ThePopTort

The Right Side of Civil Justice

In November 2009, some very brave medical malpractice victims decided to visit the district offices of Virginia’s two U.S. Senators in the hopes to showing them the importance of the civil justice system.  When they arrived, the local Tea Party group was demonstrating.  As the families tried to get through the door, they were yelled at and harassed with cruel taunts and screams (“communists!”) and more.  That was then.  This is now.  I hope. 

Since that time, many in the conservative movement have said that actually, the right to access the courts and civil jury trials is fundamental to our democracy, enshrined in the Bill of Rights and in need of protection right now.  If they need any more reminder of that, I hope they think about the fact that the tool they are using to sue the IRS – a class action – is on the brink of extinction in many areas, thanks to Congress and the U.S. Supreme Court. 

So far, there have been two cases filed against the IRS.  The latest is from “True the Vote, a Texas-based Tea Party-related group, [which] claims it was unfairly targeted by the Internal Revenue Service and wants the government to admit its mistake and pay for damages totaling more than $85,000." The other is by “the Nor Cal Tea Party Patriots.”  Writes Fox,

The NorCal lawsuit, filed in the U.S. District Court of Cincinnati, seeks group status for “all conservative and libertarian groups targeted for additional scrutiny” between March 2010 and May 2013. It’s also seeking unspecified monetary damages for the alleged violation of its constitutional rights and the costs associated with trying to comply with IRS demands.…

The lawsuit seeks unspecified monetary damages for the IRS’ alleged violation of the Privacy Act of 1974 and the First and Fifth Amendments of the U.S. Constitution. It is not known exactly how many groups could qualify to be members of the class-action lawsuit. There were 296 applications reviewed in the inspector general’s report released last week.  

Also interesting is the fact that the ACLU, still sometimes tagged with the "communist" label by the right,  (ah, remember when Bill O'Reilly had this lovely remark: "Hitler would be a card-carrying ACLU member. So would Stalin. Castro probably is. And so would Mao Zedong."?) is now representing two editors at a libertarian online magazine, Antiwar.com, who were targeted for surveillance by the FBI. 

After a year, the FBI has failed to produce any documents, so Garry’s and Raimondo do not know the full extent of the surveillance and whether it is ongoing. The editors are asking the FBI to turn over relevant documents, and to stop collecting records of their constitutionally protected speech.

“Freedom of the press is a cornerstone of our democracy, whether it’s the Associated Press or Antiwar.com,” said Julia Mass, staff attorney at the ACLU of Northern California. “Government surveillance of news organizations interferes with journalists’ ability to do their jobs.” 

And speaking of the Associated Press and the surveillance of journalists, SNL star Dana Milbank’s column in the Washington Post is a must read.

Lawsuit’s Hard Knock Life Gets a Break

Hi.  My name is Annie Lawsuit and let me tell you, it’s not easy being me.  Politicians constantly insult me.  The media constantly misrepresent me.  I’ve had Presidents of the United States attack me - by name!  My ability to exist at all is threatened every day.  

But today is a good day.  Today, my very existence was publicly validated in ways that I could never have imagined.  Let me explain.

If you look on the op ed page of the New York Times, you will find a column called, “Learning From Litigation” (in the very same spot they gave Angelina Jolie last week, no less.)  Like I’ve been trying to tell everybody all these years, I am something you can learn from!

The author of this article said some really nice things about me and I couldn’t be more proud.  Here’s some of what she wrote:

My study … shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.…

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Moreover, litigation discovery can unearth useful details about safety and quality concerns. Analyses of claim trends can reveal problematic procedures and departments, and closed litigation files can serve as rich teaching tools. …

Moreover, because lawsuits help to identify incidents and details of medical error, limitations on lawsuits may actually impede patient safety efforts.

Medical-malpractice lawsuits do not have the harmful effects on patient safety that they are imagined to have — and, in fact, they can do some good.

That's not all. We learned late yesterday that Charles Schwab backtracked on its “requirement that clients waive their right to bring class-action lawsuits.”  (See our earlier coverage.)

