Missouri Injury Lawyer Blog

The Illinois Supreme Court is set to consider the constitutionality of damage caps passed by the legislature. Last November, Cook County Circuit Judge Diane J. Larsen overturned an Illinois law that capped damages in malpractice cases. Her decision was appealed by the hospital. Next month, briefs and friend-of-the-court briefs debating the constitutionality of tort caps are expected to be filed with the Illinois Supreme Court.

As I noted in an earlier blog entry, the underlying lawsuit was brought on behalf of Abigaile LeBron, a girl who was born with a permanent brain injury. Her mother sued Gottlieb Memorial Hospital and others alleging medical negligence. The suit also challenged a 2005 law that capped pain and suffering damages at $500,000 for doctors and $1 million for hospitals alleging it violated the Illinois Constitution.

Illinois is a key battleground in the fight over caps in tort cases. Advocates of the limits claim that they are needed to keep doctors and hospitals in business. Opponents argue that when the carelessness of a doctor or hospital leads to injuries – especially severe ones like Abigaile’s permanent brain injuries – the victims deserve to be compensated and the doctors and hospitals must be held responsible.

Because of the importance of the case, it is expected that a number of amicus briefs will be filed with the Illinois Supreme Court.

Illinois isn’t the only state with caps. Caps have either been proposed or enacted in all 50 states. In Missouri, the caps are extremely oppressive, limiting non-economic damages to a mere $350,000.

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In an Illinois Medical Malpractice case a jury in La Salle County Circuit Court decided an Illinois Plaintiff should receive nearly $24 million from a doctor and nurse practitioner in a malpractice case.

The 34-year-old Streator man filed a lawsuit in May 2003 against Ephraim W. Batambuze, M.D., John E. Podzamsky, D.O., registered nurse anesthetist Linda Blair of A.T. Associates and nurse practitioner Patricia Duffield, as well as against Batambuze's practice, Prairie Cardiovascular Consultants.

Porter said he entered St. Mary's Hospital in Streator in November 2001 for surgery involving a kidney stone in his ureter. During surgery, he underwent cardiac arrest and the flow of oxygen to his brain was interrupted.

As a result of the oxygen interruption, Porter lost most of his fine motor skills and suffers from spastic movement, severe double vision and slow, slurred speech, making him difficult to understand. However, Porter, who uses a wheelchair, can understand others. He is married and has two children. Before the surgery, Porter worked for a phone company.

The trial began Jan. 30 before Chief Judge James Lanuti. On Feb. 8, the plaintiff settled with Porter for $1 million each. The trial continued and on Thursday, jurors ruled against the remaining defendants, awarding the Illinois man $23,737,234.

A video recording titled "A Day in the Life" was shown to jurors. The video had no sound, which was meant to make jurors concentrate on the images. The video showed Porter's daily struggles. The video showed the injured plaintiff trying hard to do things and that in spite of the hard ships he faced that he still had a sense of humor.

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Trasylol the anti-bleeding drug used during heart surgery is more likely to cause patients to die, according to two new studies published last week in The New England Journal of Medicine.

The first study involved 10,000 patients who had bypasses at Duke University Medical Center from 1996 through 2005. It found that 6.4 percent of patients who were given Trasylol died within 30 days of the surgery, a rate nearly 2.5 times higher than patients who got another drug or who received no treatment for bleeding.

The second study looked at about 78,000 patients nationwide from 2003 to 2006. Researchers found the risk of death was 64 percent higher in the Trasylol group than in those taking another drug.

Made by Bayer, Trasylol received approval from the Food and Drug Administration in 1993. Last year, a Canadian study was stopped because of deaths among patients taking Trasylol. Reacting to the reports of higher deaths and the increased risk of serious kidney damage, the FDA requested that it be taken off the market last November.

The lawyers of The Lowe Law Firm are experienced in helping people injured by a dangerous prescription drug. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of dangerous medications. If you cannot make it to our office, we will come to you at the hospital or your home.

Contact the lawyers at The Lowe Law Firm today by calling 877-678-3400.

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The manufacturers of hormone replacement drugs lost their second case regarding the allegations that their drugs Premarin, Prempro, and Provera caused breast cancer. A federal jury awarded $2.75 million in actual damages to a woman who alleged her breast cancer was caused by hormone replacement drugs, Bloomberg News reports.

