or sprinkler systems.

The former warehouse was a dilapidated two-story structure that, from the outside, appeared to be abandoned because of the disrepair it was in.  In fact, a citation was issued to the owner sometime in November for hazardous trash and debris outside of the building, but city and state officials have also fielded numerous complaints over the years about dangerous conditions, drugs, all-night dance parties, neglected children, trash, thefts and squabbles at the warehouse.  Zoning officials were also investigating complaints of illegal construction on the property, as well as illegal residential use, but neither were confirmed by inspectors.

Witnesses have described the interior as a maze of man-made studios, workshops and residences with couches, pianos, beds, microwaves, refrigerators, hot plates, music equipment, a man-made staircase made of wooden pallets connecting the ground floor to the second story, and even RVs.  Power sources have been described as just numerous extension cords plugged into each other.

With all the speculation surrounding ignored building codes, dangerous conditions and what the building was actually being used for, it begs the question about who’s responsible.  Is it the owner of the building?  The manager?  The host of the party?  Or someone else?

These Types of Buildings Aren’t Uncommon in Bay Area

With skyrocket rent in the Bay area, these little communities aren’t uncommon.  Derek Ion Almena had signed a lease for the property and apparently subleased space to others in what’s become known as the “Ghost Ship”.  According to the Today show, Almena said he opened the warehouse to artists who couldn’t pay the rent because their dreams were “…bigger than your pocketbook.”

The warehouse owner’s, Chor N. Ng, daughter, Eva Ng, however, told the Los Angeles Times that the warehouse was leased as studio space for an art collective and not as a dwelling.  This will definitely make a difference because zoning standards are stricter for residential uses.  Almena insisted the building was leased to “city standards supposedly”, but the warehouse was permitted only as a one-story warehouse, not for entertainment or residential use.

An official report about the cause of the fire hasn’t been released yet, but there has been speculation that it started with a
refrigerator.

Everyone is Looking for Someone to Blame

What kind of claims should we expect to see here?  Wrongful death suits to start, which would likely name Ng and Almena for liability, but there’s a whole slew of people that could be put up to the plate.  Keep in mind that cioakland firevil tort cases like this only require a preponderance of the evidence, which is a much easier and lower standard to prove than the beyond a reasonable doubt standard in a criminal case.

Let’s take a closer look at potential targets that could get sued for liability.

  • The owner, Chor N. Ng. The first obvious choice for liability, even despite the fact that the owner of the building may have been blind to the fact that people were living within the building.  The owner will still have some liability, though, as landlords have a general responsibility to know what’s going on on their property.
  • The manager, Derek Ion Almena. The second obvious choice.  Did the lease allow him to sublease?  If not, this is definitely an argument Ng could use in her favor.  Landlord tenant law generally puts liability for damages on who is at fault for the fire.  Since this fire involved so many deaths, though, any action, or lack of action on behalf of the owner, that gives even a glimpse of responsibility is going to be scrutinized under a magnifying glass.
  • Promoter of the party. Who threw the electric dance party?  This may not be your first thought, but there’s likely liability here as well.  Almena’s wife and child, who lived in the building, were reportedly staying at a hotel that night, which eludes to the fact that Almena may have at least had knowledge of the party.
  • Contractors, engineers, or architects. Basically, anyone that has worked on the site throughout the years could be targets.
  • Manufacturers. Did an appliance within the building have faulty wiring that sparked or contributed to the fire?  There definitely seems to be some mitigating factors here, though, even if this is the case, especially when you consider the way witnesses described the makeshift and sloppy way power sources were hooked up.
  • The City of Oakland. However, this one seems less likely since they could assert governmental immunity and the city was already doing their part to investigate whether there was illegal use.  Even still, allegations that the warehouse has not been inspected for over 30 years could present issues for the city.