Schwab's right to stop clients from bringing coordinated court actions was challenged last year by the Financial Industry Regulatory Authority, the securities industry’s principal regulator. A FINRA hearing panel in February ruled that Schwab's policy does violate FINRA rules but was consistent with federal law and recent Supreme Court interpretations of the Federal Arbitration Act.…

Consumer advocates, along with class-action lawyers, have blasted Schwab's efforts to limit the lawsuits, saying many ordinary investors cannot afford to pay on their own for the cost of arbitration hearings.…

Public Citizen, a consumer watchdog group that has been circulating a petition asking Schwab to rescind the class-action ban, congratulated the company for its "responsible" decision. It said many of its 19,000 supporters who signed the petition also are Schwab customers who spoke directly to the firm.

See, for me, each of these forced arbitration clauses with class action bans is like the death penalty, so you can see why I’m so happy. 

And speaking of arbitration, we found out that on Wednesday, a federal judge in the Northern District of California (Michelle Lou v. MA Laboratories et al.) ruled that an arbitration clause in an employment contract was “procedurally oppressive and unconscionable,” that “the procedural unfairness was severe and the substantive one-sidedness [because the employer was allowed to go to court while the employee wasn’t] was heavy-handed” and therefore the forced arbitration clause was unenforceable!

It’s been a hard knock life for 35 years.  But not today.

Leaked Memo from the U.S. Chamber of Commerce!

Hey, look what just appeared in our inbox!

Confidential Memo

From: The U.S. Chamber of Commerce

To:  Our Unceasingly Persecuted Members

Re: Those Unhinged State Attorneys General

Date: May 14, 2013

-------------------------------

I don’t know about you, but when I think about “Attorneys General” these days, the word “deranged” comes to mind.  I’m not even talking about Eric Holder.  Stealing confidential info?   Big deal, that’s our specialty!   (He should have asked for our help, am I right?)

I am talking about the AG variety coming out of radical states like South Dakota, where the state AG is wasting taxpayer money “spending a lot of time” (his words) trying to prevent people from being scammed by so-called “bad people” from Canada who are calling and telling people they have an error on their tax returns.  Don’t people know that if a Canadian calls they shouldn’t pick up the phone?

Or Missouri, where the tree-hugger AG has filed a lawsuit against the owners of the Bridgeton Sanitary Landfill for violating environmenal laws just because they leaked hazardous chemicals in the air and black liquid leachate into groundwater, upsetting area residents who “for years have been putting up with the stench of a burning landfill.”  Duh, why don't they just move?

And now, 43 state AG’s are asking the FDA to “place a ‘black box warning’ on labels of the opioid category of prescription-pain relievers to alert pregnant women that use of such drugs may harm infants.”  They say that “the use of opioids ‘has increased at alarming levels,’ triggering more cases of a condition known as Neonatal Abstinence Syndrome.”  Let me just say that the federal government doesn’t need any “help” from the states.  Don’t they know that the FDA is perfectly able to handle any and every little safety hiccup that comes along? 

All I can say is, thank you (in advance) U.S. Supreme Court.  As luck would have it, next week, the Justices are meeting to decide whether to take a couple cases that could – hopefully - once and for all block a bunch of AG lawsuits.  (Well, at least make it far more difficult for any AG to bring one.)  Writes Reuters today:

A federal statute passed in 2005, known as the Class Action Fairness Act (CAFA), aimed to give federal courts jurisdiction over lawsuits involving large numbers of plaintiffs. But it is not clear whether the statute was meant to apply to suits filed by state attorneys general seeking to recover damages for their citizens.

Oh, it will be clear soon enough. Because if history is any guide, we know that SCOTUS won’t hesitate to decide what Congress “really meant to say” even though they forgot to actually write it in the statute.  (Like here.)  Especially if that means flooding the federal court system with even more lawsuits that it cannot possibly handle.  SCOTUS will do anything to protect us, that much we know. 

Continues Reuters:

[The states say that] CAFA makes no reference to lawsuits filed by state attorneys general and that imposing federal jurisdiction on their lawsuits would infringe on their sovereignty. They also argue that as states, they should not be considered "citizens" for diversity purposes under CAFA.

So far, only the 5th Circuit has agreed with corporate defendants. In the price-fixing case brought by the Mississippi attorney general against LCD makers, the court adopted a so-called "claim-by-claim" approach that analyzes who would benefit from a lawsuit, not simply who brought it, when deciding jurisdiction.

In his petition to the Supreme Court, Mississippi Attorney General Jim Hood argues that the 5th Circuit's decision conflicts with Supreme Court precedent.

