Here is a brief roundup of recent news in the area of false advertising. Two stories concern medical care, and consumers of medical care ought to know about them. One delves into the subject of mayonnaise, and whether a certain upstart manufacturer is selling the “real” item.
First, from The Center for Public Integrity, comes the troubling news that nursing home care levels may be much lower than families think. The Center’s investigation found stark differences in reports of staffing levels between the Nursing Home Compare website, used by many consumers in choosing a facility, and levels determined by the Center based on financials submitted by the homes. “More than 80 percent of the facilities reported higher registered nurse staffing levels on the public website than those the Center calculated through its analysis of the cost reports. In more than 25 percent of nursing homes nationwide, the amount of staff listed on the public website was at least double the level in the cost reports.” It is no secret that understaffing, in nursing homes or any other type of medical facility, invites avoidable complications and errors. So, buyer beware. Look beyond the Nursing Home Compare website. Visit the homes under consideration. Speak to families of current residents. Check consumer-oriented websites, and the Better Business Bureau. This difficult decision has become more challenging for families, who now need to beware of false advertising.
A medical manufacturer has also been accused of false advertising. It seems Becton Dickinson and Co needed to gain an edge in advertising its safety syringes. The company claimed that its products were not only sharper, but wasted less medicine than those made by rival Retractable Technologies Inc. Retractable sued Becton, claiming that Becton had used false advertising to attempt to corner the safety-syringe market. Following a jury trial, Retractable won $340 million dollars in damages, and a federal court order that Becton notify its customers of its false claims.
Because I don’t want to leave you feeling completely depressed about false advertising, I bring you news that pits health benefits against accuracy in advertising. Hampton Creek, a maker of vegan mayonnaise, Just Mayo, has been sued by Unilever, maker of Hellman’s mayonnaise. At issue is the age-old question: What is mayonnaise really made of? FDA guidelines list egg yolk as a necessary ingredient, and even Hampton Creek acknowledges that there is no egg yolk in Just Mayo. So is Just Mayo guilty of false advertising? The company president says “no,” pointing out that his company never claimed it was selling mayonnaise. That’s why the product is called “mayo.” Hampton Creek’s owner has vowed to continue the fight against Big Mayo.
UPDATE: Unilever, poster corporation for Big Mayo, may have just pointed out that it has stretched the definition of “real” mayonnaise in the same manner it has accused smaller competitor, Hampton Creek, of doing.
- The US Senate Subcommittee on Primary Health and Aging recently held hearings in response to a study by the Journal of Patient Safety that estimated the annual number of fatalities due to medical errors at 440,000 – well over 1,000 people a day.
That is equal to three 747 jumbo jets crashing every week. Add to that the 10,000 people who suffer non-fatal medical errors and misdiagnoses, and the scale of the problem begins to come into focus. This epidemic is worsened by the public’s unawareness of it. About half of the respondents of the Journal’s study believed the annual death total for medical errors was 5,000 or less – which is 80 times, or 8000%, lower than the actual figure. Read More
It sounds unfair, and arguably, it is. But, there are strict time limits on when you can file a medical malpractice lawsuit, and unless you are a lawyer who specializes in the area, or you are someone who is unfortunate enough to have already been through a medical malpractice lawsuit, you would have no idea of what the time limit is, or that it even exists. And frankly, you are unlikely to guess at what the limits are, because they appear to have been created arbitrarily.
The really bad news is that if you decide to file a medical malpractice lawsuit after the time limit has run out, you are out of luck. You can never pursue your claim, absent rare exceptions. That is why the time limits are called “statutes of limitation.”
The lesson from all this is: do not keep your suspicions about malpractice to yourself. The moment you suspect that you, or someone else you care about, has been the victim of medical negligence, find a medical malpractice lawyer to discuss your concerns with. Any good and experienced medical malpractice attorney will listen without judgment, and he or she will advise you about whether your claim can be an actual court case.
Take note, probably the most important thing you will learn by speaking to a medical malpractice attorney is the type of time limitation you are up against, and some of them are extremely short. For example, if the medical malpractice occurs in a municipal healthcare facility in New York State, you must file a Notice of Claim with the municipality within 90 days of the malpractice. In New York City, the municipal hospitals are those run by the New York Health and Hospitals Corporation, which is where the Notice of Claim must be directed. If you want to pursue your claim once it becomes clear that the municipality is not interested in settling your claim, you need to file a lawsuit within one year and 90 days from the malpractice.
If there is no municipality involved, and the facility is not run by the U.S., you have 2.5 years from the malpractice to bring suit. The same limit applies to individual healthcare providers.
Medical consumers should also be aware that most medical malpractice lawyers will not take on a new client who contacts them days, or even weeks before the time limit runs out. It does not leave us with enough time to properly evaluate your case. Hospitals and doctors are notoriously slow in responding to requests for medical records, and they are often voluminous and difficult to decipher.
So, whoever said “Speak now, or forever hold your peace,” was very wise. If you don’t pipe up early, you will have to remain quiet forever, legally speaking, about your injury that resulted from medical malpractice.