ThePopTort

The Toyota Prosecutions Start

Today, the Orange County, California District Attorney filed the first state (or federal) case against Toyota, this one against its U.S. sales division, Toyota Motor Sales USA -- "to enjoin them from continuing to endanger the public through the sale of defective vehicles and deceptive business practices." According to Reuters,  “Toyota also faces a probe by the Securities and Exchange Commission and a criminal investigation by federal prosecutors.  Separately on Friday, Connecticut Attorney General Richard Blumenthal said he was pushing Toyota to investigate a pair of accidents involving Camrys in the state in the past week.”

Clearly, the legal troubles for Toyota are mounting.  This week the Associated Press reviewed the current class action cases filed against the company and found at least 89 claiming lost value — at least 6 million people—which they say could cost $3 billion or more.  These cases do not include wrongful death and personal injury lawsuits.

Our friend Tom Baker at the University of Pennsylvania law school said that these class action lawsuits "are more scary for Toyota than the cases where people actually got injured. … You could have millions of individual car owners who could (each) be owed $1,000.  If I were Toyota, I'd be more worried about those cases."

Another indication of how widespread this problem is, the federal judge assigned to many of these class actions owns a Toyota himself, and may even be included in the class actions.  We love how he put it: "The court owns a 2000 Toyota Avalon SLX. In addition, the adult son of the court who has not lived in the court's home for many years owns a 2005 Prius."

Whether you're a judge, or the adult son of the court who has not lived in the court's home for many years, or just an average motorist who might either own a Toyota or be driving in front of one on the New Jersey Turnpike this weekend, it’s important to keep up with the latest Toyota news, and we recommend that you follow the work of these two amazing groups: Center for Auto Safety and Safety Research and Strategies.

Huff Post Repost: Time to Reform that Other Insurance Industry

We all depend on reasonably-priced insurance to function and I'm not talking just about heath insurance. Without affordable property-casualty insurance, we couldn't drive cars or own homes, doctors wouldn't be able to practice medicine, small businesses like day care centers wouldn't exist and local governments couldn't function. Having insurance is not an option. For better or worse, the property-casualty insurance industry is a critical sector of the U.S. economy.

It's also one of the least regulated, and most influential, profitable and unaccountable industries in the nation, answering to no federal agency and regulated by a nation of mostly weak state agencies. It is exempt from federal anti-trust laws. Most state insurance departments have little ability to control insurance rates. With few exceptions, these departments have neither the funding nor political will to exercise proper control over this industry, save its main regulatory job - to prevent a company's insolvency. Policyholders have very little protection otherwise. The result is an industry that can make extraordinary claims and demands on lawmakers that go nearly unchallenged.

Indeed, it is an industry capable of threatening major damage to a state's economy. It usually gets what it wants.

Keep reading.

Whistles, Pipes and Modern Day Robber Barons

Bob Herbert has a New York Times column today about the sorry state of this country’s infrastructure, a problem that hopefully the President is more willing to tackle especially because of the jobs it could generate.  Herbert tells an interesting story about the pipes under Philadelphia, when (according to then Mayor Ed Rendell), “58 of our water mains broke, causing all sorts of havoc … The pipes were old. Some were ancient ... and they were laid shallow, without much protection.  So with any radical changes in temperature, they were susceptible to breaking.  We had a real emergency on our hands.”

In fact, some of those pipes were laid back in the 19^th century - robber barons days.  So it's kind of incredible that they lasted so long.  I guess even the greedy industrialists back in the day didn’t have the gall to do what apparently the company JM Eagle has been doing to cites and water districts since 1996.  According to the company’s former employee, John Hendrix, the company has been:

falsifying test results about the quality of its products. Pipes that should last 50 years are in some cases rupturing in their very first year, according to Mr. Hendrix and some state documents. This can lead to explosions, leaks, fires and other dangers.

[Hendrix said] JM Eagle had been selling substandard plastic pipe since 1996, and that it had subsequently manipulated test results. “It became apparent to me that this was being done intentionally,” he said in an interview [with the New York Times].

Nevada, Virginia, Delaware, Tennessee and more than 40 water authorities in California have brought suit, saying this could cost each of them many millions of dollars to fix.  And that’s just the beginning. The company claims “about 60 percent of the nation’s market for new water pipes.”

And for all of you asbestos trivia fans out there, turns out that JM Eagle is a successor to Johns Manville, which went bankrupt in the early 1980s after poisoning countless people with asbestos for decades knowing the medical dangers, covering this up for 45 years. 

Let’s hope this whole mess at least creates some jobs.

Nursing Home Abuse, Compensation Limits and MICRA

If you know anything about what goes on in nursing homes these days, like our friends do at NCCNHR: The National Consumer Voice for Quality Long-Term Care, you might find it hard to believe that any politician would want to limit compensation to seniors who are abused or neglected in nursing homes.  House Minority Leader Boehner’s health care bill, for example, would have imposed extreme national liability limits in nursing home cases.

