ThePopTort

The Wrong Respone to Toyota

Have you heard the latest about Toyota's problems?  It now seems the company’s sudden acceleration” fixes” aren’t working. This comes after evidence that the company tried to cover up problems by withholding discovery documents in litigation.  Could it get any worse? 

Oh yes, thanks not to the company, but to our elected leaders.

There have been some very serious questions raised about the National Highway Traffic Safety Administration’s handling of the Toyota debacle, something we have written about here. 

One of the problems, clearly, is that that agency is dangerously underfunded and understaffed.  Ralph Nader wrote in Sunday’s Los Angeles Times that even in the midst of the Toyota situation, “President Obama actually recommended cutting NHTSA's motor vehicle safety budget next year by $8 million.”  (By the way, this is at the same time the President wants to spend another $50 million to support creation of completely unnecessary new court systems to handle medical malpractice cases that our courts currently handle just fine at relatively small cost.)  Nader writes:

Former NHTSA Administrator Joan Claybrook has testified to the need for an immediate budget increase of $100 million just to assure that NHTSA has the technical personnel and capability to meet its obligations in the areas of safety standards, defect recall, enforcement and research.

At a time when about 40,000 Americans die in cars each year and hundreds of thousands more are injured, NHTSA's motor vehicle safety budget is a mere $140 million. By comparison, taxpayers will pay more than four times as much -- about $675 million -- to guard the U.S. Embassy in Baghdad.

Meanwhile, the South Carolina House has just passed a bill to severely cap punitive damages to “$350,000 or three times compensatory damages, whichever is greater.”  In arguing against the bill, opponents cited “runaway Toyotas” as among reasons why punitive damages should not be capped legislatively.  Punitive damages "send a message to corporations about protecting consumers…. ‘Let me tell you what this is truly about; it's corporate greed,’ said Rep. Chris Hart, D-Richland, who talked about how one insurance company made $58.1 billion in profits last year.”

Indeed,  although extremely rare, punitive damages have critical social and financial importance lying not in their frequency, but in the “signals” they send.  As we’ve mentioned before, history shows that companies will sometimes balance safety against profits in determining whether to redesign or recall a defective product, clean up a toxic waste site or end a dangerous practice. Juries know that, to a multibillion-dollar company, even a $1-million punitive damages award is barely a slap on the wrist.

Given the rash of corporate abuse in this country, including the Toyota disaster, a punitive damages “cap” seems like the worst possible idea at the worst possible time.

In Memorium: Martin Harnett

We are terribly sad to report that yesterday, Martin Harnett passed away due to complications stemming from medical malpractice at birth.  He was 14-years-old.

Martin and his mom, Donna, touched everyone who met them.  The case of malpractice during Martin’s delivery was awful, indisputable and completely preventable. It resulted in substantial brain damage, cerebral palsy and need for around-the-clock care.

Donna sued and was able to obtain compensation to help take care of Martin. At that point, Donna could have stepped back from the spotlight, and honestly, who would begrudge her for doing that? But Donna wasn’t finished.  She decided to turn this experience into something positive for Illinois and the country, seizing the opportunity to fight anti-patient legislation in both Springfield, IL  and nationally.  She wanted to make sure that patients who were hurt by their healthcare providers could hold those providers accountable and receive fair compensation for their suffering.  Sometimes she even took Martin and her family with her to lobby.

Martin’s medical malpractice ultimately proved fatal, but he lived life with a terrific spirit. We will miss Martin very much.

Below is an excerpt from Senate Richard Durbin (D-IL)’s moving December 2, 2009 remarks about Martin and Donna on the Senate floor. (Congressional Record, Pages S12109-S12111):

In this photo is a group of kids, including Martin Harnett of  Chicago. When Martin's mom Donna arrived at the hospital to deliver, her labor wasn't progressing. Her doctor broke her water and found out that it was abnormal. Rather than considering a C-section, Donna's doctor started to administer a drug to induce contractions. Six hours later, she still hadn't delivered, but her son's fetal monitoring system began indicating that he was in severe respiratory distress.

The doctor finally decided it was time to perform an emergency C-section, but it was another hour before Donna was taken into the operating room. During that time, the doctor failed to administer oxygen or take immediate steps to help Martin breathe. After he was born, Martin was in the intensive care unit for 3 weeks.

