6.10.2016

$16.7M Judgment in Misdiagnosed Lung Cancer Death Case Upheld on Appeal

The Massachusetts Appeals Court has upheld a $16.7M judgment from June, 2014, in a wrongful death medical malpractice lawsuit involving misdiagnosed lung cancer. The lawsuit was brought by the daughter of a 47-year-old woman who died from a 13-month delay in diagnosis of lung cancer at Brigham and Women's Hospital, where a radiologist failed to identify and report a 1-1.5cm nodular density in the upper part of the right lung.

Attorneys Robert Higgins and Barrie Duchesneau represented the plaintiff at trial. After 3 hours of deliberations, the jury returned a verdict against the radiologist for negligence in care and treatment for $11,000,000. The jury awarded $1,000,000 for conscious pain and suffering, $3,000,000 for the plaintiff’s loss of consortium up to the time of the verdict and $7,000,000 for the plaintiff’s loss of consortium into the future. The total judgment was $16,764,603 after the addition of pre-verdict statutory interest.
View our main website at LubinandMeyer.com - Lubin & Meyer PC - New England's Leader in Medical Malpractice and Personal Injury Law

4.27.2016

Lubin & Meyer Lawsuit Leads to FDA Ban of Electronic Shock Devices for Use on Autistic Children

When the U.S. Food and Drug Administration (FDA) announced last week a proposal to ban electrical stimulation devices (ESDs), it was a long awaited final chapter in a lawsuit brought by Lubin & Meyer on behalf of Cheryl McCollins whose son Andre had been severely injured due to repeated electrical shock treatments while a student at the Judge Rotenberg Center.

"Many children and families have long awaited this historic news," said Benjamin Novotny, who represented McCollins at trial. "It is encouraging that the FDA is following the United Nations' footsteps and labeling this practice for what it is, torture."

The disturbing video evidence presented at trial, helped to reach a settlement, mount public outrage and move an FDA panel to hold a hearing to consider banning the practice of aversive electronic shock treatments. That hearing led to a recommendation to ban the practice, and now — two years later — the FDA has issued a proposal to ban the devices.
"The FDA takes the act of banning a device only on rare occasions when it is necessary to protect public health. ESDs administer electrical shocks through electrodes attached to the skin of individuals to attempt to condition them to stop engaging in self-injurious or aggressive behavior. Evidence indicates a number of significant psychological and physical risks are associated with the use of these devices, including depression, anxiety, worsening of self-injury behaviors and symptoms of posttraumatic stress disorder, pain, burns, tissue damage and errant shocks from a device malfunction.
In addition, many people who are exposed to these devices have intellectual or developmental disabilities that make it difficult to communicate their pain or consent. As these risks cannot be eliminated through new or updated labeling, banning the product is necessary to protect public health."
The proposed rule is available online at www.regulations.gov for public comment for 30 days.

See our previous posts on this subject:



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4.14.2016

Concurrent Surgeries at MGH Spur Federal Investigations

Lubin & Meyer lawsuits are at the center of widening probe into double-booking surgeries


Recent investigative reporting by the award-winning Boston Globe Spotlight Team on "Concurrent Surgeries" at Mass General Hospital and lawsuits filed by Lubin & Meyer on behalf of patients there, continue to have a ripple effect — and have resulted in federal inquiries into the practice of double-booking surgeries without a patient's knowledge.

See these articles as federal scrunity of the practice unfolds.
See our prior post on this topic:
Concurrent Surgeries in the Spotlight: Is it Safe To Run Two Operations at Once?

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3.17.2016

6 Ways To Be A Safe Patient

In recognition of Patient Safety Awareness Week, we would like to share this infographic from the CDC on what patients can do to help prevent healthcare-associated infections (HAIs) in the hospital setting. We've reported on HAIs before, see our post: Tracking Infection Control in U.S. Hospitals.

According to the CDC,
On any given day, approximately one in 25 U.S. patients contract at least one infection during the course of their hospital care.
Be an informed and empowered patient and play an active role in your care including questioning your healthcare team about infection control.

