Archive for the ‘Medical Device Product Liability’ Category


Nursing Home Fall Injury Lawyer

Written By: Kenneth LaBore | Published On: 25th January 2017 | Category: Bed Rail Strangulation and Asphyxiation, Fall Injuries, Grab Bars, Guards, Hoyer Lift, Inadequate Staffing/Training, Medical Device Product Liability, Nursing Home Abuse and Neglect, Patient Lift, Wrongful Death | RSS Feed
Head Injury, Arm Fracture, Hip Fracture, Femur Fracture, Subdural Hematoma, Hip Fracture, and Reasons to Call Nursing Home Fall Injury Lawyer Kenneth LaBore

Head Injury, Arm Fracture, Hip Fracture, Femur Fracture, Subdural Hematoma, Hip Fracture, and Reasons to Call Nursing Home Fall Injury Lawyer Kenneth LaBore

Minnesota Nursing Home Fall Injury Lawyer

A personal injury attorney who is the area of practice as a nursing home fall injury lawyer is handling a case that is a combination of many types of cases in Minnesota. There is a breach of a duty, which is a negligence claim, but since most cases involve a care or service obligation of a professional nature an expert affidavit is needed to support the elements of the case unless admitted by the defendant facility, such as duty, breach, causation (breach of duty caused alleged injury) and damages as prescribed by Minnesota Jury Instructions.

Many of the cases I see are falls or falls in combination of some other form of related neglect such as medication error, dehydration etc.  I assembled a summary of information for nursing home fall injuries.

Legal Obstacles for Nursing Home Fall Injury Lawyer

The minimum standards of care for nursing homes is set for in state and federal regulations and there are several which apply to the issue of falls and fall prevention in nursing homes. In general a resident entering a nursing home or skilled nursing facility needs to have a comprehensive assessment performed by qualitied professionals such as a doctor or nurse practitioner, physical therapist, occupational or speech therapist, dietary, and others depending on the care needs of the resident at that time. The facility is obligated to perform subsequent assessments when there is a change in the condition of the nursing home resident with the intent to get intervention to assist or get out side care if needed.

Here is More Information about Nursing Home Fall Injury

The American Academy of Orthopedic Surgeons publishes a fall prevention brochure for seniors.

The Centers for Disease Control and Prevention and the National Center for Injury Prevention and Control offer various sheets and education materials on fall prevention strategies and statistics.

The Centers for Disease Control and Prevention and the National Center for Injury Prevention and Control produces: Falls – Older Adults.

The Centers for Disease Control and Prevention and the National Center for Injury Prevention and Control also produces: What Outcomes are Linked to Falls? and Hip Fractures Among Older Adults.

The Minnesota Department of Health and the Center for Medicare and Medicaid Services CMS has a power point on Who is at Risk? and How Can Older Adults Prevent Falls?

Nursing Home Fall Injury Lawyer Kenneth LaBore

Kenneth LaBore is an attorney who has handled thousands of injury cases and hundreds of elder abuse neglect and wrongful death claims for clients throughout the state of Minnesota.   Many of the cases include falls, medication errors, failure to respond to a change in condition, assaults and other forms of abuse and neglect.  There is a common theme of short staffing leading to a environment where vulnerable adults usually senior citizens some with dementia or Alzheimer’s are put at risk.

For a free consultation with Nursing Home Injury Lawyer Kenneth LaBore call him directly at 612-743-9048 or toll free at 1-888-452-6589.  Mr. LaBore can also be reached by email at KLaBore@MNnursinghomeneglect.com.   There is no fee unless there is a verdict or settlement with wrongdoer.

