A Medical Device Daily

A person awaiting a kidney transplant has filed suit vs. Kaiser Permanente (Oakland, California), charging that Kaiser is responsible for a four-year delay in providing him a kidney transplant and that this delay increases chances of his body rejecting any kidney once he receives one.

The suit adds to class actions filed against Kaiser's transplant program in the wake of a report by the Center for Medicare & Medicaid Services (CMS; Baltimore), alleging the program's failure to meet quality standards (Medical Device Daily, June 16, 2006).

In November 2004, Bernard Burks was notified that he was being transferred from the transplant program of University of California-Davis to Kaiser's newly established kidney transplant program. “For Burks, that meant being transferred to yet another long list of ailing patients awaiting transplants in what seemed to be a never-ending line to nowhere,” according to a statement by his attorney, Michael Bidart, of Shernoff Bidart & Darras (Claremont, California). “This case fits the mold for a huge punitive damage award because so much harm has been done to all these patients waiting for life-saving treatment.”

Burks is seeking punitive damages against Kaiser, for what Bidart describes as “egregious corporate policies and practices which caused harm not only to him personally, but to hundreds of other Kaiser patients.”

In other legalities: Continuing an ongoing battle, Align Technology (Santa Clara, California), developer of a method of straightening teeth without wires and brackets, reported filing a new lawsuit in U.S. District Court against competitor OrthoClear and OrthoClear Holdings (both San Francisco), for false advertising, trade libel, defamation and unfair competition. The complaint alleges that OrthoClear has made “comparative claims of product superiority that are false and unsubstantiated . . . designed to mislead dental professionals and consumers.”

Align said the complaint includes evidence that OrthoClear “deliberately deceived and confused customers and unfairly competed with Align in violation of California and federal law by making repeated false and unsupported claims regarding OrthoClear's products and Align's Invisalign system.”

Align said that last year it attempted to address concerns regarding OrthoClear's advertising claims without resorting to litigation and filed a challenge to that company's advertising claims with the National Advertising Division (NAD) of the Council of Better Business Bureaus. It said that OrthoClear refused to participate in an NAD review or to provide evidence to support its advertising claims, so NAD referred OrthoClear to the FTC for further action.

Align said that as a result it filed a request to amend its existing multi-claim lawsuit against OrthoClear to include additional causes of action. Rather than delay the trial schedule in that case, the court, it said, denied the request to amend, advising Align to file a new, separate complaint against OrthoClear.