Depending on the outcome of the investigation, criminal liability could be possible for the owner and manager as well.  Arson hasn’t been ruled out yet and the local prosecutor has even said the state hasn’t ruled out the possibility of murder charges.

Nude Recordings of Minors Showering Not Lascivious Enough to Constitute Child Pornography

A Tennessee man’s sexual exploitation convictions have been overturned by the state’s highest court because his nude recordings of minors weren’t lascivious enough to be considered child pornography. Tennessee’s sexual exploitation laws are basically a reworded version of other production of child pornography laws, but unlike other states, Tennessee doesn’t consider the viewer’s intent of sexual arousal an element of the crime. Because of this distinction, a man’s recordings for his own perverse satisfaction ended up landing him a conviction for mere spying.

Thomas Whited was arrested for hiding a camera phone in the bathroom and bedroom used by his 12-year-old daughter. The phone was positioned in the bathroom to record his daughter as she prepared for a shower and after-shower bathroom activities.  The phone in the bedroom was planted just before Whited’s daughter and her 14-year-old friend entered the bedroom to change out of their bikini swimsuits into dry clothes.  The phone was eventually found by Whited’s wife, who reported her husband to the police after finding several videos of the young girls on the phone. nude recording in bathrooms

Whited was convicted of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. Whited appealed his case to the Tennessee Supreme Court, mainly on the fact that the videos didn’t include sexual activity and, because of that, couldn’t be considered sexual exploitation under the state’s statute, nor could they be considered lascivious.

If you have an image/video of a naked individual, at what point does that photo become obscene and considered child pornography?

Many Laws Require the Presence of Sexual Activity

Typically, images are considered child pornography when there is a visual depiction of sexually explicit conduct involving a minor. That’s a pretty broad definition though, so the question comes down to how sexually explicit conduct is defined.

The federal legal definition of sexually explicit conduct, in which the Tennessee court applied their own similar definition, doesn’t require images to depict sexual activity in order to be considered sexually explicit, but rather the federal code only requires a “lascivious exhibition of the genitals or pubic area of any person.”

What does lascivious exhibition even mean, then? Certainly, a word that’s meaning is, in a way, subjective. Black’s Law Dictionary defines lascivious as,

“tending to excite lust; lewd; indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations.”

Despite the fact that what tends to excite an individual is subjective to each person, there are general ideas of what pornography looks like. In fact, Justice Potter Stewart so famously described his threshold for obscenity as not definable, but rather,

“…I know it when I see it…”

Mere Nudity Isn’t Enough

Mere nudity isn’t enough to establish lascivious exhibition of private body areas. If you have a hard time wrapping your head around this, case law has previously pointed out the example of innocent photographs of naked children in the bathtub.  How do you know it when you see it here?  It would be hard to distinguish one from the other when you’re looking at merely a naked person.

Courts developed what they called the Dost factors, which take many things into consideration when determining whether there’s lascivious exhibition, but the Tennessee Supreme Court rejected those standards and instead they looked at comparative cases and found these considerations significant in the case at hand:

  • The level and nature of the nudity in the videos,
  • The emphasis on the minor victim’s private body areas,
  • The fact that the victims were engaged in everyday activities ordinarily performed nude,
  • The defendant’s audible comments and interactions with the victims recorded on the videos, and
  • the defendants’ recorded actions depicting his voyeurism in setting up the camera.

What did the court say? The nude recordings of the daughter showering were “everyday activities ordinarily performed nude” and because the videos didn’t appear to be focused solely on the children’s private body parts, they weren’t necessarily lascivious exhibition.

Did Whited luck out on a technicality? It’s not an issue of whether the court got it wrong, but rather a question of whether Tennessee lawmakers will be redrafting their statutes to have a more inclusive definition of what constitutes child pornography.  I imagine they will after this case.  Had the Tennessee statute been inclusive of language defining sexual exploitation or pornography to include an element of intent of sexual arousal/gratification, the issue of lasciviousness would have been moot at that point.