BH&F Blog

Joan Lowry with the Associated Press reports in a July 25th article in the Birmingham News that House lawmakers scolded federal regulators Thursday for failing to implement recommendations made in 2001 that were designed to keep medically unfit commercial truck and bus drivers off the nation's highways.

House Transportation and Infrastructure Committee Chairman James Oberstar, D-Minn., told Rose McMurray, the chief safety officer for the Federal Motor Carrier Safety Administration, that deaths and injuries caused by medically unfit drivers are "on your conscience" because the agency has taken so long to act.

"I think if your agency had a safety mission and a safety mind-set it wouldn't have taken you eight years," Oberstar told McMurray at a hearing, demanding that she "carry back to your agency" his message to "get people moving."

To read the entire story click here.

If you or someone you know has been involved in a serious traffic accident involving a tractor trailer, eighteen wheeler or bus, call the experienced Birmingham, Alabama personal injury attorneys at Burke, Harvey & Frankowski. We are here to help you obtain the compensation you deserve.

A report by KOTV in Tulsa, Oklahoma provides details of some disturbing allegations of abuse and neglect of a man in an Oklahoma nursing home. The accusations stem from Jones, Oklahoma, not far from Oklahoma City.

They involved 41-year-old James Curnutt. His family says he was raped and abused while living at the Oak Hills Living Center from August 2007 through February 2008. They also say Curnutt was neglected and left in soiled clothing.

"He's incontinent. Been left wet. Been left dirty. I've had to go down and say, ‘please change James,'" said his father, Richard Curnutt.

The family says Oak Hills didn't properly investigate the allegations of abuse.

Oak Hill leaders say they did look in to the accusations, but did not find any criminal activity. The health department determined Oak Hills was neglectful.

Unfortunatley, incidents such as that described in the Oklahoma report are all too common. If you are your loved one have been abused or neglected in a nursing home, contact the lawyers of Burke, Harvey & Frankowski, LLC in Birmingham, Alabama. We provide a strong voice for abused and neglected nursing home residents and their families.

There are some healthcare facilities such as hospitals and nursing homes that have recently been sued by their employees because those facilities have in fact committed violations of the Fair Labor Standards Act (FLSA) by improperly “averaging” weeks in which their employees worked overtime with weeks in which they did not work overtime. This has the effect of lowering the amount of “overtime” pay that these facilities pay out to their employees notwithstanding the fact that their employees worked hard and are entitled to their “overtime pay.”

The Fair Labor Standards Act (FLSA) requires that employees covered under the Act must receive overtime compensation of “not less than one and one-half times” the employee’s regular rate of pay. See 29 U.S.C. § 207(a)(1). Under the FLSA, overtime pay generally accrues whenever an employee works over 40 hours in a “workweek” consisting of a fixed and recurring period of seven consecutive days. See 29 C.F.R. §§ 778.103, 778.105. In calculating overtime hours, each individual workweek generally stands alone, and the “averaging” of workweeks is not permitted. See 29 C.F.R. § 778.104.

The FLSA provides an exception to the seven-day workweek rule for certain healthcare employees. In fact, section 7(j) of the Act provides as follows:

No employer engaged in the operation of a hospital or an establishment which is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises shall be deemed to have violated subsection (a) if pursuant to an agreement or understanding arrived at between the employer and employee before performance of the work, a work period of fourteen consecutive days is accepted in lieu of the workweek of seven consecutive days for purposes of overtime computation and if, for his employment in excess of eight hours in any workday and in excess of eighty hours in such fourteen day period, the employee receives compensation at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207 (j). This exception is known as the “8 and 80 Rule.”

Practically speaking, the 8 and 80 Rule enables hospitals and nursing homes to avoid paying overtime when they implement 14-day work schedules wherein employees work a “long” week followed by a “short” week. Such schedules are popular because they enable hospitals and nursing homes to inexpensively cover weekend shifts. For example, many hospital and nursing home employees are assigned recurring schedules in which they work a 6-day, 48 hour week followed by a 4-day, 32 hour week. In the absence of the 8 and 80 Rule, these employees would be entitled to 8 hours of overtime pay during each 6 day, 48 hour week. This translates to approximately 200 hours of overtime pay per year. Under the 8 and 80 Rule, however, such employees receive no overtime pay because, within each 14 day period, the hospital or nursing home is allowed to “average” the long week with the short week.

