How reporting on Vexatious Litigation in the media impacts the Legal System

Almost everyday, there is a new article in the news about a scary lawsuit that invokes fear in everyone who reads it. There are certain tactics that reporters and publications use in order to hook their readers into the story and there is no better hook than fear. Fear is a powerful tool to draw in readers and get then addicted to the story. The reader wants to continue reading the story because for the reader, it is like watching train wreck. But this type of reporting can be detrimental to a company before a judgment has even been announced. It can negatively impact the company’s image and their consumer’s trust in that company or their products without any factual evidence.

Vexatious litigation according to Cornell Law School’s website is defined as, “Legal proceedings started with malice and without good case.  Vexatious litigation is meant to bother, embarrass, or cause legal expenses to the defendant.  A plaintiff who starts such litigation either knows or should reasonably know that no legal basis for the lawsuit exists.” These types of lawsuits typically end up causing harm and long-term damage. The lawsuit against the Bair Hugger forced-air warming system is a prime example of Vexatious litigation and how it has been reported has caused further hysteria surrounding the lawsuit.

There are a few big companies right now that are facing lawsuits that so far have created more fear than necessary. There are hundreds of websites that advertise for people looking to sue a company. Attorneys looking to exploit tpeople who believe that they have faced an injustice regardless of whether there is an actual problem are the ones advertising on these websites. One of the best examples of this type of lawsuit is the Bair Hugger Lawsuit. This lawsuit has caused fear and hysteria without any actual evidence to back up the claims made and the basis of this lawsuit originates with an individual who sells a product that is in direct competition with Bair Hugger.

The Bair Hugger forced-air warming system has an extremely long and safe history in operating rooms across the country. The system was invented nearly 40 years ago and currently is used in about 80% of hospitals in the United States. Over 200 million people have used this system with successful results. Both hospitals and specialists have come to the defense of the Bair Hugger and there have been numerous studies that have proven the effectiveness and safety of the system.  So if there are all these glowing reviews and positive studies that prove the safety of the Bair Hugger, why is there a lawsuit?

There are two reasons why this lawsuit has picked up so much steam. The first reason is that the media spread the details about the lawsuit without actually reporting on the additional facts of the lawsuits. The media just reported on the fear factor instead of reporting on the studies done to prove the safety of Bair Hugger. Newspapers were using headlines like, “Lawsuits turn up the heat on 3M’s Bair Hugger warming blankets”, and one headline even refers to a lawsuit as a “David-Goliath situation”. Both of these headlines are misleading and just downright wrong. The typical article about the lawsuit includes all the details that disparage the warming system but none of the information from the studies that prove its safety.

The fear that these type of articles sow in the readers helps to spread the more salacious details about the lawsuits. It is done on purpose to shock readers into following the story. It is the same idea as when there is an accident on the roadway and everyone stops to see the accident, to see if there are any injuries or to check out the damage done. It is human nature to want to see how a tragic scene plays out and these articles are no different. They use the scary details to draw more eyes to the article. This tactic helps to immensely increase the traffic to the site.

The media using the scare tactics to spread fear about the Bair Hugger was the direct result of one particular person. Even though the media is responsible on one level, they were not the ones that started the allegations that the Bair Hugger is problematic. Those allegations actually stem from an individual who was the inventor of the Bair Hair. It would seem that the inventor of the product would know best but the caveat is that the inventor of Bair Hugger was actually trying to get his new product to oust the popularity of the Bair Hugger.

As crazy as it seems, the original inventor of the Bair hugger is the one driving the hysteria behind the lawsuits against the current owner of the Bair Huger, 3M.  In order to understand why there is even a lawsuit to being with, it is important to know the history of the Bair Hugger and its inventor to know why this lawsuit has made it all the way to the media. Scott Augustine was the instigator behind the claims made against the Bair Hugger and the media feel for his story hook, line and sinker. Augustine did everything he could to spread rumors that the Bair Hugger was causing infections because he now was selling a new product and wanted his new product to gain some market traction.

The Bair Hugger was created by Augustine in 1988 and was received very well by hospitals. The Bair Hugger is a forced air warming system that uses a warming blanket to keep a patient warm during surgery. Hypothermia is a very real risk for patients during surgery and the Bair Hugger system was the perfect answer to this decade old problem. Augustine invented the system to help keep a patient’s body warm during surgery.