The suit was filed against Wyeth and a unit of Pfizer. The verdict is the first federal-court defeat for the two companies that make menopause drugs.

The plaintiff, Donna Scroggins, took a combination of hormone replacement drugs for ten years to ease her menopause symptoms such as hot flashes, night sweats and mood swings. She eventually developed breast cancer and underwent a double mastectomy.

In 2002, the Women’s Health Initiative study found that women who took a combination of estrogen and progestin hormones to relieve menopause symptoms increased their risk of invasive breast cancer by 24 percent.

Upjohn, a Pfizer unit, manufactures the progestin drug Provera. Wyeth makes the estrogen drug Premarin and Prempro, a drug that combines estrogen and progestin.

The federal jury in Little Rock, Arkansas that handed down the award is not done with Scroggins’ case. On March 3, jurors will hear evidence on whether the two companies handling of the drugs merits a punitive damages award.

The lawyers of The Lowe Law Firm are experienced in helping people injured by a dangerous prescription drug. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of dangerous medications. If you cannot make it to our office, we will come to you at the hospital or your home.

Contact the lawyers at The Lowe Law Firm today by calling 877-678-3400.

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ATV's including the Yamaha Rhino have been alleged to have killed more than five hundred people in 2006. Twenty percent of the people that perished in these unfortunate accidents were children. Amid the ATV deaths, 146,600 people visited hospital emergency rooms due to injuries from the well-known Yamaha Rhino ATV within the same year. The information of the alleged incidents was found from information gathered surrounding ATV crashes. The Consumer Products Safety Commission (CPSC) gathered the information regarding the crashes of the alleged defective ATV’s.

Accidents involving rollovers with ATV’s are common with vehicles of this type. Many people use the vehicles to ride off the road in a more naturalistic setting. ATV’s can reach speeds of up to fifty-give miles per hour and some way as much as a quarter ton. Three-quarters of ATV accidents wind up yielding trauma or injuries to the head and spinal chord of its victims. Many people that sustain such injuries sustain life threatening and or lifelong impairments. Paralysis is a common side effect of spinal chord injuries in these types of accidents.

The Yamaha Rhino ATV is alleged to be one of the most hazardous vehicles of its type on the market at the present time. People that view the Yamaha Rhino in a negative light allege that the vehicle has narrow tires and is extremely top heavy making it quite hazardous to drive. These type of defects make it probable that the Yamaha Rhino will tip over while making turns even at lower speeds and while on even ground. Also, the legs of passengers are exposed in a manner that leaves them completely unprotected if a rollover occurs. People involved in rollover incidents on Yamaha Rhinos have allegedly sustained leg, ankle, and feet injuries. Generally, the bones are either completely broken or pulverized in the alleged crashes. Some people come away completely disabled or have had to have arms of legs amputated as a direct result. Usually if children are involved in a rollover crash involving the Yamaha Rhino, it is alleged that it is fatal more times than not.

The year 2007 brought about the implementation of offering modifications to safeguard the Yamaha Rhinos by its parent company. It remains to be seen whether the implementation of doors and more handholds will make the vehicles any safer. The company has allegedly failed to recall or give refunds to the owners of Yamaha Rhinos.

Pennsylvania has allegedly had the largest amount of ATV deaths in the nation since 1982. This information is part of the CPSC’s report. The states next in line with large amounts of ATV deaths are: California, West Virginia, Kentucky, and Texas. All states across America can lay claim to at least on death with ATV’s at fault. The CPSC has estimated that in 2005 there were 666 deaths due to ATV’s and they believe it is possible that number could be as high as 870 this year. Consumer advocates are working hard to implement policies that would safeguard children by prohibiting the sale of ATV’s for the use of children.

The Lowe Law Firm is familiar with ATV and in particular the Yamaha Rhino and handling product liability lawsuits against the companies that make them. If you need an experienced lawyer to handle your case anywhere in the United States, please call Jeffrey Lowe, 877-678-3400.