“This Court has consistently held that a state’s overall interest in the case it has brought in its name is the determinative inquiry, not who may ultimately benefit from the relief sought,” wrote lawyers for Hood's office.

Silly AG.  Precedent?   Don’t they know who’s in charge now?  

Civil Justice - Unattainable Pipedream?

You may have heard that ginger blowhard Donald Trump has voluntarily withdrawn his lawsuit against comedian Bill Maher, which he says he filed because Maher did not follow through on a bet (part of a Tonight Show bit) by paying “$5 million to a charity of Trump’s choice if the businessman provided a birth certificate proving that he’s not ‘spawn of his mother having sex with orangutan.’”  But don’t worry.  Trump’s lawyer says that “the lawsuit was temporarily withdrawn to be amended and refilled at a later date."

To people like Donald Trump, the civil justice system is just another expensive plaything.  But to many everyday people with real grievances and real harm, this system is becoming a castle in the sky.

Yesterday, the Supreme Court “wiped out” an appeals court ruling in favor of consumers who had filed a class action over defective Whirlpool front-loading washing machines, which were emitting bad odors.  The Court said the lower court decision “had to be reconsidered in light of the Supreme Court's 5-4 ruling last week” in the Comcast case where “the court said 2 million subscribers in the Philadelphia area could not sue Comcast as a group.”  And now, Whirlpools’ lawyers say similar claims against other washing machine manufacturers, like GE and Sears, should suffer a similar fate.

But there’s more:

The justices also ordered on Monday that another case pending before the court, involving employee wage claims against Charter One Bank, should be reconsidered in light of the Comcast ruling.”

The Chicago-based 7th U.S. Circuit Court of Appeals ruled that the claims could go ahead.

The bank said there was insufficient evidence to show that there was a unofficial policy to deny workers overtime. The official policy is to pay overtime to anyone who worked more than 40 hours in a week.

The Comcast case, which was decided last week, was another 5-4 decision that continued the Courts “punishing blows to the class action mechanism since the 2011 Wal-Mart gender discrimination loss.”  (Also, don’t forget the Concepcion case, which we just covered again last week.)

About Comcast, Think Progress wrote: 

The Comcast v. Behrens case involved a class of some 2 million plaintiffs in the Philadelphia region who argued that Comcast monopolized the regional market by exchanging territories with competitors — enabling everyone to charge higher prices. Plaintiffs who file class lawsuits must establish that they can prove their injury and damages on a classwide basis, and the majority in this case said they hadn’t met that burden. …

This decision is one of many by the Roberts Court to limit the class mechanism and erode corporate accountability through procedural rulings, but it may be the first in this string in which any justice, let alone two, read their dissent from the bench – an infrequent practice that typically connotes particularly strong disagreement with the majority decision. On this Wednesday morning, Justices Ruth Bader Ginsburg and Stephen Breyer had a particularly large and rapt audience for their scathing oral dissent, with court-watchers there to witness landmark arguments on marriage equality. What the audience got is a lesson on how obscure procedural cases with major implications for consumers are susceptible to manipulation.…

Whether this case’s ruling rejecting the plaintiffs’ methodology for determining damages will have impact on future class questions is not clear. According to the dissenters, this case sets no new precedent and should have no application outside of this particular case. According to lawyers who defend these cases, the ruling will make it still easier for companies to beat back class challenges. The primary take-away is that Comcast found an ally in the Roberts Court, whose five conservative justices remain virulently hostile to the class mechanism. At a minimum, the ruling deprived at least 2 million consumers of the opportunity to challenge an alleged Comcast practice that no one consumer could take on alone.

Given yesterday’s ruling, the Court majority seems to think they did something very precedent setting, indeed. 

Forced Arbitration and the Supreme Court’s Stealth Annihilation of Civil Rights

I do hate taking any focus off Prop 8 and DOMA today. To quote that famous legal scholar George Clooney, “At some point in our lifetime, gay marriage won't be an issue, and everyone who stood against this civil right will look as outdated as George Wallace standing on the school steps keeping James Hood from entering the University of Alabama because he was black.” (“Outdated” being a polite euphemism here.)

