Alabama Litigation Review : North Alabama Personal Injury Lawyer & Attorney : Jeff Blackwell : Hornsby, Watson, Hornsby, Blackwell & McKown Law Firm : Commercial Litigation, Workers' Compensation : Huntsville, Decatur, Athens

Arthroscopic surgery to treat or repair a variety of conditions in injured joints has become routine.  In our law practice, we frequently have clients who have undergone these procedures to joints such as the knee, shoulder, or hip.  Arthroscopic surgery has several potential advantages over open surgical procedures.  It is minimally invasive.  It typically involves little or no hospital stay.  It often allows a quicker recovery time.  Although typically less painful than open surgery, some patients do suffer significant pain.

Along with the advances in surgical procedures, the medical community has created many options to treat pain.  One of these modern options is the pain pump.  What is a post-surgical pain pump?  It is a device that can be implanted during surgery to deliver pain-relieving medication via a catheter to the surgical site.  The pump is typically used for short-term pain relief in the days immediately following surgery.  It is then removed and discarded.

How are the pumps implanted in a shoulder surgery?  They can easily be placed by the anesthesiologist so that they deliver pain relieving medication at the site of the anesthetic block in the tissue around the shoulder.  When used properly, pain pumps appear to be an effective and convenient alternative for temporary pain relief in the days immediately following the shoulder surgery.  So, what is the problem?  Apparently, the pump manufacturers sought approval from the FDA to implant the devices not just in the soft tissue of the shoulder, but instead, to allow implantation that would deliver medication via catheter directly into the shoulder joint itself.  The FDA said no.  According to information now being revealed, it appears the FDA said no on more than one occasion.

Instead of informing surgeons that the FDA had rejected intra-articular use of their pain pumps, the manufacturers acted in an opposite manner.  According to a recent publication by the American Academy of Orthopedic Surgeons:

sales representatives either directly told surgeons to use the pump intra-articularly or simply left it up to the doctor to figure out what "intra-operative site," as listed in the general Instructions for Use for the pain pumps, meant.

As surgeons began placing the pumps intra-articularly, patients began developing a disabling condition called post-arthroscopic glenohumeral chondrolysis (PAGCL).  Basically, this is a devastating condition where the cartilage in the shoulder joint is badly damaged or destroyed.

Recently, the FDA took the additional step of issuing a specific warning that these devices should not be used as previously marketed for placement intra-articularly.  The FDA also required the device manufacturers to update their product labels to reflect this serious warning.  According to an FDA study, almost all reported cases of chondrolysis (97%) occurred after these shoulder procedures.  Thankfully, the FDA has begun to warn the physicians and public about this dangerous use of pain pumps.  Unfortunately, it is too late for some patients.  The damages caused by the previously defective warning and subsequent mis-use of this product have resulted in several claims against the manufacturers.  This is a story of companies placing sales over safety.  I suspect much more information about this practice will come to light in the near future.

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In December, nine Alabama cities filed suit against several internet travel companies.  These nine cities include Birmingham, Huntsville, and Decatur.  The defendants include such well known internet travel companies as Orbitz, Expedia, Priceline, and Travelocity.

This case is certainly one to watch as it progresses.  At issue is the money collected by these internet firms from consumers as a "tax" when hotel rooms are booked.  These Alabama cities assert that the internet companies failed to pay proper hotel lodging taxes.  According to an article in The Montgomery Advertiser which mentions the lawsuit, it is estimated that Birmingham, alone, could realize an additional $5 million if its claim is correct.

What is the tax issue here?  As any hotel guest realizes when they get their final bill, most cities impose significant lodging taxes.  How do these Alabama cities claim such large and well-known travel companies have short-changed them on lodging taxes?  Basically, the allegation is that these internet companies rent large blocks of rooms at discount "wholesale" rates.  The internet companies then rent the rooms to individual customers at a higher "retail" rate.  That is how they realize a profit.  I see nothing wrong with providing a valuable service for a legitimate profit. 

The problem, if the allegations are true, is that the internet companies collect the lodging tax from each customer based on the actual "retail" room rental rate.  They actually charge and collect an amount listed as "tax" from each consumer.  Yet, they only pay actual lodging taxes on the lower "wholesale" rate and pocket the difference.  It is easy to see how these cities could gain substantial revenue if the defendants paid their lodging taxes based on the actual room rental cost of each guest.  Again, this will be an interesting case to watch as it progresses.  Here's an additional point to consider:  If the travel companies are ultimately successful in this lawsuit and only owe the smaller amount in taxes, does it then raise the issue as to whether they collected additional money from consumers based on the misrepresentation that is was all a "tax" charge?

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