By Delsia Hartford and Jeffrey Lowe

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The Yamaha Rhino is a prime example of the need for more regulation and safety measures when it comes to ATVs. Lives could have been saved if more controls were in place, particularly with the design of the Rhino. Complaints are pouring in, alleging that even at low speed and during turns on flat surfaces, rollovers occur due to a defect in the design—a high center of gravity makes the vehicle top-heavy.

In November, 2006 a 10-year-old girl was killed when a Yamaha Rhino tipped over on top of her. Police said three children were on the Rhino when it overturned as the driver, the girl’s 12-year-old cousin, tried to make a left turn while going down a hill. He tried to lift the vehicle off the girl, but it was too heavy.

Another near-tragic accident happened in Chino Hills, CA., involving four youths. Without permission from a parent, they took a spin in a Rhino and the vehicle swerved before one juvenile in the back seat jumped off. The driver then overcompensated, and the ATV pitched back the other way before it rolled over. Three of the youths were seriously injured.
And in Edmonton, Alberta, a 13-year-old boy, Wyatt Lyal Bauer, was killed while driving a Rhino, prompting a spinal cord surgeon to ask for a ban on people under the age of 16 driving ATVs and for the licensing of all ATV drivers. He had previously operated on a number of people whose backs were broken in ATV accidents. "We've seen a huge increase in the amount of ATV-related trauma -- not just deaths, but people getting buggered up,” said Dr. Lavoie of University Hospital.

Apparently Wyatt went around a corner on a hill, lost control of the Rhino and it rolled over on top of him. Friends found him about 20 to 30 minutes later; they lifted off the vehicle and tried to revive him. A helicopter airlifted him from the scene to a local hospital, where he was pronounced dead.
Dr. Lavoie wasn't surprised to hear of Wyatt’s death because he knows first-hand the dangers of mixing ATVs and kids. His own two teen aged boys were involved in two separate ATV rollovers. Neither boy was badly hurt, but afterwards they didn't want anything to do with driving an ATV again.

"We've had our scares with it," Lavoie says. "My kids don't want to ride that freakin' thing now. They're not interested."

ATVs are now so large and powerful that it would take a big, strong child to handle a machine such as a 450- or 660-cc Yamaha Rhino. "When it gets over-balanced, unless you're a big strong guy, you can't pull that thing back up," Lavoie says.

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This week, the U.S. Supreme Court ruled that consumers cannot sue the makers of federally approved medical devices for design defects in state court.

The decision was a blow to the family of Charles Riegel. While undergoing a medical procedure to unclog an artery, a catheter burst and seriously injured Riegel. He died in 2004.

Riegel’s family sued the catheter’s manufacturer, Medtronic, Inc. The family alleged the catheter was defectively designed and had an inadequate warning label. Medtronic argued that because the U.S. Food and Drug Administration approved the catheter before it was introduced to the market, federal law preempted state court lawsuits.

In Riegel v. Medtronic, an 8-1 decision, the Supreme Court agreed. In an opinion written by Justice Antonin Scalia, the Court concluded that state lawsuits that could impose requirements that differed from federal regulations were prohibited.

Justice Ruth Bader Ginsburg dissented. She argued that when enacting federal laws governing medical devices, Congress never intended “a radical curtailment of state common-law lawsuits seeking compensation for injuries caused by defectively designed or labeled medical devices.”

Big business is applauding this ruling. According to the Associated Press, the health care technology industry is a $75 billion-a-year giant. This decision will further insulate big business from liability for their negligence. But for consumers – and for families like the Riegels – this ruling effectively prevents them from using one of the few tools left following an injury caused by a carelessly designed product.

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The Yamaha Rhino is the subject of many lawsuits and claims because it is poorly designed. One has to wonder how a vehicle—any vehicle—would be approved for sale without doors, and other alleged design flaws such as being top-heavy and having tires that are too narrow. Regardless, that seems to be the case with the Yamaha Rhino ATV, a recreational vehicle that is racking up injuries and even death.

And based on performance, it might even be mis-branded. ATV stands for All-Terrain-Vehicle. However, looking at the unit’s troubled history, it appears that the ATV fails to live up to its name.

Introduced to the market in 2003, the Yamaha Rhino ATV appeared to be doomed from the start. Critics of the unit claim that it is top-heavy with narrow tires, which makes the ATV prone for rollovers.

