Monthly Archives: March 2009

FDA Gives Medtronic Brain Catheter Recall Highest Priority

Medtronic Corporation had voluntarily recalled its BioGlide Ventricular Snap Shunt Catheter in February. However, the FDA has now classified the recall as Class I which means that the defective medical device has a reasonable probability to cause serious injury or death.
The Medtronic device is a brain catheter which is supposed to drain excess fluid away from the brain. However, the catheter tends to disconnect necessitating a revision medical procedure.
The specific models recalled were manufactured from October 2002 through December 2008 and concern the following lot numbers: 27782 (Innervision), 27708, and 27802.
The catheters are used to treat hydrocephalus-a condition where excess fluid builds up in the brain. The pressure caused by the excess fluid can cause brain damage and death, if left untreated.
For those who’ve had the Medtronic brain catheter inserted, symptoms of hydrocephalus include but are not limited to the following: a rapid increase in head size, a large soft spot on the top of the head, dizziness, blurry vision, vomiting, seizures, nausea, and sluggishness.
Symptoms vary due to age. It is imperative to contact your physician if you or a loved one show any such symptoms or signs.

Sex Abuse Survivors and the Church’s Consistent Ethic of Life

As I read reports over various Catholic bishops and church organizations fomenting protest over President Obama’s invitation to the give the commencement address at Notre Dame University, I couldn’t help but think of the late Cardinal Joseph Bernardin’s plea for a consistent ethic of life ie. a “seamless garment” as he called it. The protests over the Notre Dame invitation concern President Obama’s stance on abortion and stem cell research.
This post has no intention of delving into the abortion/stem cell debate or President Obama’s postitions on either issue. However, I would like to take a moment and reflect on why the Catholic Church has been so vocal on these issues when another “life” issue ie. the treatment of those who’ve suffered sexual abuse continues to receive scant attention from the Church and the bishops. Some will say that the bishops have “fixed” the problem that resulted in the sexual abuse scandal. Others will say the church has made great strides to address the issue.
Yet, the manner in which these life issues, including the sexual abuse of children, is qualitatively different. However, if you re-examine Cardinal Bernardin’s theory of a consistent ethic of life, the sexual abuse of children should be no less worthy of church attention and action than say abortion or stem cells. How is it pro-life to protect a fetus while not doing the same for a young child? How is it pro-life to deny justice to those who’ve suffered due to the sexual abuse of a priest?
It seems to me that an aggressive implementation of this consistent ethic of life teaching would go a long way in restoring credibility to the bishops as well as the teaching authority of the church.

NY Catholic PR Machine Humming Along

As I predicted earlier, the NY Catholic Conference’s public relations apparatus is firing on all cylinders. Just today, I’ve read op-ed pieces about how the NY Child Victims Act if signed into law, will bankrupt the dioceses of NY State as well as the Archdiocese of NY. In another editorial, I read that the Catholic Church in New York is already handling the priest abuse crisis and has been doing so since the scandal in Boston erupted in 2002. Both slanted pieces are not aimed at the truth but rather a call to arms for the Catholic faithful who are asked once again to defend Holy Mother Church from the onslaughts of the lawyers and Catholic bashers. While this is unspoken and hyperbolic, it is the underlying message behind the Catholic lobbyists PR onslaught designed from allowing the Child Victims Act from being signed into law.
A thoughtful reader of the New York scene might have noticed that the welfare of children receives nary a mention. That’s because for those would seek to destroy the Child Victims Act, it’s not about the children. It’s about power and the institution. For the NY State legislators and NY voters, it’s time for you to decide. Who will you support: the children or the powerful institution that has neglected their welfare for the past 50 years?