However, the 8 and 80 Rule may only be utilized by hospitals and nursing homes if they meet certain requirements. The 8 and 80 Rule requires that it be utilized “pursuant to an agreement or understanding arrived at by the employer and employee before performance of the work. 29 U.S.C. § 207 (j). Importantly, “[t]he agreement or understanding between the employer and employee to use the 14-day period for computing overtime must be entered into before the work to which it is intended to apply is performed.” 29 C.F.R. § 778.601(c). Moreover, the agreement or understanding “need not be in writing, but if it is not, a special record concerning it must be kept as required by part 516 of this chapter.” Id. Finally, Part 516 requires “a copy of the agreement or understanding with respect to using the 14-day period for overtime pay computations or, if such agreement or understanding is not in writing, a memorandum summarizing its terms and showing the date it was entered into and how long it remains in effect.” Id. at § 516.23(b).

Many hospitals and nursing homes do not follow or adhere to the technical requirements of the 8 and 80 Rule and do not properly obtain and document the “agreement or understanding” as required by the above federal laws and regulations. If you or someone you know works in a hospital, nursing home or other healthcare facility contact the lawyers at Burke, Harvey & Frankowski, LLC with offices in Birmingham, Alabama who are experienced wage and hour lawyers. We will help to ensure that your rights under the Fair Labor Standards Act are protected and you receive the fair compensation you deserve.

Labels: Fair Labor Standards Act

On February 20, 2008, the Supreme Court decided that the Medical Device Amendments of 1976 (MDA) created a standard of safety oversight for medical devices that supersedes state or common law requirements. The case was Riegel v. Medtronic. In this case, Charles Riegel suffered serious injury when a balloon catheter burst during his angioplasty procedure. As a result of the device's failure, Riegel underwent emergency bypass surgery and was on cardiac life support. The suit filed against Medtronic claims that the device was defective and its labeling inadequate, a suit brought under New York common law.

According to the Court's decision, any medical device that has received approval by the Food and Drug Administration (FDA) cannot be held to any higher standard of strict liability, breach of implied warranty, and negligence relating to its "design, testing, inspection, distribution, labeling, marketing, and sale." The Court decided that the FDA requirements provided for "reasonable assurance of safety and effectiveness" of all medical devices.

Some doubt about the "reasonable assurance" provided by the FDA, is cast by the presence of dangerous and defective devices such as the pain pump and the Kugel Mesh Hernia Repair Patch.

This doubt it reinforced by a recent report from the Health and Human Services' Office of the Inspector General, entitled "The Food and Drug Administration's Oversight of Clinical Trials." This report found that the FDA's effectiveness was limited by a number of factors. First, the FDA lacked the data handling capability to track all the institutional review boards monitoring clinical trials and other key factors in the development and approval of new drugs. Second, the FDA's inspections are haphazard, and included inspections of less than 1 percent of clinical trial sites. Third, the FDA relies on voluntary compliance by pharmaceutical companies to correct regulatory deficiencies located during inspections. Finally, the report noted that FDA guidance and regulations are not consistent with current practices during clinical trials.

Note that the Medtronic ruling only applies to suits involving medical devices. Next term, the court will consider a case involving FDA-approved drugs, such as the Ortho Evra Birth Control Patch.

The Supreme Court ruling does not quite ban defective product lawsuits against manufacturers of medical devices, but it does make these suits more difficult to argue and to win because they have to be argued under federal law only, whereas many cases have been argued under state law in the past.

Because of this restriction, it is even more important that you get a qualified and experienced personal injury lawyer to represent you.

If you or someone you love has been injured by a defective medical device, please contact Burke, Harvey, and Frankowski, LLC today for a free initial consultation.

To read full article, click here.