And when that happens, there is little in the original design to keep limbs safely contained within the unit, as there are no doors. If seat belts are not used, there is a far greater chance that the occupant will be ejected fully, or partially from the unit—deepening the injuries, or even causing them to be fatal.

There are many heartbreaking stories connected to the Yamaha Rhino ATV, and given that so many ATV riders are children—well, you can guess what is coming next.

Thanksgiving was anything by thankful for the Vargas family in California, after 12-year-old Ashlyn Vargas was killed after her Yamaha Rhino ATV flipped on a turn. Ashlyn, who believed in seat belts but had forgotten to buckle up, was thrown from the ATV. However, critics say that the unit would not have tipped over in the first place had it not proven top-heavy, or designed with a narrow frame that served to exacerbate the problem.

Another tragedy happened in June of last year, when a nine-year-old boy from East Texas died after being thrown from a slow-moving Yamaha Rhino ATV. J.T. Crow, who was a passenger in a Rhino ATV driven by his 12-year-old sister, died from severe trauma to the head after the Rhino ATV rolled on top of him. The child’s mother said that the ATV was traveling at a slow rate of speed just a short distance from the house when the accident happened.

The Crow family is filing a wrongful death suit against the manufacturer, over the loss of their son.

Even though nether child was wearing a helmet in the foregoing case, others wearing full helmets and properly strapped in have suffered neck injuries, and have had limbs crushed and in some cases amputated after the lack of doors and window mesh failed to contain limbs and heads when the rollover-prone ATVs, as they have been described, fail to stay upright.

In September of 2006, the manufacturer is reported to have sent a letter to all Yamaha Rhino ATV owners warning that the vehicle was prone to tip when negotiating sharp turns. While many Yamaha Rhino ATV owners might fail to concur with this observation in view of experiences where the vehicle has been prone to tip even on flat surfaces as low speeds, Yamaha is reported to have made the case for seat belt and helmet use, and to keep limbs inside the vehicle at all times as, it is assumed, compensation for the lack of doors.

However, the physics and dynamics of a sharp change in trajectory, which given a rollover can happen in the blink of an eye, can have a dramatic affect on limbs and the neck, which can be jerked in various directions without the capacity for the driver to know what is happening.

Finally, in 2007 the manufacturer offered to retrofit all new and used Rhino ATVs with doors and additional hand holds. However, those modifications do not address the alleged design flaw, which sees the unit top-heavy and tip-prone.

Many critics are openly calling for a formal recall, and wonder aloud why it hasn’t happened. So far the manufacturer, according to best information, has yet to extend a recall, or extend an invitation for a refund.

In the meantime, spring will soon be here. Once the remnants of winter clears away in the snow States, often the first priority is to get outside and get into the ATV.

We can only hope that there will be no further injuries or deaths, before definitive action is taken.

Written by Gordon Gibb with contributions by Jeffrey Lowe of the Lowe Law Firm

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Yamaha Rhino's are the subjects of lawsuits and claims throughout the country because of their propensity to roll over due to their narrow wheel base and high center of gravity. The problem is made much more serious because Rhino's which are all terrain vehicles made by Yamaha Corporation lack doors so when they rollover and the driver or passenger's arms or legs get outside the Rhino, severe injuries and amputations are the result.

If a picture is worth a thousand words, then the aftermath of a Yamaha Rhino rollover speaks volumes, given the number of people who have been killed or injured while riding in the ATV—many of them children.

A photograph of Ashlyn Vargas, a bright and effervescent 12-year-old who was killed when her Yamaha Rhino ATV flipped on top of her and crushed the teen. It was the day after Thanksgiving.

Then there is Matt, a young man who appears healthy and intact in every respect until he pops of his prosthetic leg, displaying the stump where is right knee should have been. He lost his lower right leg after the Yamaha Rhino ATV he was in, rolled.

Introduced in 2003, the Yamaha Rhino ATV proved immensely popular: imagine an ATV with seating for two, seat belts, a roll cage and protection from the sun. A suggestion for hours of fun.