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Wheelchair Injuries in Minnesota Nursing Homes

Written By: Kenneth LaBore | Published On: 13th April 2013 | Category: Inadequate Staffing/Training, Medical Device Product Liability, Nursing Home Abuse and Neglect | RSS Feed
Falls From Wheelchairs From Ramp and Other Wheelchair Injuries

Falls From Wheelchairs From Ramp and Other Wheelchair Injuries

Wheelchair Injuries are a Problem in Nursing Homes

Injuries from wheelchairs, and other medical equipment occur far to frequently in nursing homes, assisted living or other elder care facilities or home health care setting.  Most wheelchair injuries involve a easily preventable mistake such as failing to lock the wheels before transfers, accidents with power wheelchair joy-sticks being bumped by mistake, as well as pressure ulcers and wound from prolonged sitting or issues with the seat surface, such as a failure to provide or properly install a “doughnut” cushion.

Wheelchair Injuries – Federal Regulations Require Nursing Homes to Take Reasonable Measures to Prevent Accidents

A nursing home must ensure that the resident receives adequate supervision and assistive devices to prevent accidents. 42 CFR §483.25 (h)

(h) Accidents. The facility must ensure that—

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

 

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Wheelchair Injury is Preventable

Proper training of staff and taking time to ensure transfers are done safety along with monitoring of residents can prevent most wheelchair injuries, some of which are often result in fracture or other serious injury.

Wheelchair Injuries Prevention Safety Tips from Mobility-Advisor.com

Wheelchair safety is becoming an increasingly important topic as more wheelchair users become independent and lead on-the-go lifestyles.  Proper use, handling and maintenance of your wheelchair are essential to staying safe and avoiding injury.

It is important to always maintain your center-of-gravity. Use a positioning belt if there is one available with your mobility chair.

Daily activities will require you to transfer in and out of your wheelchair, reach for items, and bend forward.  For wheelchair safety, practice completing these actions in someone’s presence prior to attempting them on your own.

When you reach, lean, or bend forward, always use the wheel locks or brakes and maintain a firm, balanced seat position. Never reach between your knees or move forward in your seat to pick up an object.

Prior to attempting to ride on ramps, inclines, or declines, determine your capabilities by first practicing with an attendant.  Never attempt to go up a steep slope alone. Before traversing a pathway, road or sidewalk, look for uneven surfaces, spills, holes or obstacles before proceeding.

Don’t attempt to go up a curb or tip your wheelchair without the assistance of an attendant. And it is always safer to find your way around a curb rather than go up it.  Look for a nearby ramp, curb cut, or elevator.

If you have a power wheelchair, program the speed so that it does not go any faster than you can handle, particularly when going in reverse.

Keep the power of your wheelchair off prior to transferring or using a ramp or lift because it can be dangerous if you bump into your joystick when the power is on.

Another great resource on Wheelchair Injuries is Ride Safe

Ride Safe – when traveling in a motor vehicle, it is generally safest for wheelchair users to transfer to a vehicle seat and use the vehicle seatbelt system or a child safety seat that complies with federal safety standards. The wheelchair should then be stored and secured in the vehicle.  If transferring is not feasible, it is very important to secure the wheelchair to the vehicle facing forward and to use crash-tested seatbelts for the wheelchair-seated rider.

This website presents information on selecting wheelchairs and tiedown equipment, securing wheelchairs in vans and buses, and properly restraining the rider. Follow the links at the left or click here to see step-by-step procedures.

Wheelchair Transportation Safety from Ride Safe – Wheelchair Injuries

Step 1: Start with the right equipment

Step 2: Secure the wheelchair

Step 3: Restrain the rider

If you or someone you love is currently struggling with concerns related to nursing home abuse or neglect, please call for a free no obligation consultation to see if we can assist in holding the facility accountable. An experienced nursing home neglect attorney will provide you with the answers, the advice and the representation you are looking for during this tough time. Contact Attorney Kenneth LaBore at 612-743-9048 or Toll Free at 1-888-452-6589.  Email:KLaBore@MNnursinghomeneglect.com.

Disclaimer

Nursing Home Abuse and Neglect Lawyer Kenneth LaBore Offers Free Consultations and Serves Clients Throughout the State of Minnesota Call Toll Free at 1-888-452-6589

Nursing Home Abuse and Neglect Lawyer Kenneth LaBore Offers Free Consultations and Serves Clients Throughout the State of Minnesota Call Toll Free at 1-888-452-6589

 

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How to Identify Elder Abuse?