However, also this week, there was a Supreme Court argument to which few paid any attention. The case was Oxford Health Plans LLC v. Sutter.  We thought it worth mentioning for a couple of reasons.  First, it is one in a series of cases constituting the Supreme Court’s long march to eradicate class actions, and for that matter, to eradicate access to the civil courts.  (See more in the Center for Justice & Democracy’s new FAQ, “Vanishing Rights and Remedies Under Forced Arbitration.")

Second, because of the 2011, 5-4 decision, AT&T Mobility LLC. v. Concepcion, which upheld contracts with forced arbitration clauses and class action bans, Oxford involves what may be one of the last class action lawsuits by doctors against a managed care company – a device that physicians have made widespread and somewhat hypocritical use of.  But likely, not for long.  Maybe now organized medicine will understand what it means to have one’s legal rights stripped away.    

Here’s how Daniel Fisher at Forbes explained the case:

The Oxford case involves a dispute between doctors and the insurance company over payments. …

In Oxford, the judges must decide whether an arbitrator was out of line by allowing a class action to proceed on behalf of some 20,000 doctors even though there was no provision for class actions in the arbitration agreement between doctors and Oxford. The court seemingly decided this question three years ago in Stolt-Nielsen vs. Animal Feeds, when it held class arbitration couldn’t be forced on parties if they didn’t agree to it. The decision, by Justice Samuel Alito, left open a very slim question over whether under different circumstances an arbitrator could determine that the parties might have agreed to class actions although not in the explicit terms of the agreement.

Court observers believe Oxford will win this.  Of course, the impact of the decision will extend far beyond these 20,000 doctors. Fisher again: “One of the biggest impacts may come in employment law, where class-action attorneys are pressing lawsuits on behalf of thousands and even millions of employees over wages, hours, discrimination and working conditions.”

So, you know those civil rights that Mr. Clooney was talking about?  Just watch.

UPDATE: Wow, as if by clockwork, the Court today threw out yet another class action in a 5 to 4 Scalia-written decision, drawing strong dissents. 

More Class Struggles at the U.S. Supreme Court

Class actions are a critical tool for individual citizens to deter violations of individual rights and corporate misconduct.  They are vital for permitting consumers to gain access to the courts where a company may have acquired a large financial windfall by defrauding large numbers of people.  With corporate fraud and abuse at all time high, perhaps at no moment in history have class actions been more important than they are now. 

But Corporate America has been on an unyielding mission to make it more difficult to bring class actions.   In 2005, after years of lobbying, they got what they wanted: the so-called federal “Class Action Fairness Act,” which tosses (“removes”) into federal court virtually all big consumer class actions, clogging the federal courts and creating unnecessary nightmares for federal judges.  Every consumer, environmental and civil rights group was against CAFA, as well as many state Attorneys General.  

But OK, Congress passed the law.  And by the specific language of the law, Congress instituted a $5 million threshold - the amount in controversy must exceed $5 million. This is supposed to be satisfied by what the named plaintiff in the case pleads when the action is filed.   Congress could have gone lower, but it didn’t. 

Well today, the U.S. Supreme Court heard arguments in Standard Fire v Knowles, which could end up with the Court once again legislating from the bench. (See other examples here, here.) This time, they could rule that despite the law’s language, Congress didn’t really mean what they wrote.

The case was brought by Greg Knowles, who suffered property damage in a hailstorm, and filed a class action, alleging that the insurance company underpaid claims to homeowners by refusing to pay for charges associated with retaining a general contractor - in other words, the kind of case that really has no business being in federal court.  Really.

When Knowles brought the case, he signed a stipulation limiting his, and his class’, recovery to less than $5 million.  (Thus keeping it out of CAFA territory.)  Standard Fire Insurance Company tried to remove the case to federal court, but citing the stipulation, the federal district judge remanded the case to state court.  The Eighth Circuit denied an appeal, but then the Supreme Court, who we already know isn’t a fan of class actions, agreed to hear the case. 

The defense argues that Knowles’ stipulation is invalid based on other restrictions in CAFA, and additionally doesn’t bind class members who haven’t yet been certified or class counsel to the stipulated amount.  The plaintiffs’ say that Knowles has the right, as “master of his complaint” to limit his damage claim.  See Public Citizen and Public Justice’s excellent amicus brief, which also responds to the outrageous position of the National Association of Manufacturers that the Court should just ignore the “amount in controversy” threshold altogether and throw just about every class action into federal court.

