ThePopTort

Huff Post Repost: America Wakes Up to the Importance of Liability and the Stupidity of “Caps”

Teachable moments can come almost anytime, from anywhere. The recent history of corporate and professional breakdowns and mess-ups should provide a number of them. Bob Herbert raised the issue in a stinging New York Times column recently when he asked, "Will we learn anything from this disaster ...?" BP was his focus but also on his mind was "how the giant financial firms almost destroyed the American economy" and the "devastating mine explosion in West Virginia -- at a mine run by a company with its own hideous safety record ..."

We'll add to that list the Toyota debacle, drug companies marketing contaminated childrens' medications, builders who pushed defective Chinese drywall into thousands of homes, Delaware doctors who covered-up a pedophile pediatrician who raped children, not to mention more and more dangerous hospitals everywhere. What a couple of months.

Keep reading.

Suspicious Health Care: If You See Something, Say Something

If you're ridden the New York City subways lately, you've heard this: “If You See Something, Say Something.”  For those who haven't been to New York City for awhile, that's the NYC Metropolitan Transportation Authority slogan aimed at NYC bus and subway riders, of which there are millions each day.  You’re supposed to keep your eye out for things like people with "inappropriate clothing" (hard to know sometimes), "exposed wiring" (a bit of a giveaway), or just “suspicious behavior” - also hard to recognize sometimes, at least on NYC subways and buses.

But there is one place suspicious behavior shouldn’t be so hard to detect and that is in our health care system, for which patient safety and reducing medical errors is a national priority.  If only.  For example:

Say you are a “a prominent and widely respected orthopedic surgeon” like Delaware’s Dr. James P. Marvel Jr., and you worked with a pediatrician (Earl B. Bradley) whom you knew had improperly touched a child.  That might be reason to “say something.” Or then, when you become incoming president of the Medical Society of Delaware (as did Marvel), and Bradley’s sister tells you his “behavior was deteriorating,” perhaps that would be reason to “say something” (instead of dismissing it as a "family matter.")  Or a year later, when police tell you that Bradley had “kiss[ed] girls and perform[ed] improper vaginal exams,” that would be a good time “say something” (instead of telling police that Bradley was “held in high regard by nurses.”  Bradley was subsequently charged with raping or sexually abusing more than 103 children.)

Or how about this?  Say you are Maryland's St. Joseph hospital investigating one of your doctors, Dr. Mark Midei, and you already know that he implanted heart stents in the arteries of hundreds, if not thousands, of people who did not need them. Would you decide to “say something” only to patients who received these stents within a two-year window (as did St. Joseph’s), or would you tell all patients whom Dr. Midei may have done this to?  (Patients like Frank Ward, who got seven stents from Dr. Midei).

Or, say you are a Harvard-educated specialist in organ transplants at NYU Medical Center (Dr. Thomas Diflo), and you know of an available kidney, but the person had died of uterine cancer and the kidney was allegedly “covered in tumors.”  Would you transplant this kidney into 37-year-old Vincent Liew and then remove it without without “saying something,” like that he had developed cancer?  (Diflo says Liew wanted to keep the kidney in him - Liew subsequently died of uterine cancer.)

 “If You See Something, Say Something” has been working pretty well to catch car bombers.  Stopping medical neglience?  Not so much.  

Heroes and Losers in Congress Yesterday (Party? Irrelevant)

We will start with the bad news.  Delaware Senator Tom “I am a former governor of Delaware and I care a lot about states rights as a recovering governor” Carper (D-DE), apparently cares a lot more about the Big Banks in his state, because he is trying now to force an amendment into the financial reform bill to wipe out state Attorney General enforcement of financial fraud committed by Big Banks.  (I am sure his own AG, Beau Biden, must appreciate this as he recovers from a mild stroke in Philadelphia hospital.  Get well soon, AG Biden.) 

We had heard this might be coming, but really, tone deaf doesn’t begin to describe this proposal.  We’ve written many times about the importance of state AG’s work in financial fraud, consumer protection and many other areas. (Follow links here.) Here’s is the lead, front page article in the New York Times today, about a new investigation started by New York attorney general Andrew Cuomo againt Goldman Sachs, Morgan Stanley, UBS, Citigroup, Credit Suisse, Deutsche Bank, Crédit Agricole and Merrill Lynch, which is owned by Bank of America, “to determine whether they provided misleading information to rating agencies in order to inflate the grades of certain mortgage securities.”  Unlike the fed’s investigation, “this one expands the scope of scrutiny to the interplay between banks and the agencies that rate their securities.” 

And not to leave out that other party, Senator John Cornyn (R-TX) is going to try prevent understaffed and underfunded state AGs from hiring outside private counsel to help them enforce consumer protection laws.  These counsel, by the way, are hired at no cost to the taxpayer and their work often results in states recovering billions of dollars from corporate wrongdoers.  (See more in Center for Justice & Democracy's report, The People's Champion.)

Now for the heroes.  Watch Rep. Bruce Braley (D-IA) in action yesterday ripping apart the executive from Transocean whose company apparently coerced traumatized workers at the Deepwater Horizon rig explosion into signing legal statements that they never witnessed anything.  (See video below, questioning about a minute in.)

