Monster Beverage, which is “among scores” of caffeine-laden energy drinks “like Red Bull and Rock Star … that companies are aggressively marketing to teenagers and young people,” has been in the news recently. In fact today, Monster made the front page of the New York Times today. Seems like after being sued by the mother of a teenager who died after drinking lots of Monster Energy, reports surfacing of more deaths that occurred after people drank it, and a group of doctors and public health officials now urging the FDA to protect kids from “serious potential health risks” posed by these dangerous energy drinks, Monster has decided to do what any responsible corporate citizen would do: it is remarketing itself. Specifically, Monster has decided to remarket itself as a beverage (rather than a dietary supplement) so it will “no longer be required to tell federal regulators about reports potentially linking its products to deaths and injuries.”
And unfortunately, the law right now lets them do that! The New York Timesnotes, “the changes by [Monster] demonstrate the degree to which energy drink manufacturers can decide which rules to follow.” Not that there is much regulation of the dietary supplement industry anyway, but apparently even some of those rules were just too hard for Monster to follow.
But think about that for a moment. A company that’s currently under scrutiny for – and is now being sued for - causing deaths and injuries, is re-marketing itself so that it won’t have to tell anyone if it learns that its products may have killed someone. And no doubt, it will learn such things. Since October, when the FDA disclosed that five deaths occurred after people drank Monster, the FDA has received three more death reports and 14 injury reports. What’s worse is that this product is being specifically targeted at young people.
The doctors and public health officials note that in addition to being potentially linked to deaths, drinks like Monster can cause cardiovascular complications, seizures, and neurological problems in young people. Indeed, the autopsy and medical examiner reports of the teen whose mom is suing Monster say she died of “’cardiac arrhythmia due to caffeine toxicity’ that had exacerbated an existing heart problem.”
Monster is denying any legal responsibility and is fighting this grieving mom in court. But incredibly, she isn’t Monster’s only legal target. Also on the list is a nutritionist who writes a newsletter for elementary schoolers, who has criticized the energy drink industry – not even Monster Energy or any other product, by name. According to the Times, Monster is now threatening legal action against her, for what they call defamatory statements in a newsletter meant for kindergarteners through fifth graders. “They are going after me for reaching that segment, and it boggles my mind,” she said.”
Energy drink related emergency room visits have skyrocketed from 1,128 in 2005 to 20,783 in 2011. And children are drinking a lot of energy drinks. In a survey nearly 20% of eighth graders said they use one or more energy drinks every day. Now, Monster won’t have to come forward when it learns its drinks may be linked to injuries and deaths. And at the same time, the company is using the legal system to fight parents and intimidate critics. Let’s hope somebody does something soon.
Today we’re going to talk about the safety of children. No, we won’t be analyzing the
disturbing view of some politicians that we should be arming elementary school teachers and
principals. Nor will we be discussing the sad fate
of one mom who owned many guns and trained her mentally disturbed son to use
them. (As Michael Moore summed up this discussion in a brilliantly ironic tweet yesterday: “If only
the first victim, Adam Lanza's mother, had been a gun owner, she could have
stopped this before it started.”) This is not a post about
violence. It’s a post about furniture.
The Consumer Product Safety Commission has issued a new
release calledThe Tipping Point: Highest Number of TV and Furniture Tip-Over
Deaths Recorded By CPSC in 2011. The CPSC, "is urging parents of young
children to anchor and stabilize their televisions, furniture, and appliances
to prevent tip-over related incidents. In a quest to reach a toy, TV or game
remote, or other desired item, young children are using dressers and tables as
climbing devices and the results are tragic." Says CPSC in its release:
A new CPSC data report
(pdf) issued today shows that 349 consumers (84 percent of them were children
younger than age 9) were killed between 2000 and 2011, when TVs, furniture or
appliances toppled over onto them. Last year (2011) had the highest one-year
number of fatalities reported. The 41 recorded fatalities is an increase from
31 in 2010 and 27 in 2009. This total also may increase in future years as
additional fatalities are reported.