But here’s what it didn’t have: Doors. A low center of gravity. A wide frame, and wide tires for stability. Suddenly the Rhino was earning a less-then stellar reputation amongst enthusiasts. One blogger posted this comment in September of 2006:

“They look pretty fun and bonus, two seats. A seat for the daughter and seat belts.
The only bad thing about them is safety. If you flip/roll one of them, say goodbye to one or both of your legs. They should put small doors on the sides to keep your legs on the inside in case of a rollover. Other than that…”

There you go. Back to Matt, who looks none too happy displaying his stump in the on-line photo.

Dwight could not be happy, either. While you can’t see his face in the photo, one look at his mangled left leg tells you that he suffered a great deal after only a few hours in his brand-new 2004 Yamaha Rhino side-by-side ATV. It appears as if the lower half of his left leg, at mid-shin, was shorn off but surgically re-attached. Dwight is said to have endured a lengthy hospital stay.

With room for two, and a shallow box in back, the Rhino ATV was marketed as part utility vehicle, part recreational vehicle. It looks rugged, with knobby tires and green in color, like a small Jeep. The term ‘4 x 4’ is stenciled on the rear panel, by the taillight.

But there are no doors—nothing to prevent limbs from taking the brunt of a rollover. Even if the operator were wearing a helmet and the supplied seat belt, which is recommended, there is little protection for an arm, or a limb to flail into harm’s way.

After years of accident reports and several deaths, Yamaha finally came to the table in October of 2007 with an offer to retrofit doors and a passenger grab handle to any Yamaha Rhino ATV, regardless of age and condition.

It is also understood that the 2008 models will ship with doors and grab handle factory-installed. However, those improvements do not answer critics who maintain the Rhino carries a center of gravity that is too high for safe off-roading, and a frame that is too narrow only exacerbates that problem.

Narrow, and top-heavy. A recipe for disaster, even on relatively flat surfaces, and at slow speeds.

“The slow speed my daughter was going when this happened—and I saw the tire tracks, it tipped really easily,” Ashlyn Vargas’ grieving father Primo, told KSBY 6 Action News.

Lawsuits filed against the manufacturer concerning the Yamaha Rhino ATV allege the unit is dangerously unstable.

Primo Vargas, featured in a media report, gets the last word:

“Don’t make the mistake I did. Find out what’s going on before you put your kid in any kind of vehicle like this. You could cost them their life and I wouldn’t wish this pain on anybody.”

This story was written in part by
By Gordon Gibb along with Jeffrey Lowe of the Lowe Law Firm in St. Louis Missouri

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Over the course of five days, two fentanyl patches have been recalled because of defects that could lead to respiratory depression and fatal overdoses.

The first recall was announced on Feb. 12 and covers Duragesic pain patches. Made Ortho-McNeil-Jannssen Pharmaceuticals, a unit of Johnson & Johnson, Duragesic is a powerful opioid drug used to treat moderate to severe chronic pain. The recall impacts the 25 mcg/hr fentanyl patches that have expiration dates on or before December 2009. The recall was prompted by concerns that the patch may have a cut along one side of the drug reservoir which could expose patients or caregivers directly to the dangerous gel. The same recall also covers generic patches sold by Novartis AG's Sandoz unit.

The second fentanyl patch recall was announced on Feb. 17. It applies to 14 lots of fentanyl patches sold in the United States by Actavis South Atlantic, formerly known as Abrika Pharmaceuticals. The pain patches may have a fold-over defect that could cause the patch to leak and expose patients and caregivers directly to the dangerous gel.

This past summer, juries in Florida and Texas concluded that leaking fentanyl patches made by Johnson & Johnson led to the deaths of at least two people.

The lawyers of The Lowe Law Firm are experienced in helping people injured by a dangerous prescription drug. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of dangerous medications. If you cannot make it to our office, we will come to you at the hospital or your home.

Contact the lawyers at The Lowe Law Firm today by calling 877-678-3400.

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A lawsuit filed against a doctor who, despite his patient’s symptoms, failed to order a medical test that would allegedly have detected gastric cancer when it was still treatable has been settled for a confidential amount.

Attorneys Jeffrey J. Lowe of The Lowe Law Firm represented the woman's family.

