Med Mal News
October 28, 2010
Recent news events for your review.
The Effect of Utility Patents on Trade Dress Protection Claims
October 28, 2010
The Seventh Circuit's recent decision in <i>Specialized Seating v. Greenwich Industries, L.P.</i>, highlights several important considerations that are often overlooked by counsel representing clients who claim trade dress rights in product designs. Paramount among those considerations is the effect that claims in a utility patent can have on the availability of trade dress protection.
Avoiding Physician Liability for Off-Label Use of Drugs and Devices
October 28, 2010
The increased level of enforcement activity by the FDA has focused the attention of consumers and the plaintiffs' bar on the increased frequency with which physicians prescribe FDA-approved drugs and medical devices for unapproved uses. Plaintiffs' attorneys increasingly choose to name prescribing physicians in their products liability suits as co-defendants, pleading both medical malpractice and other associated tort claims against these physicians, and often premising such claims upon the decision to prescribe for a so-called "off-label" or unapproved use. Thus, the continuing expansion of off-label uses of drugs and devices has led to numerous potential legal minefields for the prescribing physicians.
New Standard Used To Cap Damages at State Court Levels
October 28, 2010
A high-profile wrongful death case was recently decided for the second time in favor of a Miami couple whose child suffered severe brain damage during his birth at the U.S. Naval Hospital in Jacksonville, FL.
Pending Decision May Influence Measure of Medical Damages
October 28, 2010
Measuring the extent of medical damages, for a medical malpractice claim as for any other type of negligence claim, is an important part of any case. Normally, when a defendant causes harm that sends a plaintiff to a hospital or doctor, three different measures may be relevant to determining the defendant's liability ' the amount the plaintiff herself has paid for medical care, the amount the plaintiff's health insurance has paid on her behalf, and the amount a health care provider has billed as its "usual and customary" charge.
Therasense and the Doctrine of Inequitable Conduct
October 28, 2010
Perhaps signaling an interest in revisiting the doctrine in its entirety, in April 2010, the Federal Circuit asked for briefing on six questions regarding the defense of inequitable conduct to patent infringement.
Authors, Agents and Publishers Seek to Carve Out Their Rights in Electronic-Book Formats
October 27, 2010
The rapid growth in e-book sales and the increasing number of options available to authors for digital distribution of their works are altering the traditional business model of print publishers. The size of the authors' shares and traditional publishers' shares (if any) of e-book sales revenues may depend on where the Digital Distributors obtain their rights to sell e-books: from traditional print publishers, which of necessity are becoming increasingly focused on e-book sales, from new publishers specializing in e-books, or even from the authors themselves.
e-Commerce Retailing Continues Its Quarterly Return
October 27, 2010
e-Commerce spending in the second quarter was up an estimated full $1 billion from the first quarter, or $39.7 billion, the Census Bureau notes in preliminary figures ' a 2.6% rise for April through June, a gain of 1.5% from the first quarter and a healthy increase of 14% from the second quarter of last year.
Lessons from Twitter's Settlement with the FTC
October 27, 2010
The recent announcement that social-networking phenomenon Twitter has agreed to settle FTC charges that Twitter engaged in inadequate privacy and information-security practices illustrates some simple mistakes social media and other online companies can make.
When the Virtual Storefront Is the Home Front
October 27, 2010
One of the virtues of e-commerce has always been its low barrier to entry. For little investment of time or money, anyone can set up shop online, whether selling advice or widgets. But can something so easily accomplished really be a business? Will an entrepreneur run something out of her spare bedroom the same way as if she had venture capitalists peering over her shoulders, demanding a business plan, financial statements, budgets, marketing plans and everything that a bricks-and-mortar retailer has (except the expense of leasing space)? If not, she may treat it as just another hobby, something to handle in her free time.