Why on earth would there be such an increase? There are some theories:
Some reports indicate that as
families purchase or transition to flat screen televisions, their older and
often heavier televisions are moved into bedrooms and other rooms in the house,
without the proper stand or anchoring device accompanying them. Many of the
reported fatalities occurred in bedrooms, living rooms and family rooms with 40
percent occurring in bedrooms and 19 percent occurring in living rooms or
family rooms.
When
it comes to the cunning techniques of sexual predators, it's hard to beat those
of the late flamboyant, eccentric British TV personality Jimmy Savile. (Check out Louis Theroux’s creepy BBC segment on Savile,
below.) Jimmy was “a tireless fund-raiser,
credited with raising as much as $75 million, whose work took him into
hospitals, children’s homes and schools.”
That gave him access to young hospital patients “who say he molested them
while they were literally in bed.” (Not to mention those in hospital morgues.) Only now, after allegedly raping and
molesting “young victims for decades without anyone stopping him,”
investigations are including how, among other things, he was “given the keys to
Broadmoor mental hospital, a bedroom at Stoke Mandeville and free rein at Leeds
General Infirmary.”
Sound a bit
familiar? Indeed, in Sunday’s New
York Times,
“former [Times] executive editor Bill Keller wrote a column drawing a parallel
between Savile and that of Penn State football coach Jerry Sandusky, who was
recently sentenced to what amounts to life imprisonment for molesting
children.”
Speaking of
Sandusky, another victim has come forward, this one a 22-year-old man who has
filed a lawsuit in Scranton PA, “claiming that Jerry Sandusky fondled him at a summer camp on the Penn State
University campus in 2005” when he was 14. “The defendants are Sandusky; The Second Mile; Penn State; former university
officials Graham Spanier, Tim Curley and Gary Schultz; Penn State's law firm,
McQuaide Blasko; the school's former general counsel, Wendell Courtney; and
Edgewater Psychiatric Center, the agency that referred the plaintiff to
Sandusky's charity."
But the Sandusky situation is hardly the only parallel in today's news.
At
a press conference in downtown Portland Oregon today, “more
than 20,000 confidential Boy Scout documents” will be released “identifying
more than 1,000 leaders and volunteers banned from the group after being
accused of sexual or inappropriate conduct with boys. … The national files are being distributed with the approval of the Oregon
Supreme Court by a law firm that won an $18.5 million judgment in 2010 against
the Boy Scouts in a case where a Scoutmaster sexually abused a boy."
In
other words, but for this important litigation, this information would have
remained secret.
[A]ttorneys
representing victims in several lawsuits against the Scouts say the group hid
evidence from the public and police and that the so-called "perversion
files" offer insight into what they deem a serious problem in the
organization.
The
secrecy protected more than 1,000 suspected child molesters, said the
attorneys, who will publicly release the documents during a news conference in
a downtown Portland hotel. The attorneys are also seeking the release of
post-1985 files from the Boy Scouts.…
The
files will show that the expelled Scout leaders and volunteers -- all men --
"are sociopathic geniuses," said attorney Kelly Clark of Portland,
who has reviewed the 20,000 pages and is among the attorneys releasing the
papers Thursday.
"They
fool everybody," he said. "And then they are able to coerce, convince
or threaten these kids to stay silent. And you see that play out over and over
again in the files."
Meanwhile,
yesterday, a new lawsuit was filed in Maryland by three women who say that an
evangelical church group called Sovereign Grace Ministries, “a 30-year-old
family of churches with more than 80 congregations,” covered up allegations of
sexual abuse against children, failed to report accusations to the police and
discouraged its members from cooperating with law enforcement.”
The
plaintiffs allege a conspiracy spanning more than two decades to conceal sexual
abuse committed by church members. They accuse church representatives of
permitting suspected pedophiles to interact with children, supplying them with
free legal advice to avoid prosecution and forcing victims to meet with and
"forgive" the person that had molested them.