Later, Donna learned that Martin had substantial brain damage and cerebral palsy--a direct result of the doctor's failure to respond to indications of serious oxygen deprivation and delivery in a timely manner. Donna's doctor told her not to have any more children because there was a serious problem with her DNA, which could result in similar disabilities in any of her future kids. Since then, Donna has given birth to three perfectly healthy sons.

Donna sued the doctor responsible for Martin's delivery and received a settlement. She is thankful she has money from the settlement to help cover the costs associated with Martin's care that aren't covered by health insurance, such as the wheelchair-accessible van that she bought for $50,000 and the $100,000 she spent making changes to her home so her son can get around the house in a wheelchair.

What would Donna have done without the money from that settlement? It is a scary thought because Martin is going to require a lifetime of care. When we put caps on recoveries and say there is an absolute limit to how much someone who has created a problem has to pay out, we have to think about it in terms of real-life stories, such as Martin's. Martin will live for a long time, and he is going to need help. Somebody needs to be responsible for that. The person who caused this should be responsible for it. That is pretty basic justice in America.

Sadly, Martin did not live a long time.  But his legacy certainly lives on.

A Week of Mixed Messages, Civil Justice Style

In the mid-1980s, both Maryland and Missouri enacted pretty severe “caps” on compensation, which did nothing to reduce insurance rates for doctors. (Among other states.  See Appendix for full list.) While the hopes of Maryland patients were dashed this week when the Maryland Court of Appeals upheld the caps, overturning a lower court decision that had invalidated them, patients in Missouri had renewed hope.  The Missouri Supreme Court heard arguments this week asking that their state’s severe cap be overturned.  This comes after a dynamite St. Louis Post-Dispatch editorial slamming the medical establishment for forcing this cruel law on Missouri citizens, which we wrote about.

Also this week, Senator Patrick J. Leahy (D-VT), who chairs the U.S. Senate Judiciary Committee, as well as 18 other Senators, sent letters to President Obama and leaders in Congress “urging them to repeal the limited exemption for insurers from federal antitrust laws as part of the final version of major health care legislation.”  Incredibly, the insurance industry is the only industry in the country allowed to engage in anti-competitive behavior - except for Major League Baseball, that is.  That’s why, while the insurance industry’s right to price-fix and collude is being condemned, the NFL went to the U.S. Supreme Court this week and asked that the exemption apply to them!  Interesting timing.

And finally, the rabidly anti-civil justice organization, the U.S. Chamber of Commerce, never disappoints with its own brand of mixed messages, announcing again that it may be suing the Environmental Protection Agency over its greenhouse gas policy! Here’s how Chamber CEO Tom Donohue put it: “There are a number of options and processes available both in the courts and in other parts of government.”  How nice for them.  Meanwhile, the Chamber hosted a conference this week on the economy to push its anti-consumer business agenda, in a space constructed by and paid for by AIG.  On second thought, no mixed message there!   

After Nearly 7 Years of Torturous “Tort Reforms,” Rural Texans Ask: Where are the Docs?

If you obliterate patients’ rights, they will come (the doctors, that is).  And if you don’t, they’ll leave.  So goes the oft-repeated promise – and threat – of the insurance industry and medical lobbies.  We’re all too familiar with how the “access to care” issue tends to be discussed – couched in hyped-up fear-mongering, not facts. “Who Will Deliver Your Baby?” said the scary, glossy Texas brochure in 2003, with industry arguing that the only way to solve doctor shortages in rural Texas was for patients to relinquish their constitutional rights – which they proceeded to do. 

But facts are stubborn things, as the Texas Observer first pointed out in 2007.  No, the docs were not coming back to these areas.  Not that anyone should be surprised, given the wealth of evidence showing why not.  But that hasn’t stopped politicians from continuing to mislead the public about what happened in Texas, repeating the myth the doctors have returned to underserved areas now that everyone’s legal rights have been stripped away.  

But here come those stubborn facts again!  According to a recent analysis of Texas Medical Board data in the Fort Worth Star-Telegram, “[t]he number of new doctors in family practice, the area most in demand, has increased by only about 200 [since 2003], about 16 percent, and more than 130 counties still did not have an obstetrician or gynecologist as of October [2009].”  Meanwhile, of the new doctors who have chosen to settle in Texas since 2003, more than half have chosen to “settle in the state’s largest urban areas, not in rural areas, where the shortage has been most apparent.”  And twenty-two Texas counties have no doctor at all.

