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The prescription drug Fosamax (alendronate sodium) is a medication which has been prescribed to hundreds of thousands of postmenopausal women to treat osteoporosis and help increase bone mass thereby reducing the chance of spinal or non-spinal fractures. Fosamax has also been prescribed to increase bone mass in men with osteoporosis. This drug is manufactured in the United States by Merck Sharp & Dohme Corp., a subsidiary of Merck & Co., Inc. Side effects ofFosamax may include the following:
1. Esophagus problems including irritation, inflammation, or ulcers
2. Low blood calcium levels (hypocalcemia) which may lead to muscle spasms, twitches, or cramps as well as numbness or tingling in the face, fingers, toes, and around the mouth
ABC News ran a story on May 10, 2012 about the dangers of “bone drugs” stating, “In a report published in the New England Journal of Medicine on Wednesday, the U.S. Food and Drug Administration raised concerns about the potential for some serious side effects in women taking bone-building drugs called bisphosphonates, specifically Fosamax, Actonel and Reclast. The published findings are not new. In 2011, the agency voiced concerns that taking the drugs long-term may actually make bones weaker and increase the risk of rare but serious side effects such as atypical fractures of the thigh bone, esophageal cancer and osteonecrosis of the jaw, a rare but painful condition in which the jaw bone crumbles. To investigate, the FDA reviewed data from women who had taken the drugs for six to 10 years.” Underscoring just how commonly these medications are prescribed, ABC News commented, “According to the FDA, doctors wrote more than 150 million prescriptions for bisphosphonates between 2005 and 2009.”
At the end of 2013, Merck settled with about 1,200 plaintiffs alleging that Fosamax caused them to suffer osteonecrosis of the jaw (“ONJ”). ONJ is a rare condition in which the patient suffers degeneration and deterioration of the jaw and often necessitates surgical repair with bone grafting. This recent settlement requires a total of about $27.7 million to be paid by Merck. Before anyone feels bad for Merck, he or she should also know that some researchers estimate that Merck “earned” about $3 billion (with a “b”) in 2007 from Fosamax. There are still many unsettled suits.
While alendronate sodium does have some appropriate indications, there are serious side effects which can occur. Most of the lawsuits focus on one of two harms – femur fractures or osteonecrosis of the jaw. Each is treated differently by many of the lawyers handling these cases. If your physician has prescribed Fosamax for you, you should immediately discuss whether there are safer alternative drugs for you. After weighing the risks and benefits, you and your physician can determine what drug is best for you. If you have taken Fosamax, and have developed osteonecrosis of the jaw, you should know that attorney and physician Paul J. Molinaro is available to answer your legal questions and help you determine whether you are entitled to compensation from the manufacturer of this drug. You can reach Paul J. Molinaro, M.D. J.D. toll free at (888)MDJDLAW. The initial consultation is also free, and if Paul determines that you have a case, and you decide to hire Paul, he will represent you on a contingent basis..
When You Need a Lawyer, Call the Doctor!
Call Attorney and Physician Paul J. Molinaro, M.D., J.D.
According to its manufacturer, AbbVie, “AndroGel® (testosterone gel) 1% and 1.62% are controlled substances, available by prescription, used to treat adult males who have low or no testosterone.” The AndroGel website offers the following ten question yes-no quiz to see whether a man “should talk to” his “doctor about Low Testosterone:”
- Do you have a decrease in libido (sex drive)?
- Do you have a lack of energy?
- Do you have a decrease in strength and/or endurance?
- Have you lost height?
- Have you noticed a decrease in your enjoyment of life?
- Are you sad and/or grumpy?
- Are your erections less strong?
- Have you noticed a recent deterioration in your ability to play sports?
- Are you falling asleep after dinner?
- Has there been a recent deterioration in your work performance?
The ten questions might just as well ask, “Are you getting old?” or “Are you naturally aging?” Snake oil salesmen have been selling fountain of youth elixirs since people starting getting old. Fortunately, most snake oils are only harmful to the purchaser’s wallet as many of the alleged aging cures are harmless. However, once in a while a potion does contain harmful ingredients or actual medicinal compounds which have major physiological effects. AndroGel seems to be promoted as the cure for a newly discovered disease called, “Low T.” However, its safety is in question.