"The
facts show that the Church cared more about protecting its financial and
institutional standing than about protecting children, its most vulnerable
members," the lawsuit claims. …
One
of the three plaintiffs, a high school student in Virginia, alleges she was
sexually assaulted when she was 3 years old and that the mother of the boy who
abused her revealed the molestation to the church. But church officials
discouraged her family from reporting the allegations to police and, instead,
repeatedly interviewed the alleged abuser and worked with him and his mother to
determine how best to prevent any prosecution and publicity regarding the
abuse.
A
second plaintiff, a college student in Maryland, was sexually abused as a
toddler by a church member, the lawsuit claims. A pastor scolded her parents
after they called police and then tipped off the accused that he had been
reported, according to the lawsuit. Her parents were instructed to bring her to
a meeting with her alleged abuser so they could be "reconciled," but
she was "visibly scared and crawled under the chair" after being
brought into the same room with him, the suit says.
The
third plaintiff says her adoptive father, a member of the church, sexually
abused her older sister for three and a half years. She says the church warned
her mother not to pursue a prosecution, then kicked the family out of the
church and denied the children reduced tuition to school. The man was
ultimately prosecuted and imprisoned, the lawsuit says.
The other day, Newt Gingrich called child labor laws “stupid.” We report this not to make a statement about presidential politics, but to show where some people are when it comes to workplace priorities these days. (Or as David Letterman’s put it, "this is the man we need to lead us into the 18th century.")
Safety isn’t much of priority for many firms, which makes Newt’s idea especially wacky. In fact, let’s “Span the World” of OSHA highlights this week (And yes, somebody got hurt.)
For the sixth time, OSHA (that is, the U.S. Department of Labor’s Occupational Safety and Health Administration) has cited a Wisconsin Rapids carbon steel foundry “for overexposing workers to crystalline silica, a known hazardous material.”
In upstate New York, OSHA cited the Wisconsin-based Briggs & Stratton Power Products Group,
for alleged repeat and serious violations of workplace safety standards at its Munnsville manufacturing plant. The lawnmower manufacturer faces a total of $125,000 in proposed penalties, chiefly for mechanical, electrical and fall hazards identified during an inspection begun in June by OSHA's Syracuse Area Office.
The sizable fines proposed in this case reflect both the gravity of these hazards and the fact that several are substantially similar to conditions cited in an earlier OSHA inspection," said Christopher Adams, OSHA's area director for central New York. "It's imperative that this employer not only corrects these latest hazards but also takes effective steps to ensure that they are corrected once and for all."
Down in Hot Lanta, OSHA cited Midsouth Steel Inc., "a general contractor performing steel fabrication and roof decking ... for four safety violations following an inspection that found workers exposed to fall hazards,” specifically, “allowing them to work at heights of 35 feet in an aerial lift without requiring the use of fall protection, exceeding an aerial lift's load capacity and failing to provide fall protection for employees working on a steep pitched roof.” Three of these violations were “willful,” that is, “committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health."
In Illinois, OSHA cited “Igor Jerema Construction Co. in Buffalo Grove for four willful safety violations after a worker applying stucco at a home under construction in Burr Ridge fell off a scaffold and sustained a fatal head injury in May.”
In Texas, OSHA cited "Houston, Texas-based oil and gas drilling contractor Nabors Drilling USA LP for two alleged workplace safety violations after a worker was electrocuted at a Williston job site in May.”
Then of course, there’s retaliation against whistleblowers who report safety violations:
[OSHA] filed a lawsuit against the Angels With Paws animal shelter in Lakewood on behalf of an employee who was terminated in violation of the whistleblower provisions of the Occupational Safety and Health Act. The employee had complained about safety and health hazards to the animal shelter's management before filing a formal complaint about the hazards with OSHA. The employee was later discharged and then filed a whistleblower complaint with OSHA alleging retaliation by the defendants in violation of Section 11(c) of the OSH Act. OSHA's Whistleblower Protection Program conducted an investigation and determined the former employee's allegations had merit.
Mix that all up with a little bit of anthrax in the workplace (the federal government just settled with the family of Robert Stevens, a tabloid photo editor in Florida who was killed after receiving an anthrax letter in 2001), and voila! A perfect place to send the kids!