Written By: Kenneth LaBore | Published On: 30th November 2012 | Category: Caregivers Resources, Fall Injuries, Inadequate Staffing/Training, Infectious Diseases (MRSA, C-Diff), Medical Device Product Liability, Medication Drug Error, Nursing Home Abuse and Neglect, Nursing Home Care Issues, Patient Rights | RSS Feed
Elder Abuse and Neglect Blogs, How to Identify Abuse and Neglect

Elder Abuse and Neglect Blogs, How to Identify Abuse and Neglect

How to Identify Elder Abuse?

Published On: 30th November 2012 HOW TO IDENTIFY ELDER ABUSE AND NEGLECT

Introduction – Identify Elder Abuse There is an increasing trend is towards providing care in a home like environment whenever possible. There is a wide spectrum of housing for elderly and disabled persons with an increasing number of campus models where people can remain as independent as possible and as their medical needs increase they can have increasing medical supervision and attention without leaving the community. Identify elder abuse and neglect which is often the result of misplacement of an individual who has higher care or supervision needs than the provider or facility is able to offer.

Despite the trend for people who need long term care to get that care in their communities, there will always be a need for nursing homes for those who need or want to be cared for in a facility setting that is capable of providing professional services 24 hours a day. In fact, the demand for nursing home services will likely continue to increase with the aging of the baby-boomer generation. The population of persons over the age of 85 has increased significantly, and population projections by the US Census Bureau anticipate the over age 65 population to increase by 40% between 2010 and 2030. Projections indicate that the percentage of people in need of nursing home care will increase by up to 25% in the coming decades.

According to the best available estimates, between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by someone on whom they depended for care or protection. Estimates of the frequency of elder abuse range from 2% to 10% based on various sampling, survey methods, and case definitions. It is estimated that for every one case of elder abuse, neglect, exploitation, or self-neglect reported to authorities, about five more go unreported. Nursing homes are at the higher needs end of the spectrum and are often the focus of elder neglect due to the number of residents and the increased complexity of the their care needs.

Identify Elder Abuse – Report Suspected Abuse and Neglect

Click Here For Link To Report Abuse To Adult Protection

Click Here For Link To Report Abuse To Adult Protection

Many of the cases of nursing home neglect would be preventable with adequate numbers of well trained staff. It is important to hold nursing homes that fail to properly administrate the facility to maximize the quality of care for the residents, accountable. The goal is to create an opportunity for the facility to analyze the cause of incidents and make affirmative steps towards improvement while ensuring a financial basis for compliance.

If you have any questions about elder abuse or neglect contact Attorney Kenneth LaBore, 5001 Chowen Avenue South Minneapolis, MN 55410 KLaBore@MNNursinghomeneglect.com 612-743-9048 or toll free at 1-888-452-6589.

Disclaimer

Nursing Home Abuse and Neglect Lawyer Kenneth LaBore Offers Free Consultations and Serves Clients Throughout the State of Minnesota Call Toll Free at 1-888-452-6589

Nursing Home Abuse and Neglect Lawyer Kenneth LaBore Offers Free Consultations and Serves Clients Throughout the State of Minnesota Call Toll Free at 1-888-452-6589

 

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Products Liability Claim against Manufacturer of Medical Devices

Written By: Kenneth LaBore | Published On: 24th January 2010 | Category: Medical Device Product Liability | RSS Feed
Products Liability Claim against Manufacturer of Medical Devices

Products Liability Claim against Manufacturer of Medical Devices

Products Liability Claim against Manufacturer of Medical Devices in Nursing Homes

Products Liability Claim against Manufacturer of Medical Devices – PRODUCT LIABILITY CLAIMS – UNSAFE, DEFECTIVE AND UNREASONABLY DANGEROUS PRODUCTS