While at least one analysis suggests that a strict reading of the text of the Class Action Fairness Act should favor Knowles, it’s not clear that the Supreme Court will agree.  After they heard the arguments, the Associated Press reported that, “Standard Fire seemed to draw support from liberal and conservative justices.”  Though Justice Kagan repeatedly challenged the Standard Fire lawyer, telling him he should go to Congress rather than the court for help.  (Here’s the transcript.) 

The decision is expected in late June, and as before with this Court, we’re hoping for the best but preparing for the worst. 

ALEC’s Phony Crony Capitalism

The American Legislative Exchange Council is the secretive organization of conservative lawmakers and corporations that draft and shop around model bills without identifying that these bills are written by national corporate lobbyists. It’s been called many things lately.  Let’s see.  Union buster.  Voter suppresser.  Concealed weapon and shoot to kill champ. Mistreater of asbestos victims.  Abuser of its charitable status.  

We also like Paul Krugman’s descriptive paragraph:

…ALEC’s claim to stand for limited government and free markets is deeply misleading. To a large extent the organization seeks not limited government but privatized government, in which corporations get their profits from taxpayer dollars, dollars steered their way by friendly politicians. In short, ALEC isn’t so much about promoting free markets as it is about expanding crony capitalism. 

That more or less fits ALEC’s civil justice agenda too.  It’s new priorities are listed in a brand new report called ALEC 2013: Jobs, Innovation, and Opportunity in the States, and when it comes to people harmed or killed by corporate wrongdoing, it focuses on three areas: making it more difficult for people injured or killed by unsafe or defective products to hold manufacturers accountable in court; limiting the availability of “class actions,” so that big companies can more successfully violate large numbers of people with impunity; and limiting lawsuits by people who have been defrauded under state consumer protection laws.  All such laws transfer the costs of injuries away from those who caused them and onto others (like taxpayers, when people are severely hurt and need care.)

In other words, ALEC would like to undermine the tort system’s economic function -  deterrence of non cost-justified accidents - replacing it with new rules constraining what is now a free-market approach to holding corporations accountable for their negligence.  (You can read more about the tort system's important economic function in the 1987 book, The Economic Structure of Tort Law by conservative economic theorists William M. Landes and Richard A. Posner.)

So let's add one more ALEC description - subverter of the free market tort system.

California’s Magic Number Shapes Next Wal-Mart Class Action

Class actions are a vital tool for holding accountable corporations that profit by violating a large number of people.  Emphasis on large number of people.  In other words, if your employer at the local deli withholds wages from you and your fellow “sandwich artists,” you probably don’t have a class action.  In “class action” parlance, that’s called the “numerosity requirement" and usually, the question that worries lawyers is: is the number “large enough”?  Although I should say that by “worry,” I do note that in the view of some (like class action attorney blogger Russell Jackson), this requirement has never gotten the respect it deserves:

As I have lamented in this space before, too many people (courts, lawyers, litigants) treat numerosity as a throw-away requirement.  If there are potentially more than some magic number of claimants (often 40 or 100), some treat numerosity as "established" and can get very upset if a defendant won't concede it.

Whether or not that’s true, one thing’s for sure.  “Large enough” isn’t the only issue to worry about these days. “Too large” has become a front and center concern thanks to the U.S. Supreme Court in the 2011 decision, Wal-Mart vs. Dukes (which we last covered here  and here.)  In that case, national discrimination against female Walmart employees created too large a class.  We said then, “there is no longer any financial incentive for massive employers like Wal-Mart to settle with victims and stop pervasive discrimination like this."

OK we admit, that may have been an over-reaction – but only a little one.  Thanks to a federal court decision last Friday, the number of female employees discriminated against by Walmart California is, indeed, just right.  Yippy!  Writes the San Francisco Chronicle:

A statewide discrimination suit against Walmart on behalf of at least 100,000 current and former female employees has survived its first test in federal court, more than a year after the U.S. Supreme Court dismissed a nationwide sex-bias suit against the retail giant.

The California case is an offshoot of the national class action that was filed in San Francisco federal court in 2001 on behalf of as many as 1.6 million Walmart employees. Like the earlier case, this suit accuses the company of systematically discriminating against women - who, according to the plaintiffs' experts, were paid less than men and promoted less often.…

U.S. District Judge Charles Breyer ruled Friday that the high court had not foreclosed state or regional class actions against Walmart if workers could show they were victims of a uniform policy of discrimination.