Here’s the whole Letterman monologue. (As we’ve said before, we take no position on this election, but sometimes, well, we just can't resist the comedy.)
Read some of these news stories today, and tell me that kids don’t deserve better than this:
The Minnesota Department of Health may be improperly keeping the blood newborns without the written consent of parents and turning that blood over to research. Ugh.
Johnson & Johnson has finally agreed to remove cancer-causing chemicals from its baby products, like Johnson's Baby Shampoo, which contains formaldehyde-releasing chemicals. We should be happy about this result since the company still doesn’t admit there’s any problem subjecting babies to formaldehyde in its shampoo – as safe as “eating an apple or pear,” they say. And they want to be sure you know that “the commitment to remove chemicals of concern does not apply to Johnson & Johnson's adult products such as those in the Aveeno or Neutrogena lines.” In addition, the Campaign for Safe Cosmetics notes that “several other top children's bath products — made by Huggies, L'Oreal, Grins & Giggles, Baby Magic, Sesame Street, CVS and others— also contain formaldehyde-releasing preservatives as well chemicals associated with 1,4 dioxane.” Read more here.
A Power Rangers "samurai mega blade" and a Godzilla figure with dagger-like attachments are some of the most dangerous toys lurking in stores this holiday season, according to a consumer watchdog group.
Boston-based World Against Toys Causing Harm (WATCH) on Wednesday issued its annual list of the 10 worst children's toys, just in time for the shopping frenzy that typically starts in late November.
On the list were items the group said pose risks for choking, electrocution, puncture wounds and more.
Like J&J I guess, the Toy Industry Association thinks we are all overreacting, and that reports of toy hazards like this “needlessly frighten parents.”
As for kids' clothes, it was just announced that “About 45,000 KEDS 'Know It All' girls' shoes distributed by Collective Brands Inc. are being voluntarily recalled after more than two dozen users received cuts and scratches from parts that came loose.”
And last but not least - schools. In Los Angeles, the City Council just voted to settle a lawsuit brought by the Los Angeles Unified School District because “soil underneath a high school campus in Glassell Park was contaminated by chemicals that originated at a nearby city-owned property.”
In their lawsuit, district officials said industrial solvents and other hazardous substances had been found in soil at one end of the campus — and fingered land owned by the Bureau of Sanitation as the culprit.
It’s hard to talk about Penn State’s sexual abuse and cover-up scandal/tragedy without becoming physically ill, but that’s certainly no excuse for sweeping any aspect of this story under the rug. So we’ll approach the angle that we know best – civil justice.
Today’s Philadelphia Inquirer has a piece about Penn State's potential liability, “broad parameters” of which were laid out by state Attorney General Linda Kelly who “has charged athletic director Tim Curley and Gary Schultz, university vice president for finance and business, with failure to report the abuses and lying to a grand jury.” And, “on at least one occasion, alarming information was made known to legendary football coach Joe Paterno and university president Graham Spanier.”
The school’s legal liabilty comes in because much of this happened on school premises. Because abuser Jerry Sandusky, "who retired in 1999 but held emeritus status, had wide access to university athletic facilities and other areas of the campus …. 'the legal issues are relatively simple,'" said one attorney.
The university had known that a dangerous condition existed on its premises but did not take steps to correct it.…
"My goodness, they had notice of particularly dangerous conduct as it relates to defenseless 10-year-old children and not only do they not take steps to remedy the condition but they provided him with the means to perpetrate these acts."
And while news coverage of this scandal may eventually fade, stories about horrific abuse by Catholic priests clearly is not ending anytime soon. Yesterday, a Florida jury awarded $10 million in compensatory damages and $90 million in punitive damages in a case against one such priest.
Unlike many other lawsuits brought against the church, this one was against the priest himself, Rev. Neil Doherty. The Miami Heraldwrites:
This is the first case of more than 20 filed against Doherty that has reached a jury — dozens of others have been settled out of court for around $50,000. Even more uncommon was the fact that Doherty, not the archdiocese, was named as the defendant in the case.