I. Introduction To Product Liability Law:
The law of product liability is the area of law which deals with the liability of the manufacturer, wholesaler or retailer of a product for injuries resulting from dangerous and defective products. Products subject to the law run the spectrum from food, drugs, appliances, automobiles, medical devices, medical implants, blood, tobacco, or even commercial jets. At common law (law derived from judicial holdings carried over to the United States from England) the sale of a product was viewed as a commercial transaction upon which only the parties to the commercial contract could sue. The law has evolved to the point where today virtually anyone injured by a “defective” product (defined as a product which is unreasonably dangerous for its intended use; see below) can bring an action for damages against any party in the distributive chain of the product, whether it be the manufacturer, the wholesaler, the retailer or even the maker of a component part.

II. Theories Upon Which Suit Can Be Brought:
There are a number of theories or counts upon which an injured party can bring an action in product liability law. The plaintiff may include a count for each theory, or may choose to sue on only one. The theories are:

Negligence
Breach of Implied and Express Warranties
Strict Liability

These theories overlap to a great extent and are the result of historic evolution of the law, with strict liability being the newest, having originated with a California court decision called Greenman v. Yuba Power Products, Inc. , 59 Cal.2d 57, 27 Cal. Rptr. 697, 377 P.2d 897(1963). Until the Greenman decision, a plaintiff was required to either proceed under a negligence theory, in which he was required to prove negligence, or proceed under a warranty theory, in which case he was required to be in “privity” of contract with the defendant, meaning that a contractual relationship had to be established between the injured party and the defendant sought to be sued. The contractual origin of breach of warranty claims is best illustrated by the fact that to this day the implied and express warranties, under which some product liability claims are brought, are contained in a compilation of commercial statutes called the Uniform Commercial Code, to which most jurisdictions adhere. Under strict liability theory a plaintiff is not required to prove either negligence or that he was in privity of contract with the manufacturer or other seller. Some commentators argue that there is little difference between proving that a product was unreasonably dangerous for its intended use and proving that a manufacturer or other seller was negligent for releasing into the stream of commerce a product that was unreasonably dangerous for its intended use. Others argue that in cases where the state of technology was such that the danger was not known to the manufacturer at the time of sale and could not be discovered, the ability to proceed without showing negligence is important in assisting a jury to arrive at a verdict.

III. The Meaning of the Terms “defect” and “defective”
One of the most common terms to arise in product liability litigation is “ defect”. In the eyes of the law this term has a broader meaning than one might expect. The law considers any product which is unreasonably dangerous for its intended use to be defective. In considering this definition, it is important to remember that the term “unreasonably” dangerous is crucial to the meaning of the term “defective”. Thus, a product may be inherently dangerous but have such utility that the danger is one which would not be considered “unreasonable”. For instance, gasoline is an inherently dangerous product, but its utility far outweighs any danger posed by it. Therefore, the law does not consider gasoline unreasonably dangerous for its intended use. Should the day arrive where an alternative, less dangerous, and no more costly fuel is developed, the law would permit a product liability action to prove that gasoline is an unreasonably dangerous product, and is, therefore, defective. Similarly, a knife is unquestionably a dangerous product, but the law wouldn’t consider it “unreasonably” dangerous. On the other hand, a knife with a handle so fragile it will snap under ordinary use would be an unreasonably dangerous product, and, therefore, defective. Another factor which may be evaluated in determining whether a product is defective is the adequacy of warnings. Obviously, an inadequate warning will increase the danger posed by a product, and may, itself, be negligence on the part of the manufacturer. In addition, an adequate warning may be all that is required to result in a factual determination that a danger posed by the product did not constitute an unreasonable risk of harm. The converse may also be true. An otherwise useful product carrying inherent risks may be determined to be unreasonably dangerous for its intended use solely due to the absence of an adequate warning alerting the user to the danger.