He cited the plaintiffs' claims that all California store managers are required to attend training sessions where they are cautioned that women may not be qualified for promotion. Those allegations, if proven, would help to show a "culture and philosophy of gender bias," Breyer said.

More from Bloomberg, here.  So Walmart, numerosity requirement?  Check.  Next stop February, when Judge Breyer will decide if the class will be certified.  We'll keep you posted!

Michigan's Medical Malpractice Nightmare

When it comes to “shake your head in disgust” medical malpractice stories this week, we thought the one about ex-New York State Senator Pedro Espada Jr., convicted Monday of stealing more than $450,000 from his Bronx clinic to fund his cushy lifestyle, couldn’t be beat.  Turns out not only did he steal money, but he “didn’t pay for medical malpractice insurance for more than a month, keeping doctors in the dark as they continued to see patients.” 

But then we read about what’s happening in Michigan, where one doctor committed such egregious malpractice against so many patients - children, no less - that there’s a class action lawsuit against him.  When was the last time you heard of that happening? 

But it gets even worse. The state legislature is responding to this crisis by considering legislation that would not only limit compensation to these patients, but in some cases could provide complete immunity to grossly negligent doctors like this guy.

First by way of background, Michigan is already is suffering a serious patient safety crisis, no doubt due in large part to a number of severe so-called “tort reforms” already on the books, which have been weakening the accountability of incompetent doctors and unsafe hospitals since the 1980s.  These laws include “caps” on damages.  (See some others in Exhibit C in this report.)

So comes along Dearborn-based neurologist, Dr. Yasser Awaad.  What he did was so horrible that People Magazine wrote about it in one of those “medical nightmare” features, so you know its bad:

In February 2006, Shana Reese was a bubbly cheerleader who loved shopping, going to movies and roller-skating with friends. The only wrinkle in her otherwise carefree life was the headaches that had plagued her for nearly a year. So her physician referred her to Dr. Yasser Awaad, a pediatric neurologist in Detroit. After two EEGs, she says, he diagnosed her with epilepsy and told her she couldn't drive, shouldn't go outside and had to quit cheerleading. Worst of all, the anti-seizure medicines he prescribed made her so tired that she became a virtual hermit, shuttered in her bedroom, sleeping away her high school years. "I was on the honor roll," says Shana, now 19, of Taylor, Mich. "But after I started these medications, I was barely passing."

Then came the real shock-after nearly a year of debilitating side effects from the medications, Shana went to other doctors (Awaad closed down his operation in 2007), and one of them explained that her headaches were caused by allergies, not epilepsy. Now she believes Awaad's diagnosis and treatment were all a sham. And she's not alone. She and 254 other former patients have sued Awaad for allegedly misdiagnosing them with epilepsy in order to reap huge insurance payouts for himself and Oakwood Hospital and Medical Center in Dearborne, Mich. (The hospital is also named in the lawsuit.) "A lot of these kids were put in special ed," says Brian Benner, the plaintiffs' attorney, who is seeking damages for emotional and physical distress as well as reimbursement for his clients' medical bills.

But now we learn that legislation has been introduced in Michigan that could “allow other doctors who commit malpractice to walk away with no consequences.”  Said one mother, “I’m worried if this bill passes my son will not have any recourse.” She should be worried:

"The bills would do a lot of things," said Southfield attorney Marc Lipton of Senate Bills 1115-1118. "But at their core, they would raise taxes on the state taxpayers or bust the Medicaid budget, or both. They essentially immunize medical malpractice."

They said that if the bills pass, for example, their case against Dr. Yasser Awaad and Oakwood Healthcare System will unravel. That would leave as many as 2,000 plaintiffs unable to sue the doctor they say was motivated by an incentive contract and greed to misdiagnose them with epilepsy.

They are particularly concerned with SB 1116, which would protect a doctor who says that his or her conduct was an exercise of professional judgment and in the best interest of the patient, which they say that Awaad argued all along.