Unfortunately, many states have done this already, like California’s broad MICRA law which imposes one-size-fits all caps on injured patients in that state.  But even MICRA has exceptions, and we’re hoping they apply in this highly unsettling elder abuse story out of Ventura County, CA, involving a 71-year-old woman named Maria Arellano.  

Arellano, who was left unable to speak after suffering a debilitating stroke, was living in the Fillmore Convalescent Center in 2006 when her family began noticing bruises on her body.  After expressing concerns about the bruises to center personnel, the family was essentially rebuffed—so they set up a hidden camera.  The resulting footage revealed that center employee Monica Garcia had been “slapping Arellano, pulling her around by the hair, bending her neck, fingers and wrists, and treating her violently in a shower chair.”

A civil suit was then filed against the center on Arellano’s behalf.  Although Arellano’s attorney, Gregory Johnson, offered to settle the matter for $500,000, the center refused, never even offering to resolve the matter with mediation.  “There was a lot of arrogance [on the part of the center],” said Johnson.

In the end, a jury awarded Arellano significantly more that her original settlement offer—which brings us back to MICRA—and more specifically, the question of whether it applies to the Arellano case.

Turns out, the California Supreme Court has said that in cases like Maria Arellano, where the abuse was clearly motivated by “malice,” the answer is no.  (See Covenant Care, Inc. v. Superior Court (2004); Delaney v. Baker (1999).)  We’re especially glad to know this, given that another resident who lived across the hall from Arellano at the center (also a non-verbal stroke victim) may have been subject to the same abuse.  His case is pending.

Unfortunately, for most other California patients, the nightmare of MICRA continues.

FDA Radiation Investigation Underscores Breadth of Corporate Immunity Sought by Health Care Reform Opponents

We sorta understood the breadth of immunity that House health care reform opponents want to bestow on reckless medical care companies and institutions.  (Yes that’s right, Mr. Minority Leader Boehner’s defeated bill would have limited the liability of not just incompetent physicians and unsafe hospitals, but also HMOs, nursing homes and drug and device companies.) 

Sometime you’ve gotta look at real cases to get a true sense.  Say for example, the grotesque problem of radiation overdoes involving certain CT scanning equipment, which FDA investigators now suspect may be due to equipment defects involving more than one company (GE and Toshiba to name two) and may be a widespread nationwide problem.  The LA Times Reports:

In Alabama, Becky Coudert, a 59-year-old teacher, received a CT brain perfusion scan Sept. 8 at Huntsville Hospital, according to her Valencia-based lawyer, Rick Patterson, who is representing several victims from Cedars-Sinai.

The scan ruled out that Coudert had suffered a stroke. But within weeks, there was a bald strip circling her head above the ears. Patterson said medical records indicated that she had received several times the appropriate radiation dose, even more than the patients at Cedars-Sinai [in Los Angeles].

The first indication that anything was wrong with the scans came in August when Cedars-Sinai discovered that it had accidentally exposed more than 200 patients to eight times the normal radiation for the procedure.

The overdoses went undetected for 18 months, even as many patients lost hair as a result.

Under Boehner’s House “substitute” bill, cases involving deaths and injuries due potential machine defects like this could be covered by liability limits.

One doesn’t need a CT scan to see how transparent a corporate gift that would be.

Ford and the $20 Roof Fix

Ever found yourself at an airline gate, standing in a barely moving line, when all of a sudden some idiot bypasses everyone, and audaciously pushes to the front?  It’s that sort of obnoxious sense of entitlement—that sense “these rules don’t apply to me” that permeates this next story.

Benetta Buell-Wilson, mother of two, was in a Ford Explorer rollover crash from which she basically should have walked away.  Instead, she is paralyzed from the waist down and is now living a life of constant pain because the roof crushed in, collapsed on her neck and severed her spine.

The Explorer’s roof was designed with a major - yet easy to fix - defect.  In fact, in her lawsuit, it became clear that had Ford spent just $20 per vehicle to strengthen the roof, which it knew was weak and a big problem because Explorers easily rolled over, Benetta would be OK.  Accordingly, a jury slapped Ford with significant punitive damages, letting it know that such behavior is just not tolerable (just as a jury did almost 30 years ago in the famous Ford Pinto case, where the company refused to make an $11 fix.) 

Here’s where the airport-like audacity comes in…Ford apparently thinks that, unlike every other culpable corporation that puts profits over safety, it shouldn’t have to pay punitive damages no matter who is hurt or killed due to its defects, as long as cars meet weak and outdated “safety” standards.  (We’ve covered roof crush accidents before, not uncommon in this industry.)

Consistent with its Wyeth ruling (i.e., federal regulation and state tort remedies aren’t mutually exclusive and must co-exist), U.S. Supremes took a pass on hearing Ford’s argument, without so much as a comment.

Let’s hope the jury’s lesson is permanent this time.

Actor James Woods Sues a Rhode Island Hospital Over Brother’s Death

Celebrities are often thought to be more or less immune from the everyday challenges of common folk, but as Dennis Quaid, the late Ed McMahon, Dana Carvey, and others have shown, they can be victims of medical malpractice just like anyone else.