On January 31, 2014, the United States Food and Drug Administration (FDA) issued a Safety Announcement regarding testosterone products. This communication stated, “At this time, FDA has not concluded that FDA-approved testosterone treatment increases the risk of stroke, heart attack, or death. Patients should not stop taking prescribed testosterone products without first discussing any questions or concerns with their health care professionals. Health care professionals should consider whether the benefits of FDA-approved testosterone treatment is likely to exceed the potential risks of treatment. The prescribing information in the drug labels of FDA-approved testosterone products should be followed.” While the beginning of this Safety Announcement might not seem alarming, the FDA further states, “None of the FDA-approved testosterone products are approved for use in men with low testosterone levels who lack an associated medical condition. FDA-approved testosterone formulations include the topical gel, transdermal patch, buccal system (applied to upper gum or inner cheek), and injection.”
What is “an associated medical condition?” The manufacturer of AndroGel would have one believe that Low T (the condition of having low testosterone levels) is an associated medical condition to the condition of having low testosterone. If you think this is strange logic, you would be correct. There are some who feel that the manufacturer of AndroGel, realizing that it had a profitable “cure” for a disease that did not exist, simply invented a disease with ten associated symptoms (see quiz above). Recent studies have shown that certain groups of men taking testosterone will have increased risks of stroke and heart attack. Lawsuits are now being filed against the manufacturers of AndroGel and other testosterone products for failing to warn consumers about the deadly harm that testosterone can cause. Without getting technical, testosterone has been shown to increase the red blood count (thickening of the blood) which can cause clotting issues leading to stroke and heart attack.
If your physician has prescribed AndroGel for you, you should immediately discuss whether you truly need it and whether there are safer alternative drugs. After weighing the risks and benefits, you and your physician can determine what drug, if any, is best for you. If you or a loved one live in California, have taken AndroGel, and have suffered a stroke, you should know that attorney and physician Paul J. Molinaro is available to answer your legal questions and help you determine whether you are entitled to compensation from the manufacturer of this drug. You can reach Paul J. Molinaro, M.D. J.D. toll free at (888)MDJDLAW. The initial consultation is also free, and if Paul determines that you have a case, and you decide to hire Paul, he will represent you on a contingent basis.
When You Need a Lawyer, Call the Doctor!
Call Attorney and Physician Paul J. Molinaro, M.D., J.D.
– Paul J. Molinaro, M.D., J.D.
The prescription drug Pradaxa (dabigatran etexilate mesylate) is a medication which has been prescribed to hundreds of thousands of patients to thin their blood thereby reducing the risk of stroke and blood clots when they have certain underlying heart disease such as atrial fibrillation or heart valve problems, but not artificial heart valves. On December 19, 2012, the United States Food and Drug Administration issued the following Safety Communication about Pradaxa: “The U.S. Food and Drug Administration (FDA) is informing health care professionals and the public that the blood thinner (anticoagulant) Pradaxa (dabigatran etexilate mesylate) should not be used to prevent stroke or blood clots (major thromboembolic events) in patients with mechanical heart valves, also known as mechanical prosthetic heart valves. A clinical trial in Europe (the RE-ALIGN trial) was recently stopped because Pradaxa users were more likely to experience strokes, heart attacks, and blood clots forming on the mechanical heart valves than were users of the anticoagulant warfarin. There was also more bleeding after valve surgery in the Pradaxa users than in the warfarin users.”
Warfarin (Brand names include Coumadin, Jantoven, and Uniwarfin) has been on the United States market since about 1954. This well-known anticoagulant continues to be commonly prescribed to patients who are at risk of blood clots which can lead to serious consequences such as stroke and death. While warfarin has been time-tested and proves itself to be quite effective, and relatively safe (“safe” based on a risks and benefits analysis which considers the serious consequences of not anticoagulating patients at high risk of clotting). To maintain safety while taking warfarin , a patient must allow blood levels to be tested about every three months (to make sure there is not too much or too little in a patient’s system) and avoid foods which contain Vitamin K (such as many leafy green vegetables) which can render warfarin ineffective. Failure to take warfarin exactly as prescribed and to monitor warfarin levels can lead to uncontrolled bleeding which if not treated emergently can cause a patient to bleed to death. Fortunately, there are several antidotes to warfarin toxicity – all of which are commonly available to healthcare professionals. Antidotes include injectable Vitamin K, plasma (fresh frozen or cryosupermatant plasma), prothrombin complex concentrates, and recombinant factor VIIa.