Jessica Arbour, one of the lawyers representing [Andres] Susaña, said her firm, in an unusual move, decided to explicitly name Doherty in the lawsuit, filed earlier this year.
“This was a chance for [Susaña] to be empowered and hold Father Doherty personally accountable for what he did,” Arbour said.
The dozens of other cases filed by Arbour’s law firm have sued the Archdiocese of Miami, accusing it of covering up Doherty’s abuse and putting him in a position where he could further abuse boys.…
Jeff Hermann, an attorney also representing Susaña, said the jury’s decision sets a benchmark for future cases.
“Now, we have a measure about what a jury thinks a victim should receive,” Herman said. “It sends a message … we hope the message this sends can protect other children in the future.”…
Susaña said for him, the lawsuit was less about money and more about seeking justice: “There isn’t any amount of money that can make up for what I’ve been through.”
When Little Richard wrote "Slippin' and a slidin', peepin' and a hidin'," in 1956, I know he wasn't singing about dangerous backyard waterslides and cover-ups by manufacturers, but he sure could have been.
Back in the 1970s, Wham-O manufactured a “Slip 'N Slide”, where you’d do a running dive headfirst onto its slippery surface. But as you were sliding, air pockets were created under the slide. Anyone over a certain weight could hit those air pockets with their chin, forcing their head to stop while the rest of their body continued to slide – breaking their neck.
Wham-O discontinued the product after three people broke their necks. But then in 1982, a company called Kransco purchased Wham-O and its entire product line and reintroduced this Slip ‘N Slide. Sure enough, more people broke their necks. For example, in June 1987, Michael Hubert, a father in his mid-30s, became partially quadriplegic after using it. He sued. In June 1991, 34-year-old Bill Evans became paralyzed from the neck down after his Slip 'N Slide adventure. When Evans and Kransco discussed settlement, Kransco conditioned the agreement upon Evans’ promise to keep silent about the hazards of this product. Nevertheless and fortunately, after these cases and other litigation, the dangerous nature of the Slip 'N Slide became public knowledge. (Learn more about these cases here.)
So you are probably asking what’s this have to do with you and me? Well, if you are a fan of Toys "R" Us, you might be interested to know that just a few years ago, sitting on the shelves of your local store was a backyard water slide called The Banzai Falls. This was an in-ground pool slide that “was never tested to determine whether it met federal safety standards for pool slides before or after it was imported from China by the retailer, a violation of federal law.” It was a significantly defective and dangerous product, and sure enough users of this slide started breaking their necks:
Robin Aleo was 29, married and the mother of an 18-month-old daughter when, during a pool party at the Andover home of relatives on July 29, 2006, she climbed to the top of the 6-foot-high Banzai Falls slide, then started sliding down head-first.
Near the bottom, the slide suddenly bottomed out and Aleo struck her head on the edge of the pool, according to testimony. Her neck was broken, and she was left paralyzed and unable to breathe. She died the following day at a Boston hospital.…
Aleo and others at the party testified that the couple's daughter was present when her mother was pulled, unconscious, from the pool. Michael Aleo attempted mouth-to-mouth resuscitation and told jurors that as he looked at his wife, she mouthed the word "more." But the injury left her unable to breathe on her own, and her condition deteriorated.…
Robin Aleo was at least the second person allegedly left paralyzed by such an incident on the Banzai Falls slide [the other one was purchased at Wal Mart], of which more than 4,000 have been sold nationwide, according to court records.
Apparently,
[T]he company that Toys "R" Us uses in China to safety-test products before they are imported, Bureau Veritas, was never asked to test the pool slide for compliance with federal safety regulations governing pool slides.
The product was tested for other product safety rules — and twice failed, once for containing lead in excess of federal limits — but not for compliance with the Consumer Product Safety Commission pool slide regulation, a former Toys "R" Us executive acknowledged during testimony on Wednesday.
Robin’s family sued and very late last week, a Massachusetts jury awarded the family:
$2.5 million in anticipated lost income from Aleo's apparently successful advertising and marketing career and other actual damages, $100,000 in compensation for pain and suffering before her death, and $18 million in punitive damages.”