On Jan. 8, 2002, Panagiota Yiatras, 65, was examined by Dr. Miguel Cannon, her primary-care physician. She told Cannon that she had been tired for about a month and had lost three pounds since the previous fall. Cannon referred her to a gastroenterologist at Gateway Gastroenterology Inc. in St. Louis County, for a colonoscopy.

Nine days later, Yiatras with the gastroenterologist and complained that she had been bloated for the past month and explained that she had now lost five pounds. The colonoscopy was performed on Jan. 18, 2002, at St. John’s Mercy Medical Center. The hospital’s records indicate that Yiatras’ health complaints were weight loss, nausea and abdominal pain. The admitting history indicated that Yiatras complained of weight loss, stomach upset, heartburn and pain.

During the colonoscopy, a noncancerous polyp was discovered. In the report of the colonoscopy, the gastroenterologist noted that the patient’s chief complaint was abdominal bloating and that she believed that she had lost five pounds. He diagnosed gastroesophageal disease and recommended treatment with a proton-pump inhibitor.

On Jan. 29, 2002, Yiatras met with her primary-care physician to discuss the polyp, and he recommended that she undergo another colonoscopy in three years. In July 2003, though, it was discovered that Yiatras had metastatic gastric cancer that had progressed to stage IV, the final stage. She died in March 2005.

Yiatras’ husband and adult children filed a suit alleging wrongful death and medical malpractice against Gateway Gastroenterology Inc. in St. Louis County Circuit Court on Aug. 26, 2005. The family alleged that the gastroenterologist negligently failed to recommend Yiatras have an upper endoscopy, which would likely have revealed the cancer.

According to plaintiffs’ expert Dr. Meyer Solny, a board-certified gastroenterologist, Yiatras had dyspepsia, defined as chronic or recurrent pain or discomfort in the upper abdomen. Whenever a patient older 45 reports dyspepsia and weight loss, according to the standards of the American Gastroenterological Association, an endoscopy should be performed. The American Society for Gastrointestinal Endoscopy sets forth similar recommendations for patients older than 45 who experience dyspepsia and weight loss.

An oncologist expert for the plaintiffs, Dr. Robert Sklaroff, opined that, judging from Yiatras’ symptoms, in January 2002 the gastric cancer would have been at stage I or IA, which carries a survival rate in excess of 50% at five years. It was his opinion that if the cancer had been discovered in January 2002 Yiatras would likely have survived.

The defendant denied the allegations. They asserted that at the time the colonoscopy was performed Yiatras did not have dyspepsia and a 5-pound weight loss was not significant enough to warrant an upper endoscopy. It was the opinion of the defendants’ oncology expert that she had either stage II or stage III gastric cancer. The survival rate for stage II or stage III cancer is less than 50 percent, and the five-year survival rate for stage III cancer is 8 percent.

The case was referred to mediation. The parties entered into a confidential settlement on Aug. 10, 2007. The defendant did not admit liability.

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Colchicine is a drug used to treat gout which frequently results in inflammation of the joints in the fingers and toes. Last week, the U.S. Food and Drug Administration announced it would go after companies marketing unapproved uses for the injectable gout drug, Colchicine.

Colchicine is a highly toxic drug that can easily be administered in excessive, toxic doses. The FDA indicated that it has received 50 reports of adverse events associated with the use of the drug, including 23 deaths. Potentially fatal effects include low blood cell counts, cardiac events, and organ failure.

Injectable colchicine is sometimes used to treat back pain. Three of the reported deaths occurred in March and April of 2007 and were associated with the use of compounded colchicine that, due to an error in preparation, was eight times more potent than the amount stated on the label. The FDA has not approved colchicine for the treatment of back pain.

The enforcement action means that individuals and companies must stop making the product within 30 days and stop shipping the product within 180 days or face regulatory action which could include seizure, injunction or other legal action deemed appropriate by the agency.

The FDA’s action does not affect tablet form colchicine which is frequently used to prevent gout attacks.

The lawyers of The Lowe Law Firm are experienced in helping people injured by a dangerous prescription drug. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of dangerous medications. If you cannot make it to our office, we will come to you at the hospital or your home.

Contact the lawyers at The Lowe Law Firm today by calling 877-678-3400.

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