One of the big “selling” points for Pradaxa as opposed to warfarin is that the patient taking Pradaxa does not have to submit himself or herself to regular blood draws and dietary restrictions. What promoters of Pradaxa conveniently do not tell physicians and patients is that there is no commonly available antidote for a Pradaxa overdose. Thus, should a patient’s Pradaxa levels reach a toxic level (or he or she suffers serious trauma in a car accident, for example), he or she has a good chance of bleeding to death while physicians watch helplessly. Pradaxa levels are effected by advanced age, renal (kidney) function, extremes in body weight, and drug-drug interactions (aspirin, ibuprofen, nonsteroidal antiinflammatory drugs, and many other commonly used drugs). According to the National Center for Biotechnology Information, “In early 2013, there is still no routine coagulation test suitable for monitoring these patients; specific tests are only available in specialized laboratories. In early 2013 there is no antidote for dabigatran, rivaroxaban or apixaban, nor any specific treatment with proven efficacy for severe bleeding linked to these drugs. Recommendations on the management of bleeding in this setting are based mainly on pharmacological parameters and on scarce experimen-Haemodialysis reduces the plasma concentration of dabigatran, while rivaroxaban and apixaban cannot be eliminated by dialysis.”
In the last few years, several thousand patients, who have suffered serious injuries including death, have sued Boehringer Ingelheim Pharmaceuticals, Inc., the manufacturer of Pradaxa for failing to warn patients and their physicians about the serious adverse events that may result from taking Pradaxa. Many of these suits also allege that Boehringer promoted Pradaxa as being safer than warfarin .
If your physician has prescribed Pradaxa for you, you should immediately discuss whether there are safer alternative drugs for you. After weighing the risks and benefits, you and your physician can determine what drug is best for you. If you have taken Pradaxa, and have suffered uncontrollable bleeding, you should know that attorney and physician Paul J. Molinaro is available to answer your legal questions and help you determine whether you are entitled to compensation from the manufacturer of this drug. You can reach Paul J. Molinaro, M.D. J.D. toll free at (888)MDJDLAW. The initial consultation is also free, and if Paul determines that you have a case, and you decide to hire Paul, he will represent you on a contingent basis.
– Paul J. Molinaro, M.D., J.D.
Many people are talking about strategic defaults. If you don’t know what a strategic default is, it’s when a homeowner can afford the mortgage but the home’s value is so far below the amount owed on the loan that the homeowner decides to walk away rather than pay. The legal and tax implications of a strategic default are left for another discussion. What follows here is a consideration of whether strategic default is “wrong.”
I have heard people heatedly argue that when a person takes out a mortgage, he or she has made a solemn oath to pay back the money, and should pay that money come hell or high water. Aside from being an exaggeration, such a statement is only partly true. Cutting right to the heart of what a mortgage really means, the mortgage is simply an agreement between homeowner and bank that either of two things will occur. This is a very important concept to understand. The mortgage does not only state that a borrower must pay the money back. The mortgage states: (1) If the borrower pays the money back, then the lender will release its lien on the home or (2) If the borrower does not pay the money back, then the lender can take the home.
Reread one and two above and while doing so, keep the two parts completely separated by the word “or.” Lenders are professional mortgage players with full understanding of all the risks of loaning money secured by real property. Lenders use expensive Ivy League lawyers to draft their paperwork. Lenders employ experts in theoretical mathematics to create payback schedules. Lenders have Wall Street’s sharpest wits mix bad loans with good and create sausage-meat investment funds. Lenders reap huge profits at every step in the lending process from funding loans to selling toxic loan pools to unsuspecting investors or passing them to government (tax-payer) backed securitizers. The average homeowner couldn’t trick a lender if his or her life depended on it. Borrowers are basically given take it or leave it choices when it comes to getting mortgages. It is, and has always been, slick and savvy lender versus little ignorant borrower all the way through the process.