You can download this infographic from the CDC.



6 Ways To Be A Safe Patient  


1. Speak Up. Talk to your doctor about infection and what they are doing to protect you.

  • If you have a catheter, ask each day if it is necessary. 
  • Ask your doctor how he/she prevents surgical site infections
2. Wash Hands. Make sure everyone cleans their hands before touching you.

3. Monitor Antibiotics. Ask if a test will be done to make sure the right antibiotic is prescribed.

4. Watch for Infection. Some skin infections, such as MRSA, appear as redness, pain, or drainage at an IV catheter site or surgery site. Sometimes these symptoms come with a fever. Tell your doctor if you have these symptoms.

5. Monitor Diarrhea. Tell your doctor if you have 3 or more diarrhea episodes in 24 hours.

6. Vaccinate. Get vaccinated against flu and other infections to avoid complications.

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Lubin & Meyer PC - New England's Leader in Medical Malpractice and Personal Injury Law
Attorneys practicing in Massachusetts, New Hampshire and Rhode Island

1.15.2016

Massachusetts State Medical Board Takes Action on Simultaneous Surgeries

Following a Spotlight report by the Boston Globe and lawsuits filed by Lubin & Meyer regarding "concurrent surgeries," the Massachusetts Board of Registration in Medicine approved new regulations requiring surgeons to document each time they enter and leave an operating room.

A January 7, 2016 article in the Boston Globe details,
"The board also approved a requirement that the primary surgeon identify the backup doctor who would assume responsibility if the first surgeon is going to leave the operating room. The new rules, among a series of regulation revisions that the board passed by a vote of 5 to 1 late Thursday, need the approval of several state agencies by the end of March before they can go into effect."
 — See full article: State acts on simultaneous surgeries
A letter to the editor by Nancy G. Brinker, board member and founder of Susan G. Komen for the Cure, supports regulation of the practice of simultaneous surgeries and asks the medical community to decide if it is in the best interest of patient safety. (See below.)
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12.14.2015

The Problem with Problem Lists: How Medical Records Policy Can Backfire

Largest Medical Malpractice Verdict of the Year Hinges on "Problem List"


When a 28-year-old woman suffered a severe stroke after giving birth to her first born child, it was an unexpected outcome given that the woman's life-threatening and previously diagnosed brain abnormality was not properly entered into her medical record. The ensuing medical malpractice case of Larkin v. Johnston (tried by Lubin & Meyer's Benjamin Novotny) returned a verdict of $35.4 million. The landmark case illuminates the topic of "problem lists." In the October issue of Healthcare Risk Management, the article Problem Lists Can Threaten Safety, Pose Liability Risks digs into problem lists as illustrated by the Larkin case — one of the largest medical malpractice verdicts of the year.*

According to the article,
"Many hospitals use problem lists as a way to catalog all health issues affecting a patient, or at least those that are particularly noteworthy for other physicians. A recent study and malpractice case, however, highlight the risk posed by having a policy on problem lists and not following it."
One recent study published in the October 2015 issue of International Journal of Medical Informatics found the levels of completeness of problem lists varied from 60% to 99% across 10 facilities in the study group, with an average of 78%. (See more on the study here.)

According to Attorney Novotny the health system’s problem list backfired...
"The existence of the problem list encouraged clinicians to depend on it for important alerts about a patient’s conditions, he says, which in turn made them lax about digging through the entire patient record in search of important information. When key findings were left off the problem list, the policy ended up causing the very thing it was meant to prevent."
Said Novotny, “They actually had a policy that was right on point for trying to prevent this kind of disaster, and they didn’t follow it. That will always come back and hurt you in court if you have a policy and procedure and don’t follow it.”

For more coverage of this case, see the Channel 5 news story below.



* The National Law Journal Verdict Search database from July 1, 2014 through June 30, 2015 ranks the Larkin v. Johnston verdict as the 20th largest verdict in the nation, and #1 in Massachusetts.

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11.16.2015

Concurrent Surgeries in the Spotlight: Is it Safe To Run Two Operations at Once?