Similarly, the New York Times reported yesterday that in Texas, “180 counties do not have enough physicians, 70 percent of patients cannot obtain a same-day visit with their primary care doctor, and 79 percent of emergency room visits are for routine problems.” 

Ultimately, as Alex Winslow, executive director of Texas Watch, observed: "Consumers [in Texas] are much worse off today….Not only have they not seen the benefits they were promised in healthcare, but now they’ve lost the ability to hold someone accountable. I think that puts patients at greater risk."

New York Hospital Executives Are Acting Like Wall Street Bankers

Wow, those executives really have some nerve, giving themselves outrageous bonuses and all. The bankers again?  No, actually, this time we’re talking about executives at tax-exempt New York City hospitals! This incredible story was dug up by the New York Post last weekend, in a story entitled, "Sickening Bonuses." It is not to be believed. Here’s a sample:

Wall Streeters aren't the only ones raking in big bonuses during tough economic times.

Hospital presidents and CEOs also collect fat bonuses and "incentive payments," even as health-care systems cry poverty,claiming they struggle to break even against government cutbacks, tightwad insurers and skyrocketing costs.

While warning of layoffs and slashed patient services, many hospitals shower their top execs and department heads with bonuses and perks. They include housing allowances, chauffeurs, first-class air travel, tuition for their kids and country-club memberships.

The filings for the city's biggest and most prestigious private, tax-exempt hospitals show at least a dozen CEOs get compensation of $1 million and up. Some also cash in early on million-dollar pre-retirement payouts while on the job.

Meanwhile, the Greater New York Hospital Association just testified in Albany about the hospitals' “woe is me” financial situation, with the nerve to blame patients injured by reckless and negligent health care.  Center for Justice & Democracy responded here with letters to government officials. Hope they take notice!

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.

An Unlikely Shout Out on Race, Discrimination and Tort Reform

We always like to pay particular note when our friends over at Dick Cheney’s favorite think tank, the Manhattan Institute, decide to give the Center for Justice & Democracy props—especially since we can always use it to bring more attention to an important issue – this time, race discrimination and “tort reform.”

As they noted and we are proud and honored to tell you, a recent CJ&D law review article, The Racial Implications of Tort Reform, was cited by the NAACP in its amicus brief challenging Missouri’s cruel cap on damages!  Take a read to see how tort restrictions weaken our ability combat hate groups through lawsuits (you can find some examples here), how racial and ethnic minorities are subjected to higher rates of preventable medical errors and how patient rights restrictions hit them especially hard, the discriminatory impact of caps, environmental injustices and how throughout recent history, business groups have often targeted juries in minority jurisdictions for baseless attacks.

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.

A Great Lesson on Attorney’s Fees Via the U.S. Senate!

Good news out of the U.S. Senate yesterday. 

A cynical amendment to the Senate health care bill sponsored by Senator John Ensign (R-NV) that would have effectively slammed the courthouse doors on countless numbers of injured patients was soundly defeated by a strong bi-partisan vote of 32-66.

The amendment would have imposed national wage caps on fees for attorneys' representing injured patients—that is, the percentage attorneys may earn if their client prevails.

Capping these fees is a major agenda item of the so-called “tort reform” movement.  The goal is to keep injured patients from getting decent legal assistance, which is why big “tort reformers” like Ensign are behind it.  Here are some important things to know about it:

•    This fee arrangement is tantamount to an injured party’s “key to the courthouse door”. Under a contingency fee system, a lawyer takes a case without expecting any money up front—which is good, as injured patients may be in pain, unable to work, or lack funds to pay next month’s mortgage or rent, let alone an hourly attorney’s fee.
•    Despite much rhetoric to the contrary, the vast majority of contingency fees are a fair 1/3 of the award or judgment, not 40 percent or 50 percent, as often asserted.
•    Conservatives actually LIKE contingency fees because they screen out frivolous lawsuits.  Fees are paid only if the attorney wins.  If the case is lost, the attorney is paid nothing. That is a huge risk! They may spend tens of thousands, even hundreds of thousands of dollars up front on the case, only to finally lose that case and receive nothing.  Can you imagine if you had to work with that kind of financial peril over your head?
•    These proposals never suggest capping fees for defense attorneys, who bill for every minute that they work, and they’re paid every dollar that they charge, whether they win or lose.  Nothing like a little hypocrisy!

Hilarious SNL Opening on Medical Malpractice

It’s not everyday that Saturday Night Live audiences get to see just what we’re talking about! Check out the video at about 2:05 for a little patient safety humor.