Tallahassee Update

Rep. Rick Kriseman (D-53) is a member of the Florida House of Representatives and an attorney with Saunders & Walker PA
The worker’s comp law in Florida was last changed in 2003. Prior to the change, Florida’s workers’ compensation insurance rates consistently ranked as the most expensive or second most expensive in the country. The changes in the 2003 legislation made several changes, the most controversial of which was the change to the provision governing attorney’s fees in workers’ compensation. The 2003 legislation retained a contingency fee schedule for attorney’s fees, but removed a listing of factors a judge of compensation claims (JCC) was required to consider, thus allowing the judge to increase or decrease the amount of the award. Some of the most important factors removed were the time and labor required, the difficulty of the case, customary charges, and the lawyer’s experience, reputation, and ability.
In October 2008, the Florida Supreme Court heard the case of Murray v. Mariner Health and ACE USA. The Murray case involved a claim for benefits that had been denied by the insurance company. At the conclusion of the trial, the Court ruled in favor of the claimant, Ms. Murray, finding that the carrier had denied Ms. Murray benefits she was legally entitled to receive.
Because the carrier had wrongfully denied benefits, the carrier was responsible for paying Ms. Murray’s attorney’s fees. Although Florida law at the time called for payment of a “reasonable fee”, the judge applied a statutory percentage formula, which resulted in the attorney receiving a fee of $648.84 for more than 80 hours of work (which breaks down to $8.11 per hour). The judge also commented that had he been allowed to use what was the reasonable local hourly rate in calculating a fee, the total would have been in excess of $16,000.00.
On appeal, the Florida Supreme Court ruled that the attorney’s fee schedule (which caused the award of $648.80 to Ms. Murray’s attorney), when read together with a provision that awards “a reasonable attorney’s fee” to the prevailing party, creates an ambiguity as to whether the fee schedule is the sole basis for determining a reasonable attorney’s fee. As such, the Supreme Court struck down that provision of the statute regarding “reasonable fees”.
House Bill 903, filed by Rep. Anitere Flores, attempts to address the impact of the Murray decision on workers Compensation by clarifying that awards of attorney’s fees, except in certain medical only cases, are to be calculated based solely on the fee schedule, not on any of the other factor’s previously described. The bill further states that an attorney who attempts to negotiate a rate different from that provided under law is subject to criminal prosecution.
Those supporting this change state that without this change, worker’s comp rates will once again begin to rise, placing a large financial burden on both small and large businesses. In support of this argument, they point to the decreases in rates which occurred after the 2003 legislation went into effect.
Those opposed to HB 903 state that rates were high in Florida prior to the 2003 legislation, not because of attorney’s fees, which, they point out, are only awarded when a carrier is found to have unlawfully refused to pay benefits due, but instead because carriers are allowed to include in their base rate attorney’s fees that they paid to both their own attorneys and to the Claimant’s attorneys. Neither medical malpractice carriers, property and casualty carriers or automobile insurance carriers are permitted to charge back attorney’s fees to their insureds. Only workers comp carriers are currently permitted to do this.
A second, and more important reason cited for high workers comp rates is because of the recommendations of the organization that submits requests for rate increases to the State on behalf of carriers, NCCI. NCCI, the National Council on Compensation Insurance, in their own words, is “the largest provider of workers compensation and employee injury data and statistics in the nation. NCCI analyzes industry trends, prepares workers compensation insurance rate recommendations, determines the cost of proposed legislation, and provides a variety of services and tools to maintain a healthy workers compensation system. ”
This organization helps the Florida Office of Insurance Regulation determine what rates are appropriate for workers comp carriers.
It should be noted that most of NCCI’s Board of Directors all work for insurance companies, many of whom sell workers comp insurance (including John T. Leonard, Maine Employers’ Mutual Insurance Company, Robert A. Lindemann, Zurich North America, Gary J. Thompson, The Hartford, Susan Doyle, Liberty Mutual Group, Bruce G. Kelley, EMC Insurance Companies, Craig L. Nodtvedt, Alaska National Insurance Company, and James C. Roberts, American International Group (AIG).
According to Steven Alexander, head of the State’s Office of Consumer Advocate, NCCI has recommended rates which overcharge businesses in the State of Florida by more than 25% over the past 10 years. He has recommended that NCCI be banned from filing rate increase requests on behalf of individual carriers, as he believes a conflict of interest exists in this current arrangement.
Yesterday, this bill was heard on second reading on the floor of the house. At the time it was heard, an amendment to the bill was offered by Rep. J.C. Plana. The primary changes offered in the amendment were that 1) it returned the attorney fee scale to the same level as it was prior to 2003 or a fee equal to fee paid by the carrier to it’s own attorney, which was greater; 2) it permitted claimants the opportunity to contract with their own attorney a fee in excess of the sliding scale provided under law; and 3) it denied carriers the opportunity to include fees paid to claimant’s attorneys and defense attorneys in their rate base calculations.
The sponsor of the amendment asserted that his amendment would best protect the rights of injured employees while helping to keep worker comp rates lower. Unfortunately, only 44 other members of the legislature (including me) agreed with Rep. Planas, and as such, his amendment failed.
Those of us who supported this amendment fear that should HB 903 pass the full legislature and be signed into law, access to the Court will be denied injured workers as they will face difficulty finding attorney’s willing to handle their claim if the amount in question is minimal. Additionally, many of us fear that there will be no incentive for a workers comp carrier to settle minor claims, as they know the claimant will have a difficult time retaining an attorney to represent their interests. As I expect this bill to pas the House next week, unless something in this bill changes prior to our next vote, for the sake of all workers in this State, I hope either the Senate or Governor do not let this bill become law.