Smith, the attorney for the Aleo family, said he hopes the size of the verdict and in particular the punitive damages sends a message to all retailers and importers "to make sure, not just for toys but for all products, that they comply with our laws and that they are safe.
To: Barbara Strauch, Science Editor, The New York Times From: Your Boss Re: “Can a Playground Be Too Safe?” Date: July 19, 2011
Barbara,
I know we’ve been cutting staff like crazy over here, but I hope you agree that brain pieces aren’t the only ones in need of your skilled edited assistance, especially ones that are entirely self-contradictory yet end up on the front page of the Science Times section.
To wit, today’s article by John Tierney called “Can a Playground Be Too Safe?,” about how today’s safer playgrounds are “stunt[ing] emotional development” and suggesting we should consider going back to the days of much more thrilling prison-style steel playground structures of the 1950s.
Mr. Teirney argues that today’s safer playgrounds aren’t risky enough, and in fact, are “leaving children with anxieties and fears that are ultimately worse than a broken bone.” A few paragraphs down, he supports his view by quoting an expert who says, “There is no clear evidence that playground safety measures have lowered the average risk on playgrounds.” In other words, kids are still encountering risks and, we assume, “overcoming anxieties and fears” – just on better equipment. So to begin, this whole thing is pretty confusing.
The basis for this article is a study done in Norway, England and Australia. These are countries with no right to trial by jury in civil cases and with universal health care paid for by taxpayers. So although it’s not stated in the article, we assume their motive for moving to safer playgrounds is the safety of their children and lowering the health care costs of their countries. Such an explanation is apparently a problem for someone intent on finding any opportunity to take a gratuitous swipe at the U.S. trial bar for no reason. Like here, when Mr. Tierney writes:
The old tall jungle gyms and slides disappeared from most American playgrounds across the country in recent decades because of parental concerns, federal guidelines, new safety standards set by manufacturers and — the most frequently cited factor — fear of lawsuits.… Fear of litigation led New York City officials to remove seesaws, merry-go-rounds and the ropes that young Tarzans used to swing from one platform to another. Letting children swing on tires became taboo because of fears that the heavy swings could bang into a child.
“What happens in America is defined by tort lawyers, and unfortunately that limits some of the adventure playgrounds,” said Adrian Benepe, the current parks commissioner.
Now that sounds nasty. So I was more than a bit surprised to read, in complete contradiction to this sentiment, Mr. Tierney continuing, “But while he misses the Tarzan ropes, he’s glad that the litigation rate has declined, and he’s not nostalgic for asphalt pavement. 'I think safety surfaces are a godsend,' he said. 'I suspect that parents who have to deal with concussions and broken arms wouldn’t agree that playgrounds have become too safe.'"
In other words, litigation is working to protect kids, make parents happier and save money.
Of course no one wants to imagine something going wrong during childbirth, but the reality is that some doctors are negligent, some hospitals are unsafe, and the State does little about it. Read Dr. Lora Ellenson’s story here. Or see here trial testimony of a mom with a brain-damaged child caused by negligence and try to put yourself in her shoes.
Last night, New York passed a State budget that ensures that unsafe hospitals will no longer fully pay for their own negligence if something should go wrong during childbirth, while punishing families in an almost unthinkable way. New York State will now be the only state in the nation where, if something does go wrong during a child’s birth and the baby suffers brain-damage, the negligent hospital will be largely off the hook and the child will likely be condemned to a lifetime of suboptimal care, no matter what a jury finds.
Basically, New York has just set up a bureaucratic monstrosity for these families, whereby they will be forced to go to a State Fund to pay for the child’s care. The money for this Fund will come from a hospital surcharge based on its obstetric revenue (so essentially, obstetric patients will be charged a tax to subsidize the negligence of the medical providers. Nice). And it is grossly underfunded to boot, limited to running at $30 million per year with the ceiling determined after four years. Soon, there will be too many children being added each year to allow it to be sustainable in the future – assuming it is sustainable in the near term. If it runs out of money, no new patients will be allowed in – at least until more money comes in. But those who are already in the system will likely have to turn to Medicaid, with taxpayers subsidizing.