IV. Manufacturing Defects vs. Design Defects
Another distinction which arises in product liability law is the distinction between manufacturing defects and design defects. A manufacturing defect arises when the finished product does not conform to the manufacturer’s plans or specifications. An example of this would be a jagged edge on an automobile ashtray, where the manufacturer’s plans called for a smooth edge, but a malfunction occurred during the machining process. Another example of manufacturing defects are product failures caused by substandard materials, such as exploding soft drink bottles. Design defects, on the other hand, occur when a product is manufactured exactly as the manufacturer intended, but the product itself is deemed to be unreasonably dangerous for its intended use. An automobile that cannot withstand crush injuries during a roll over accident or which will explode upon impact would be considered to have a design defect. Much of today’s product liability litigation consists of design defect cases, and this field is broad enough to cover such claims as asbestos litigation, vaccine and other drug litigation, flammable fabric litigation, dangerous power tool or appliance litigation, defective medical implant litigation (including breast implants), and any other area in which a product’s design makes it unreasonably dangerous for its intended use, thereby causing injury. The process of evaluating whether an inherent danger makes a product “unreasonably” dangerous for its intended use always involves balancing the utility of the product and its design against the risk or danger posed by the product.

V. Elements of Product Liability Claims
Although there are some differences in the elements of product liability claims founded upon negligence versus breach of implied warranty versus strict liability, there are also many common elements.

In a negligence claim a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain or group had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff.

B. Breach of Warranty and Strict Liability:

These theories share certain common elements which a plaintiff must prove. They also differ in several key respects from product liability actions based on negligence. The elements of warranty and strict liability claims are as follows:

Defect : As previously noted, a defect is a feature which makes a product unreasonably dangerous for its intended use.

Seller or Sale : Generally, this requirement would exclude leases or loans of products. It may also exclude products provided only incidental to a transaction in which the primary focus is service. A seller may be anyone who sells the product or a component of the product to any other party through the distributive chain, up to and including the retail sale to the consumer. A manufacturer “sells” the product to a wholesaler. A manufacturer of a component part “sells” that part to the manufacturer of the product in which the component part will be incorporated. A wholesaler “sells” the product to the retailer, who in turn “sells” the product to a consumer.

Defective at the Time it Leaves the Control of the Seller : It must be shown that the product was defective at the time it left the control of the seller. In a case against a manufacturer that time would be when the product is sold and delivered to a wholesaler. In the case of a wholesaler, that time would be when the product is sold and delivered to a retailer. With a retailer, that time would be when the product is sold and delivered to a consumer. Needless to say, if the condition of a product changes so as to render the product unreasonably dangerous after the product has left the control of a defendant, that defendant cannot be held liable, unless the change was reasonably foreseeable within the scope of the intended use of the product.

Defect Causing Plaintiff’s Injuries : In all personal injury cases causation is a crucial element of a plaintiff’s claim, and this in no less true in product liability cases. First, there must be medical causation of the injuries claimed by a plaintiff to the danger of the product. In most cases, this will not be a problem, unless the claim involves medical conditions which arguably were not caused by the injury. In addition, other defenses to product liability claims may be couched in terms of causation. For instance, a plaintiff’s failure to adhere to instructions for using the product may be described as an intervening, new cause of the plaintiff’s injury, relieving the defendant of responsibility due to lack of causation. Misuse of a product is a defense to product liability claims, and this defense may couched in terms of causation.

No Requirement to Show Negligence and No Defense of Contributory Negligence : As previously indicated, under both strict liability and warranty theories, a plaintiff need not prove negligence. Similarly, the defense of contributory negligence of the plaintiff, available in product liability cases founded upon negligence, is not in most jurisdictions available to a defendant in cases involving strict liability and warranty. The defense of assumption of risk may or may not be available in any or all of these theories, depending upon the rulings in a particular jurisdiction.

This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.

If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@MNnursinghomeneglect.com, or call Ken at 612-743-9048 or toll free at 1-888-452-6589.

Free Consultation on Issues of Elder Abuse and Neglect Serving all of Minnesota Toll Free 1-888-452-6589

Free Consultation on Issues of Elder Abuse and Neglect Serving all of Minnesota Toll Free 1-888-452-6589

 

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