Now Academy Award-nominated actor, and Rhode Island native, James Woods is suing Kent Hospital in Rhode Island for the wrongful death of his 49-year-old brother, Michael, who died in 2006 after going into cardiac arrest on a hospital gurney in the hospital’s hallway.

Woods, who is bringing suit on behalf of his deceased brother’s estate and teenage son, said he is doing so to seek “justice.”  

As we noted in our previous post on negligence at Rhode Island hospitals, whatever happens, at least he has the opportunity to bring this action - unlike states like California where so-called "tort reform" prevents many cases from going forward, or greatly limits the accountability of hospitals.  Ask Dennis Quaid about that.

Huff Post: Americans Suffering Enough from So-called “Tort Reform” and Don’t Need More

One of the more underreported, though no less important aspects of this past weekend’s Congressional health care debate (which preceded the historic passage of the U.S. House’s health care reform bill)  was related to attempts by some seeking to “derail” the bill by arguing it didn’t contain enough restrictions on injured patients’ rights (i.e., “tort reform”).  Thankfully, this tactic was soundly defeated, 247-187, but there have already been indications that it will probably reemerge, in one form or another, when the Senate takes up its version of the bill in the days ahead.

Against that backdrop, the Center for Justice & Democracy’s Joanne Doroshow wrote a pretty eye-opening op-ed for today’s Huffington Post, pointing out that most states already have such anti-patient legislation on the books, and underscoring the suffering endured by those currently being victimized by it (like Steven Olsen, pictured, whom we’ve written about here, and who you can read more about here).

“Right now,” writes Doroshow, “the medical profession has more liability protections than any profession in the nation.  They don’t need more, and we don’t need more.”

Now that John Stossel’s Gone, 20/20 Reports on Patient Safety

Since John Stossel has gone over to Fox Business News where he should be more at home, we’re happy to see 20/20 focusing on some better stories – like tonight’s piece on actress Alicia Cole (pictured).  Alicia went to the hospital to undergo a routine gynecological procedure and ended up getting a hospital-acquired infection known as “flesh eating disease.” 

“My stomach just rotted, right before my eyes.  It looked like black tar, or burned rubber.  I was swelling.  It was horrible.”  Cole goes on to say she “attributes her infection to the carelessness of health care personnel, who she says failed to observe basic sanitary standards during her surgery and post-operative care.”  The report cites an Australian study, which found that just 9 percent of doctors comply with recommended hand washing procedures.
 
“What happened to me in the hospital was absolutely preventable,” said Cole.

Check out a video preview of the segment here.

Cigna, ERISA, Legal Immunity for HMOs, and “the Finger”

Did you know you can bring a lawsuit against your HMO if one its employees gives you “the finger,” but not if it wrongly denies your child a life saving transplant?

Such is the moral of a terrible story involving a woman named Hilda Sarkisyan whose17-year-old daughter died after the family’s health insurer (Cigna) refused to pay for a desperately-needed liver transplant, calling it “experimental.”

Strange as that may sound, under the federal ERISA law, if you are insured through your employer, your HMO can’t be held liable for injuries or death when it denies treatment.   The Sarkisyan family learned about this outrageous loophole when a Los Angeles judge citing “a 1987 U.S. Supreme Court ruling that shields employer-paid healthcare plans from damages over their coverage decisions” tossed their wrongful death suit against Cigna.

As Wendall Potter, a former Cigna spokesman who resigned in the wake of the Sarkisyan case, observed,  “"HMOs and insurers are largely free to deny access to care without fear of reprisal or financial consequences."

Meanwhile, desperate for some semblance of justice, Sarkisyan and a group of supporters paid a visit to the Cigna’s Philadelphia headquarters (see video below) demanding an apology from the company’s CEO.  That’s where the “middle finger” comes in.

A group of Cigna employees looking down at Sarkisyan from a nearby balcony began “heckling” her—and one apparently thought it would be a terrific idea to “flip off” the grieving mother.

“They showed me their true colors,” said Sarkisyan.  “Shame on them.”

In a testament to how bizarre the ERISA/HMO immunity provision really is, the “bird flipping” moment has now become “the central element of a lawsuit Sarkisyan and her husband Grigor, are pressing against the health insurer.”  A U.S. District judge gave the family the green light to pursue this claim.

“They kill a beautiful 17-year-old girl, and I get to go after them for a finger?  That’s sick,” said Hilda Sarkisyan,” adding, “If you don’t sue, you can’t make changes…It’s not about the money.  It’s about the principle.  They are just going to keep denying people care if we don’t stop them.”

Check out what Consumer Watchdog is trying to do to fix this situation.

As the late Senator Ted Kennedy (D-Mass.), who led an unsuccessful attempt to close the ERISA/HMO loophole back in 2001 said at the time, “"Patients should have the right to hold their HMO accountable in court when its negligence causes the injury or death of a patient….No other industry in America enjoys immunity from accountability for its actions, and the insurance industry does not deserve it either."

So next time you hear people complaining about lawsuits for medical malpractice, make sure to remind them that HMOs are completely immune from liability.