Two South Florida Priests Going to Prison

Two priests who worked in the Diocese of Palm Beach have been senteced to prison sentences. Rev. Francis Guinan, 66, was convicted of grand theft in pilfering hundreds of thousands of dollars from St. Vincent Ferrer Catholic Church in Delray Beach. Another priest, Rev. John Skehan has also been sentenced to prison time. Both priests have been found guilty of bilking the parish for expensive vacation, trips with girlfriends and extravagant living. Skehan has been sentenced to 14 months in prison whil Guinan received a prison sentence of 4 years.
Remarkably, the Diocese of Palm Beach and supporters of both priests had asked the judge to be lenient in his sentence. One priest friend argued that Guinan had suffered enough and didn’t deserve a prison sentence. This is what disturbs me. Anyone else would have received a harsher sentence and citizens would not have argued for a reduced sentence. Yet, their status as priests, in some people’s view, gives them a license to steal and do whatever they want. This is the saem typ of reaction we get when taking on the Catholic Church in sexual abuse cases. Somehow, because the defendant is a priest, he should be afforded a different set of guidelines when it comes to criminal behavior. The problem lies with the society that excuses criminal behaior on the part of a religious figure, who should be held to a higher stander, not a lower one.

Rep. Rick Kriseman Files Raytheon Pollution Bill

While Rep. Kriseman is an attorney at the firm of Saunders & Walker, he has no association with nor is he involved in any fashion with the litigation concerning Azalea residents and Raytheon. Rick Kriseman’s work at the firm is concentrated solely and exclusively in general liability issues.
Saunders & Walker attorney and Florida House Rep. Rick Kriseman (D-53) has filed HB 1229 which, if passed, will notify residents with a 500 foot radius of a contaminated test well. Additionally, the bill would notify schools that are within a mile radius of such contamination. The bill would also make it necessary to inform all elected officials, at every level, of the pollution. The costs for notification would be borne by the responsible parties for the contamination and not the taxpayer.
This bill arose out of the Azalea neighborhood debacle where residents were not informed about a toxic plume coming from the local Raytheon plant in St. Petersburg. The plume has spread and local residents remain anxious about the potential consequences to their health as well as diminution of property values.
While Rep. Kriseman admits the bill is not perfect, he pledges to work diligently to ensure the future safety of Floridians.

NY Times Sides with Abuse Survivors: Pass Child Victims Act

The New York Times published an editorial in support of the NY State Legislature’s Child Victim Act. The editorial is thoughtful and skillfully delineates the reasons why the bill should become law. I was particularly impressed with the editorial’s assessment of the fairness question. The Times correctly notes that fairness to victims who’ve suffered in silence and powerlessness for years far outweighs the fairness to the predators and the institutions that covered up for them.
Good for the Times! Passage of the NY abuse legislation will help those victimized by sexual predators to move from being victims to being survivors. Additionally, a purge of institutional documents detailing the cover-up will also help cleanup the institutions themselves. In the end, both survivors and the institutions will be healthier for it.

NY Cardinal Egan Discusses. . .Celibacy???

I have to admit that after reading the New York Times article concerning Cardinal Egan’s radio interview, I was left puzzled. Egan is about to retire from arguably the most important Catholic See in the country and he chooses to question the discipline of celibacy? I find it rather odd. However, after reading National Catholic Reporter John Allen’s piece on Pope Benedict’s trip to Africa, another thought occurred to me. Perhaps, Egan, himself a skilled handler of the press and canon lawyer, wanted to deflect attention away from the upcoming vote in Albany on the Child Victim Act.
Allen’s piece on how Benedict got trapped into a discussion of condoms when the Pope clearly wanted to talk about his message of hope for the African continent. In other words, Benedict allowed the traveling press corps to control the news cycle. Perhaps Egan is a bit more clever. By revisiting the question of celibacy in light of the priest shortage in the US, he avoids the more difficult issue of the abuse legislation being considered in Albany.
While this is mere conjecture on my part, it may be that Egan wanted to discuss the shortage of priests rather than those who’ve abused in New York. If that was his strategy, it worked. The New York Times’ headline talked about Egan breathing new life into the discussion on celibacy. If the Cardinal is talking about a hot topic such as celibacy it allows Catholic lobbyists in Albany to continue behind the scenes applying pressure on state legislators.

NY Child Abuse Legislation: It’s About Protecting Children

If you’ve been following the Child Victim’s Act bill work its way to the full NY State Assembly in Albany, you’ve those opposed to the legislation say many things about why the bill is bad. Some objections to the bill have no basis in fact: 1)the bill targets the Catholic Church, 2)the Catholic Church will have to close schools and hospitals, and 3)the bill is dredging up the past and the problem has been resolved.
First, the NY abuse legislation doesn’t target any one individual or institution. If you want proof read the bill. Secondly, in states where similar legislation has passed (California and Delaware) no such occurrence has happened. Finally, the sex abuse scandal has not ended because far too many predators have eluded justice thanks in part to restrictive and outdated statutes of limitations which protect the predator rather than children.
While most legislation is complicated, the Child Victim’s Act is simple. It’s designed to protect children and help those who’ve been abused in the past come to grips with the injustice. If predators and the institutions that protected them are not forced to change, children will continue to be hurt.
In the upcoming weeks prior to a vote on the measure, we are going to hear apocalyptic tales of how this bill hurts the Catholic Church. Just remember whom it’s designed to help: our children.

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