With that understanding, and the understanding that the lender fully understands every finely printed term on every page in the loan documents, it is obvious that the lender fully contemplated what it wants to happen when the borrower does not pay. In fact, most of documents in the huge packet of loan documents address what happens when the borrower does not pay as opposed to what happens when he or she pays.
It would be wrong if a lender accepted all the payments required and then kept the lien on property. It would be wrong if a borrower does not pay the mortgage but gets the lien off the property. What is not wrong is when one of the two outcomes contemplated in the loan documents occurs exactly as contemplated. Neither lender nor borrower breaks a promise when either one of the two contemplated outcomes occurs.
Putting it even more simply, lenders are big boys and know exactly what they are doing. Lenders know the risks of borrowers failing to pay. Lenders know the ups and downs of real estate markets. Lenders know how to pass any losses they suffer onto borrowers and the U.S. government. It is wrong to take advantage of the uninformed. Exercising one of two fully-contemplated options is not wrong.
“Medical malpractice” refers to actions for personal injury against a healthcare provider based on professional negligence. The term is most often used to apply to law suits brought by patients against physicians as a result of getting “bad care.” However, “healthcare provider” also includes nurse practitioners, physician assistants, dentists, chiropractors, and anyone else holding a healthcare license.
Licensed providers must practice with no less than the level of learning and skill ordinarily possessed by other practitioners in the same or similar locality and under the same circumstances. This level is the “standard of care.” Hence, licensed healthcare providers must practice within the standard of care.
The first clue that something has gone wrong with your medical condition is that you do not get better, or in some cases get worse. When you seek treatment for a medical illness, you expect to get better. Note I stated that the “first clue” to a medical malpractice case is when a patient does not get better. The next step in evaluating a potential medical malpractice case is to determine why a patient did not get better or why the patient got worse. Most times when a patient does not get better, it is not the result of negligence.
If you suspect that your physician has been negligent, you should get a second medical opinion from another physician. In some cases, your insurance plan will cover the expense of second opinions. Because coverage may vary according to your health insurance plan, contact your insurance carrier to learn more about your rights to a second opinion. If the second opinion suggests that your initial care was below the standard of care or if you are not able to get a reliable second opinion, you should consult a medical malpractice attorney.
When consulting an attorney, you should be ready to provide the date on which you knew or should have known that you had a medical problem or suffered harm from medical care that you received. This date is important because there are time limits, set by law, which you must follow when suing a healthcare provider. This time limit is called a “statute of limitations.” Thus, if you suspect you have been a victim of medical negligence, you should not delay in seeking legal advice. Most medical malpractice attorneys offer free, though brief, initial consultations to go over the basic facts surrounding the care received. They will then provide an opinion as to what next steps, if any, should be taken.
First, it should be noted that lawsuits are not fun. The process is costly and consuming. For this reason alone, only cases that have merit and a likely payoff should be brought. Not only is this a good idea, it is also the law. Frivolous lawsuits are not just disfavored; they can result in a vexatious litigant paying the other side’s attorneys’ fees, and for the lawyer, disciplinary action. Now, with that out of the way, here are some frequent claims that give rise to successful lawsuits.
Federal lending laws are the primary source that governs lending institutions with respect to mortgage transactions. A well publicized example is 15 U.S.C. § 1601 et seq. better known as Truth In Lending Act (“TILA”). TILA was passed in 1968. Joseph Barr, then Under Secretary of the Treasury, noted in testifying before a Senate subcommittee that “such blind economic activity is inconsistent with the efficient functioning of a free economic system such as ours, whose ability to provide desired material at the lowest cost is dependent on the asserted preferences and informed choices of consumers.”
TILA “was designed to remedy the problems which had developed.” (Mourning v. Family Publications Svc., Inc. (1973) 411 U.S. 356, 364). Many would argue that TILA has not exactly “solved” the problem as was originally hoped. What is helpful about the law is that it creates strict liability for specific compliance issues for lenders. Particularly, a lender must provide accurate material disclosures. Failure to do so gives a borrower various forms of relief which can include, monetary damages, rescission of their loan, and attorneys’ fees. Many suits have sought relief under TILA, but the results have been largely mixed. TILA claims are relatively easy to bring, but difficult to maintain in state or federal court. Successfully litigating them requires a complete understanding of TILA, the mortgage business, and the associated case law.