The Boston Globe Spotlight Team has exposed a practice at Massachusetts General Hospital of some leading orthopedic surgeons double-booking operating rooms in order to run "concurrent surgeries" — that is, having two patients in two operating rooms at once.
At the center of the issue is transparency — whether patients are clearly notified that their surgeon may not be present for the entire surgery — and, of course, the impact on patient safety. MGH claims the practice has not caused any patient harm...
"Still, the Spotlight Team found that the 2012 Meng case [represented by Lubin & Meyer] reignited an extraordinary, long-running controversy at one of the nation’s top-rated hospitals over the propriety and safety of a fairly common but little studied practice that goes to the heart of a doctor’s obligation to his unconscious patient. Is it right, some MGH medical staff asked, for surgeons to divide their attention between two operating rooms — especially when the patients don’t know? Can they really do two overlapping operations equally well?"
Link to the in-depth Boston Globe investigative team report and multimedia presentation at: Clash in the Name of Care.

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Attorneys practicing in MA, NH and RI

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10.12.2015

Diagnostic Errors and How To Avoid Them — A Critical Checklist for Patients

We have reported repeatedly on studies related to medical errors and infections that happen in hospitals. However, diagnostic errors (which often happen outside of the hospital in a doctor's office) have escaped the kind of tracking that other medical harms receive. Research from Johns Hopkins School of Medicine, shows that "diagnostic errors — not surgical mistakes or medication overdoses — accounted for the largest fraction of claims, the most severe patient harm, and the highest total of penalty payouts." According to a press release announcing the study, "diagnostic errors could easily be the biggest patient safety and medical malpractice problem in the United States."

What is a diagnostic error?


A diagnostic error can be defined as a diagnosis that is missed, wrong or delayed, as detected by a subsequent definitive test or finding. The ensuing harm results from the delay or failure to treat a condition present when the working diagnosis was wrong or unknown, or from treatment provided for a condition not actually present.

“Overall, diagnostic errors have been under appreciated and under-recognized because they’re difficult to measure and keep track of owing to the frequent gap between the time the error occurs and when it’s detected,” said the study leader David Newman-Toker. “These are frequent problems that have played second fiddle to medical and surgical errors, which are evident more immediately.”

How can patients help to ensure they receive the right diagnosis?


The National Patient Safety Foundation has created a Checklist for Getting the Right Diagnosis with some tips for patients.



This 8-point checklist can be printed and taken with you when you meet with your doctor.

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9.26.2015

Cauda Equina: A Dangerous Outcome When Patient Complaints Are Not Taken Seriously

Lubin & Meyer settled a NH medical malpractice lawsuit this month involving a 50-year-old woman who now suffers from significant weakness of her legs and bowel and bladder incontinence due to a delay in the diagnosis and treatment of cauda equina syndrome.


Attorney Benjamin Novotny who represented the claimant in this lawsuit said that cauda equina syndrome is often misdiagnosed as simple back pain. "It is a big patient safety concern that only arises because health care providers often do not take patient complaints as seriously as they should."

What is cauda equina syndrome?


Cauda equina syndrome is a serious medical emergency involving extreme pressure and swelling of the nerves at the end of the spinal cord. If patients with cauda equina syndrome do not get appropriate treatment, adverse results can include:
  • permanent paralysis
  • impaired bladder and/or bowel control
  • difficulty walking
  • other neurological and physical problems.
"Hospitals and care providers must accurately and timely diagnose this condition before the nerves become permanently injured," said Novotny. In this case, the patient's primary care doctor dismissed her complaints as lumbar disc disease and sciatica without requesting a consultation or imaging study and despite repeated complaints of pain, muscle spasms, weakness in the legs with numbness and tingling. She was eventually diagnosed with cauda equina 11 days later, after a visit to St. Joseph's Hospital and a transfer to Lahey Clinic.

Read the full trial report here: Delay in Diagnosis of Cauda Equina.

Lubin & Meyer has extensive experience successfully pursuing claims involving cauda equina syndrome, including but not limited to:
View our main website at LubinandMeyer.com
Lubin & Meyer PC - New England's Leader in Medical Malpractice and Personal Injury Law. Attorneys practicing in MA, NH and RI.  