Not only that, the state itself is doing barely anything about Dr. Awaad.  In January, the state of Michigan signed an agreement with Dr. Awaad “that allows him to keep his license. He'll be on probation for at least one year.”  Oh, and he’s paying a whopping $10,000 penalty and will have his future work reviewed by another doctor.  So Dr. Awaad isn't going anywhere.  What’s more, reports the Associated Press, “The hospital continues to back Awaad, although it agreed in 2009 to pay $309,140 to Michigan's Medicaid program, which had paid for some of the doctor's treatments.”  So the hospital apparantly hasn't learned a thing, either.  Immunity for unsafe health care providers is about the worst thing the state could do now.

We thought this story couldn't get more mind-boggling until we saw the quote in Michigan Lawyers Weekly by Darren McKinney, spokesman for the DC-based American Tort Reform Association, about this legislation, which would protect doctors like Dr. Awaad and strip away rights of the potentially thousands of children who were medical abused by him.  He says, “People are launching multimillion-dollar lawsuits because their alcoholic, chain-smoking, fat relative died in an emergency room … All physicians can do is make the best judgment calls possible.  And many people make terrible decisions for their own health.” 

How do you beat a quote like that?

Robbing Banks - (Customers, That Is ... And Without the Weapons)

As famous Depression-era bank robber John Dillinger once said, “OK, boys; let's go make a withdrawal.” If only bank robberies today were so simple.  Over the weekend, the New York Times ran a fascinating account about how J.P Morgan had “descended on Washington … to obtain special breaks that would allow banks to make big bets in their portfolios, including some of the types of trading that led to the $2 billion loss now rocking the bank.”  Writes the Times,

Several visits over months by the bank’s well-connected chief executive, Jamie Dimon, and his top aides [including Ina Drew, JPMorgan’s chief investment officer who was just forced out the company] were aimed at persuading regulators to create a loophole in the law, known as the Volcker Rule. The rule was designed by Congress to limit the very kind of proprietary trading that JPMorgan was seeking.…

JPMorgan wasn’t the only large institution making a special plea, but it stood out because of Mr. Dimon’s prominence as a skilled Washington operator and because of his bank’s nearly unblemished record during the financial crisis.

I guess they finally got with the program.  And once again, far too many bank customers have been left holding the bag due to banking misconduct.  For example, last week:

TD (“Toronto Dominion”) Bank agreed to pay $62 million to settle U.S. lawsuits accusing it of charging customers excessive overdraft fees.

The Canadian lender's TD Bank unit joined Bank of America Corp, JPMorgan Chase & Co and several smaller lenders in settling litigation over the fees, which are usually assessed when customers overdraw their checking accounts.

TD did not admit liability in agreeing to the settlement, which was reached on May 8th, according to a court filing.

The settlement requires approval by U.S. District Judge James Lawrence King in Miami. He oversees overdraft cases against more than 30 lenders that were consolidated in 2009.

Bank of America's $410 million settlement won final court approval last May, and is the largest to date. Other settlements include $137.5 million by Royal Bank of Scotland Group Inc's Citizens Financial unit and $110 million by JPMorgan. Citigroup Inc and Wells Fargo & Co are among the larger banks that have yet to settle.

In Tallahassee last week, the Florida Supreme Court heard a case brought by a homeowner over the practice of  “rampant fraud by … lenders” over foreclosure practices. Foreclosure cases have been rife with such practices as ‘robo-signing’ by bank employees who often knew little or nothing about mortgage documents they were hired to sign.”  But bank attorney Bruce Rogow argued, “The court has no say in those situations.  There is nothing that can be done, and this has been established for years in Florida.”  Well in that case ...

And speaking of mortgages, earlier this week, “Deutsche Bank AG (DBK) agreed to pay $202.3 million to settle civil claims that its MortgageIT unit lied to qualify thousands of risky mortgages for a federal insurance program in what the U.S. called a ‘massive fraud.’”  Apparently, says the government, “Deutsche Bank and MortgageIT falsely certified that they properly assessed the default risk of borrowers, qualifying loans for insurance by the Housing and Urban Development Department’s Federal Housing Administration. The bank admitted to some of the conduct alleged in the complaint, according to a statement today by the office of U.S. Attorney Preet Bharara in Manhattan. The U.S. sued under the False Claims Act, which permitted it to seek triple damages and penalties. “

Then of course, there’s the federal class action filed in Chicago earlier this month, claiming that “RBS Citizens bank made millions of dollars by taking advantage of customers' math errors: keeping for itself deposits greater than what was written on deposit slips.

Who needs guns?