Here are some more highlights:
- The Fund kicks in after a jury verdict or settlement, in other words, after the family endured the time and expense of proving their case in court (or settled), and the health care provider was found negligent.
- The family receives their non-economic damages (no cap) from the negligent provider, but will not receive funds for future medical expenses to which they are entitled. Instead, they will have to be reimbursed for medical or other expenses by the fund if health insurance doesn’t cover it, or their provider will be reimbursed by the Fund. This turns the family into perpetual claimants even though a jury has already ruled in their favor, adding additional burdens on families who already face unimaginable challenges caring for a profoundly disabled child.
- Physicians will make treatment decisions; some other expenses will be decided by regulation. Private physicians will be reimbursed at usual and customary rates; other health care services will be reimbursed at Medicaid rates. However, there is enough wiggle room in the language so that sooner or later, as the Fund starts to run out of money as it likely will, these children who should be entitled to the best care available are going to be relegated to the cheapest care available at Medicaid rates, which not all doctors will even accept. Even though the law says there is no requirement for prior approval for care, the Fund administrator has the absolute and unqualified power to enact a regulation requiring prior approval.
- The provisions of the bill are retroactive, covering all currently pending cases.
The concept of this Fund was developed by self-dealing hospital members of Governor Cuomo's Medical Redesign Team - an entity that we have pointed out time and time again was dominated by these corporate interests and devoid of patient representation. The result is a measure that permanently strips the State’s most vulnerable victims – catastrophically-injured newborns - of Constitutional rights afforded every other victim of wrongdoing in this State. What’s more, because unsafe hospitals will no longer fully pay for their own negligence in these cases, accountability for negligence is weakened and more unsafe care will result.
The only good thing we can say about all this is that State lawmakers rejected a key item that the entire medical industry wanted: a cruel $250,000 cap on non-economic damages, which would have covered all injured patients. Keeping this provision out of the State budget was a tremendous victory for all New Yorkers who care about the ability to hold powerful interests accountable when they engage in misconduct. But this brain-damaged baby Fund, while improved from the original version, is terrible, and raises fundamental Constitutional concerns.
This Fund will hurt patients and patient safety, do nothing to help doctors with their insurance problems and places the burden of solving a short-term budget problem, not to mention a patient safety problem, on the backs of sick and injured children who became political bargaining chips to get a budget deal through. Let’s hope the Constitutional challenge moves forward quickly.
Your challenge: try to make sense of the following. But we will have no winners, at least not today.
The U.S. House Judiciary Committee continues its mark up of H.R. 5 on Wednesday, a bill that would massively preempt state medical malpractice laws as bill supporters try to tell states that they do not know best - Congress does. This will come a couple hours after those same bill supporters denounce the new health care law as unconstitutional after arguing that Congress does not know best - states do.
Some of these same members of Congress just formed a “Civil Justice Caucus,” the goal of which is not to support civil justice but to obliterate it.
Meanwhile, President Obama has decided to use scarce budget dollars to further harm the sick and injured who may already be suffering directly because of his budget. Specifically, in a budget that fails to provide enough money for housing and heating assistance for the poor, the budget proposed by President Obama includes $250 million for unneeded state programs that will harm patients injured by medical malpractice, jeopardize patient safety and generate more profit for the corporations that control the health care industry. Some of these measures would eliminate the right to trial by jury in medical malpractice cases and are likely unconstitutional.
And New York Governor Andrew Cuomo – or at least a “Medicaid Redesign Team” that he appointed - appears interested in recommending Draconian restrictions on the rights of patients, specifically targeting brain-damaged babies. These proposals have nothing whatsoever to do with saving Medicaid money, but instead will generate profit for the corporations that control the health care industry.
All opinions expressed on this blog are those of the authors only. Any disputes should be addressed to the authors or commentators. The Pop Tort invites comment to further the debate on issues addressed, but we reserve the right to deny or remove any post or comment.