State law claims are also available in lending disputes. Essentially, a mortgage transaction involves a contract, and as such certain contract laws apply. Additionally, claims for the torts of fraud and negligence are common in these cases. In the event the borrower utilizes the services of a mortgage broker, claims against the lender can be difficult. A plaintiff must show some connection to invoke agency principles and this connection must be beyond the mere relationship status of a lender and a broker. Still, the conduct that has taken place in the mortgage industry has created many instances where a lender can be directly liable for the conduct of the broker. Additionally, the California Department of Real Estate has setup a recovery fund that will provide a source for relief if a Plaintiff successfully proves a claim of fraud against a licensee.
Regardless of the claim, the most important time in a lawsuit is before it is filed. A lawyer must exercise great diligence in ascertaining the facts and corresponding potential claims. The client must contemplate the effects of a lawsuit and the commitment that is required.
A borrower should be cautious of a lawyer that anxiously encourages bringing suit. Zealous representation is important, but prudence is critical. Discussing your case with several lawyers is a great way to gain perspective on your options. A client should also be willing to pay for a consultation. It is far better to have a lawyer that can provide objective sage advice, rather than one who views the consultation as a sales opportunity. Sometimes the best advice a lawyer can give you is to not hire a lawyer.
Despite the record numbers of California homeowners losing their upside down homes due to foreclosures and short sales, there is a lack of accurate information about what happens when a home is lost to foreclosure or short sale. California law offers some unique protections to people who lose their primary residences to foreclosure through its anti-deficiency statutes (CCP § 580 and § 726).
California’s “one action” and “security first” rules are just part of California’s anti-deficiency laws. These laws are not only complex but currently in a state of flux. Thus, an experienced mortgage lawyer should be used when facing potential problems with a lender “coming after you” for the difference between the sale price and what was owed.
The anti-deficiency laws were written to prevent: (1) multiplicity of actions; (2) overvaluation of the security; (3) worsening an economic recession by holding debtors personally liable after losing their homes; and (4) allowing creditors to low-ball bids at the foreclosure sale to acquire property below market value and then going after the borrower for money.
Under CCP § 580(b) deficiency judgments are barred for purchase money loans of a primary residence. CCP § 580(d) specifically bars deficiency judgments after a non-judicial foreclosure. Thus, whether a primary residence (that has not been refinanced) is lost to trustee’s sale or non-judicial, all a lender can do is foreclose on that home.
Furthermore, California’s one-action rule (CCP § 726) means that a lender should go after the security first – that is, before going after the borrower for money, a lender should foreclose. Thus, in certain circumstances, foreclosure on the security is a lender’s exclusive remedy and no deficiency judgment can be obtained afterward.
While many primary homeowners should have no worries about deficiency judgments, those property owners who refinanced, own investment property, or own commercial real estate may have reason to fear personal liability. The one-action rule and the anti-deficiency statutes might not be applicable to these property owners. In these cases, a lender with a deed of trust may initiate either a trustee’s sale or a judicial foreclosure.
Unlike a trustee’s sale, a judicial foreclosure is a lawsuit where the lender must sue all parties having subordinate interests in the property in order to extinguish their interests upon the foreclosure sale. When successful, the lender will obtain a judgment ordering sale of the property and the sale will be conducted by a court-appointed officer. The proceeds of the sale are then paid out to the beneficiary, and thereafter in the same manner as a trustee’s sale.
The principal advantage to a lender in pursuing a judicial foreclosure is that the lender can obtain a deficiency judgment provided: (1) the loan is a nonrecourse obligation and (2) no anti-deficiency laws apply. Lenders are often apprehensive of judicial foreclosure, because like any other lawsuit, a judicial foreclosure is an adversarial proceeding and involves considerable time and expense. Furthermore, the borrower retains a statutory right of redemption whereby he or she can regain ownership of the property by paying the foreclosure sale price plus certain other fees for up to one year following the judicial foreclosure sale.
Fortunately, judicial foreclosures are very rare in actual practice, and most first mortgagees accept whatever they get through trustee’s sale as satisfaction of the debt.