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8.21.2015

29 Mistakes That Should Never Happen In A Hospital, But Do

Massachusetts is well known as home to some of the world's most prestigious hospitals, including Mass. General Hospital recently named the "Top Hospital in the Nation" by U.S. News & World Report and Best Hospitals.® However, even here in Massachusetts, serious medical mistakes continue to happen to far too many patients.

As a follow up to last week's post on Massachusetts Hospital Errors, we dug deeper into the data that hospitals and surgery centers are required to report to the Department of Public Health on "Serious Reportable Events." There are 29 such events, also known in hospitals as "never events," and we list them here with the total instances reported by the state's acute care hospitals, non-acute care hospitals and ambulatory surgery centers combined (for 2014).

Some of the most common of the 29 "Serious Reportable Events" reported by
Massachusetts Hospitals in 2014. See detail highlighted in red below.

Massachusetts Serious Reportable Events

Surgery Events
1. Wrong body part, side or site surgery of procedure = 30
2. Wrong patient surgery or procedure = 0
3. Wrong surgery or procedure performed = 11
4. Foreign object left in patient after procedure unknowingly = 41
5. Death of ASA Class I patient during surgery or within 24 hours = 1

Product Events
6. Contaminated drugs, device or biologics = 37
7. Device misuse or malfunction = 15
8. Intravascular air embolism = 6

Patient Protection
9. Patient discharged to unauthorized person = 2
10. Serious injury or death during patient disappearance = 0
11. Suicide or self-harm = 57

Care Management Events
12. Serious injury or death from medication error = 37
13. Unsafe blood transfusion = 0
14. Maternal serious injury or death associated with labor or delivery = 6
15. Newborn serious injury or death associated with delivery = 27
16. Serious injury or death after a fall = 416
17. Stage 3, Stage 4 or unstageable pressure ulcer = 294
18. Artificial insemination with wrong egg or sperm = 0
19. Serious injury or death from loss of irreplaceable biological specimen = 2
20. Serious injury or death from lack of follow up or communication of lab result = 5

Environmental Events
21. Serious injury or death from electric shock = 0
22. Oxygen or gas delivery error = 0
23. Serious injury or death from burn = 32
24. Serious injury or death from physical restraints = 6

Radiology
25. Serious injury or death from metallic object in MRI  = 1

Potential Criminal Events
26. Impersonation of a health care provider = 0
27. Abduction of patient = 0
28. Sexual abuse or assault of patient or staff member = 7
29. Serious injury or death after physicial assault of patient or staff = 32

The Massachusetts Health and Human Services website makes the total number of "Serious Reportable Events" (SREs) by hospital available to the public. Hospitals and ambulatory surgery centers are required by law to report SREs to the Massachusetts DPH. The law also prohibits hospitals from charging for these events or seeking reimbursement for SRE-related services. 

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8.04.2015

Massachusetts Hospital Errors — Amount of Preventable Medical Mistakes Is Staggering

The Boston Globe reported last month on a Department of Public Health (DPH) annual study showing that full-service hospitals in the state reported "821 preventable errors that harmed or endangered patients last year." Some of the top hospital errors reported were:
  • Surgical objects left behind (41)
  • Operation on wrong body part (24)
  • Serious injury or death after a fall (290).
Our own Andrew C. Meyer, Jr. was quoted in the article,
“It’s extraordinary the amount of medical errors and deaths that occur on a yearly basis. Medical error is becoming one of the leading causes of death in Massachusetts.”
     
— Andrew Meyer, Attorney
Whether these instances are increasing or decreasing is open for debate, according to the article, Mass. hospitals continue to make preventable mistakes, as definitions for the reporting of serious events has recently changed, and not all errors may be reported.

How Do Massachusetts Hospitals Compare? 

The Massachusetts Health and Human Services website makes the total number of "Serious Reportable Events" (SREs) by hospital available to the public. Hospitals and ambulatory surgery centers are required to report SREs to the Massachusetts DPH. The law also prohibits hospitals from charging for these events or seeking reimbursement for SRE-related services. Click here to view: Massachusetts Hospital Error Data.