Hypothermia is very common during the first hour of surgery. The longer a patient stays hypothermic, the more likely it is that they will need a transfusion. It can be a life-threatening situation. Intraoperative core hypothermia can cause coagulopathy, surgical wound infection, and possibly myocardial complications either during or post surgery. These complications were scary until the Bair Hugger was introduced into the operating room.

Originally Augustine marketed and sold the Bair Hugger through his company Augustine Medical. Augustine Medical soon changed its name to Arizant. After the company changed their name to Arizant, the issues with Augustine began.  He left the company after a very long feud with other board members of the company. Arizant was purchased by 3M soon after and the Bair Hugger was then sold under the 3M name. There was a very contentious court battle between Augustine and Arizant that involved a Medicare fraud investigation. Augustine pled guilty to a single misdemeanor charge and he had to pay a $2 million fine. Augustine then turned around and sued Arizant under an indemnification agreement for that $2 million fine and salary. Arizant and Augustine settled but the feud did not die.

The dust settled after the lawsuit but Augustine was working on a second version of the Bair Hugger to sell independently. Once Augustine completed his new version, it should have come as no surprise that suddenly the Bair Hugger was ineffective according to Augustine. He went on a media smear campaign and told anyone that would listen that the Bair Hugger was unsafe. This news shocked 3M because out of all the hospitals that were using Bair Hugger, none of them had reported any issues. Augustine had set up a website with videos that made claims that the airflow circulation in the Bair Hugger caused contamination.

These claims had never actually had any evidence to back them up. Augustine never provided any studies that proved his claims. Arizant then sued his new company for making disparaging claims against the Bair Hugger. An independent anesthesiologist, Dr. Andrea Kurz, who studied Augustine’s new product had some scathing words for Dr. Augustine. She said, “He simply has a new device now and wants to promote it, and when you promote a new device by making something old look bad, it doesn’t work well in our community.”

The rest of the anesthesiologist community got wind of Augustine’s claims. As other people in the community started to speak out against Augustine’s claims, he turned on them. Dr. Augustine went as far to file an ethics complaint against another anesthesiologist, Dr. Daniel Sessler. Dr. Sessler said in an interview that he was approached by Augustine many years ago to be a consultant on his new product. Dr. Sessler asked to be compensated and the two doctors could not reach an agreement. Soon after Dr. Sessler started to get notes saying that he was biased against Dr. Augustine’s new product and then the ethics complaint was filed. The complaint was later determined to be unfounded.

Dr. Augustine has a pattern of filing complaints against people who disagree with him. He also has a history of suing people that have wronged him. Even though he is not the one who filed the lawsuit, he fanned the flames. It is apparent that he has a vendetta against his old company and unfortunately the only thing that he has accomplished is scaring a lot of people that used a Bair Hugger during surgery. Once the media got wind of these claims, they ran with them and soon lawsuits followed.

These lawsuits started with a vendetta. The rumors that Dr. Augustine spread caused mass outrage without even having the proper evidence to justify that outrage. These claims led to a series of vexatious lawsuits that are now currently clogging up the legal system. The amount of time, money and tax dollars that have been spent and will be spent on these lawsuits is staggering. The media is of no help and they only helped to spread the fear and misinformation. These two factors were the main reason why these vexatious lawsuits even came about. It is clear that there were ulterior motives in the origination of these claims and it was no surprise that the fear spread like wildfire.

These types of lawsuits are frivilous. They clog up the legal system and waste the time and energy of the courts. The only reason why these lawsuits even became an issue is because the media learned about Augustine’s accusations and they ran with it. The sowed fear to sell the story and it worked. The far-reaching consequences of this action is that a company and their product has come underfire despite a lack of evidence. People are unnecessarily afraid  before their surgery, fearful that they could face health problems even though the Bair Hugger is designed to specifically help with life threatenting complications.

It is important to remember that when lawsuits are being reported in the media, the information presented in the article should be taken with a grain of salt until a judgement has been passed.  When one comes across an article about a lawsuit, it helps to then research the lawsuit to see If there is any additional evidence to back up the claims made in the lawsuit. Looking at all angles is important so unnecessary fear is stopped in its tracks.

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