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Lubin & Meyer PC - New England's Leader in Medical Malpractice and Personal Injury Law. Attorneys practicing in MA, NH and RI.

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5.13.2015

Safeguarding A Patient's Right To Secure and Reliable Medicine

Lubin & Meyer partner Robert M. Higgins is featured on the cover of New England's Best Lawyers published May 1st in The Boston Globe. Higgins, who was previously named Boston's 2015 Lawyer of the Year for Medical Malpractice Law (by Best Lawyers®), is also included in a cover story where he describes his firm's leadership in pursuing the rights of patients and promoting change for safer healthcare practices.
“The fact is, medical mistakes are endemic to our health care system. They are one of the leading causes of death in this country, and as a firm, it is not only our mission to achieve maximum compensation for our clients, but also to ensure patient safety for the general public.”
— Robert M. Higgins


In the article founding partner Andrew C. Meyer, Jr., also a Best Lawyers®  Lawyer of the Year for Medical Malpractice in 2011, comments on Higgins:
“Robert has earned such a high level of respect among other leading lawyers in this field because of his consummate professionalism, integrity, and abilities. The tenacity he brings to his cases and his unparalleled track record serve as benchmarks for all the attorneys at our firm.”
Higgins and Meyer, along with their colleagues at the firm are known as relentless advocates for the rights of injured patients — always pushing for a better standard of care, exposing substandard treatment at many institutions and, ultimately helping to create safer hospital environments.

See the full article here: Robert Higgins.

View our main website at LubinandMeyer.com - Lubin & Meyer PC - New England's Leader in Medical Malpractice and Personal Injury Law

Attorneys practicing in Massachusetts, New Hampshire and Rhode Island.

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4.14.2015

Massachusetts Court: Hospital Can Be Sued for Doctor Working as Independent Contractor under "Apparent Authority" Theory

A recent Massachusetts Superior Court ruling cleared the way for a medical malpractice case to go forward that claims to hold a hospital liable for negligence of a non-employee anesthesiologist working as an independent contractor.

According to plaintiff’s attorney, William J. Thompson of Lubin & Meyer, the decision recognizes that hospitals cannot escape responsibility for the conduct of doctors practicing in their facilities. Said Thompson in the Mass. Lawyers Weekly article:
“When a hospital allows doctors to provide patient care within the physical hospital building, and patients reasonably believe these doctors are associated with and sanctioned by the hospital, it is only fair that the hospital bears responsibility for harm caused by those doctors.”
— William J. Thompson

Specifics of the case Beauregard v. Peebles, et al., involve the hospital's chief of anesthesia — an independent contractor — who met with the plaintiff wearing a lab coat showing the hospital name and logo, and was not defined as a non-employee of the hospital in pre-surgery documents.

As reported by Mass. Lawyers Weekly, the Judge Kenneth Salinger concluded:
“[I]t appears that neither the [Supreme Judicial Court] nor the Massachusetts Appeals Court has yet decided whether a hospital that imbues a physician with apparent authority to act as its agent can be held liable for the doctor’s negligence in the absence of an employment relationship or any right to control the doctor’s daily activities,” Salinger wrote in denying the hospital’s motion for summary judgment. “The court concludes, however, that general principles of Massachusetts common law permit [the plaintiff] to sue the hospital under a theory that it is vicariously liable for torts committed by its apparent agents acting within the scope of their apparent authority.”
The malpractice lawsuit can now proceed which claims negligence by the anesthesiologist regarding general anesthesia and a spinal epidural that left the plaintiff paralyzed. For more information, see the Lawyers Weekly article.

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3.05.2015

FDA Updates Safety Communication Regarding Duodenoscopes

The FDA has issued an updated Safety Communication on the cleaning of medical scopes believed to have caused the spread of a deadly "superbug" at UCLA Medical Center. The Safety Communication, Design of Endoscopic Retrograde Cholangiopancreatography (ERCP) Duodenoscopes May Impede Effective Cleaning, was issued February 19, 2015, and has been updated twice since then.

The purpose of the communication is to "raise awareness among health care professionals, including those working in reprocessing units in health care facilities, that the complex design of ERCP endoscopes (also called duodenoscopes) may impede effective reprocessing. Reprocessing is a detailed, multistep process to clean and disinfect or sterilize reusable devices."

The FDA Safety Communication on Duodenoscopes reads in part:
"Duodenoscopes are flexible, lighted tubes that are threaded through the mouth, throat, stomach, and into the top of the small intestine (the duodenum). They contain a hollow channel that allows the injection of contrast dye or the insertion of other instruments to obtain tissue samples for biopsy or treat certain abnormalities. Unlike most other  endoscopes, duodenoscopes also have a movable “elevator” mechanism at the tip. The elevator mechanism changes the angle of the accessory exiting the accessory channel, which allows the instrument to access the ducts to treat problems with fluid drainage.

Although the complex design of duodenoscopes improves the efficiency and effectiveness of ERCP, it causes challenges for cleaning and high-level disinfection. Some parts of the scopes may be extremely difficult to access and effective cleaning of all areas of the duodenoscope may not be possible."
Recommendations for patients include:
  • Discuss the benefits and risks of procedures using duodenoscopes with your physician. For most patients, the benefits of ERCP outweigh the risks of infection. ERCP often treats life-threatening conditions that can lead to serious health consequences if not addressed.
  • Ask your doctor what to expect following the procedure and when to seek medical attention. Following ERCP, many patients may experience mild symptoms such as a sore throat or mild abdominal discomfort. Call your doctor if, following your procedure, you have a fever or chills, or other symptoms that may be a sign of a more serious problem (such as chest pain, severe abdominal pain, trouble swallowing or breathing, nausea and vomiting, or black or tarry stools).
Read the full safety communication on the FDA website.

For more reporting on the topic, see the LA Times and Washington Post.

View our main website at LubinandMeyer.com
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2.11.2015

Tracking Infection Control in U.S. Hospitals

The CDC’s Healthcare-Associated Infections (HAI) progress report reveals that while efforts to eliminate infections that commonly threaten hospital patients have shown improvements, more work is needed on infection control.

On any given day, approximately one in 25 U.S. patients contracts at least one infection during the course of their hospital care, demonstrating the critical need for improved infection control in U.S. healthcare facilities.

Tracking National Progress

On the national level, the report found a:
  •  46 percent decrease in central line-associated bloodstream infections (CLABSI) between 2008 and 2013. A central line-associated bloodstream infection occurs when a tube is placed in a large vein and either not put in correctly or not kept clean, becoming a highway for germs to enter the body and cause deadly infections in the blood.
  • 19 percent decrease in surgical site infections (SSI) related to the 10 select procedures tracked in the report between 2008 and 2013. When germs get into the surgical wound, patients can get a surgical site infection involving the skin, organs, or implanted material.
  • 6 percent increase in catheter-associated urinary tract infections (CAUTI) since 2009; although initial data from 2014 seem to indicate that these infections have started to decrease. When a urinary catheter is either not put in correctly, not kept clean, or left in a patient for too long, germs can travel through the catheter and infect the bladder and kidneys.
  • 8 percent decrease in MRSA bloodstream infections between 2011 and 2013.
Research shows that when healthcare facilities, care teams, and individual doctors and nurses, are aware of infection control problems and take specific steps to prevent them, rates of targeted HAIs can decrease dramatically.

Massachusetts Hospital Acquired Infection Data

View Massachusetts fact sheet full size


Data from Massachusetts hospitals showed areas of concern in Catheter associated urinary tract infections and surgical site infections related to colon surgery.

To view the Massachusetts Progress Report data in detail, download the Massachusetts Fact Sheet.

See also:

HAIs and prevention activities in Massachusetts

Massachusetts validation efforts

Click here for New Hampshire HAI Data

Click here for Rhode Island HAI Data

The HAI Progress Report was published in January 2015 using 2013 data by the Centers for Disease Control.

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