Why aren’t there more in Congress like Bruce Braley?  Just askin’.

When Child Sexual Abuse Calls Out for Civil Justice

Today we focus on an issue that is extremely disturbing and sad – the sexual abuse of children.  The civil justice system has become an extremely important vehicle for abuse victims to obtain justice.  It’s something to remember when politicians start talking about enacting legal obstacles that would prevent injured people from getting into court, or limit their compensation  - i.e., “tort reform.”

First, a trial has begun in Portland Oregon against the Boy Scouts brought by a man who, when he was about 12, was sexually abused by a scout leader – a convicted pedophile who admits to doing this.  The New York Times reports that “Scout leaders have been found guilty of sexual abuse crimes in various cases across the country for more than two decades” and now, lawyers say, files show that this went on with the knowledge of national and regional scout leaders.  This was even after complaints of abuse arose, and “sometimes even after they had been convicted of sexual abuse.”  They also say claims of abuse began “as early as the 1920s.”  (The Boy Scouts say “the files demonstrate proactive efforts to stop it.”)

In Delaware, the legislature is considering a bill “that would allow victims of child pornographers to sue their victimizers in civil court and win mandatory minimum judgments of $150,000.”   The bill would also extend the statute of limitations from two to three years, or until “the end of a criminal prosecution or the victim turns 18 -- whichever comes last.” 

Meanwhile in Delaware, fallout continues in the case of Dr. Earl B. Bradley, the pediatrician who allegedly raped or sexually abused 103 children.  The dean of Widener University School of Law is “independently examining how the doctor continued to practice despite at least a decade of questionable behavior.”  In fact, a lawsuit brought on behalf of a 3-year-old girl has now been filed against the Medical Society of Delaware and three Delaware doctors saying, among other things, that they failed to act on warnings of Bradley’s “unprofessional conduct,” including a complaint filed by Bradley’s sister (which the medical society denies).

Speaking of statutes of limitations, this week a hearing was held in Connecticut that would “make Connecticut the fourth state in the nation to eliminate the civil statute of limitations in child sexual abuse cases.”  Some witnesses raised the Roman Catholic Church scandals. 

Speaking of which, The Daily Beast reported on St. Patrick’s Day that in the United States, “more than $1 billion has been paid to victims” with most receiving “$5,000 and $500,000, depending on the length and level of abuse.”  But in Ireland, where a report last year said “abuse in church-run homes in Ireland was ‘endemic,’” the Bishop of Ferns, Denis Brennan, has asked parishioners to help the Church pay for compensation to abuse victims, prompting denunciations from outspoken singer Sinead O’Connor (a victim of childhood violence herself,) who said, “To expect little old ladies and little old men to cough up money for sex abuse scandals is outrageous.”

In a country with a strong civil justice system grounded in notions of accountability, like here in the U.S., it’s hard to imagine such a thing.  We’re just sayin’

Punitive Damages – The Silly Season

There’s been a lot of silly talk about “punitive damages” lately – the kind of damages awarded when hideous misconduct is involved - so we thought this might be a good opportunity to revisit this misused and misunderstood topic. First, some of the silly talk.

Lanny Davis, former Clintonista turned corporate lobbyist (or even worse) gave a Wall Street Journal interviewer his views about medical malpractice, arguing that judges and juries shouldn’t be allowed to handle them.  His argument was based on so-called “facts” like this:

The problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages. That’s when you penalize a doctor for gross negligence or recklessness. … After all, negligence is not an intentional act. It’s an unintentional act. If it is intentional, then it moves into the realm of the criminal, and that’s really not what people are worried about here.

Worried about?  Who’s worried about punitive damages in medical malpractice cases?  They barely exist.  There were six in the entire state court system in the last year the Bureau of Justice Statistics looked at this. SIX!  And no doubt, they were in cases of horrible misconduct or abuse, and hopefully will still be available when and if families file their civil suits against the Delaware pediatrician who (allegedly) raped and sexually abused 103 children. Hopefully, Delaware does not go down the road of capping punitive damages overall, a direction in which South Caroline may be headed right now, even in the face of “runaway Toyotas.”

Here is what else the Bureau of Justice Statistics has to say about the frequency of punitive damages:  Punitive damages were sought in only 13% of the approximately 14,000 general civil trials with plaintiff winners in 2005; Punitive damages were awarded to only 5% of plaintiff winners, and the median overall punitive damage was $64,000! 

Indeed, a couple of stories recently showed just how reluctant juries are to award punitive damages even against huge corporations, let alone doctors.  First, a story we told you about last week concerning the corporate hog farm, the stench of which was impossible to live around.  No punitives.  The second came in a Louisiana verdict Friday against Exxon Mobil.  The case was brought by 16 former employees because "offshore drilling pipes they cleaned over decades contained radioactive contamination.”   While awarding “nearly $1.2 million as compensation for the increased risk they face of developing cancer … jurors declined to award the workers punitive damages.”  This is even after an earlier jury actually did award punitives in a similar case, an award that was later greatly reduced even thought the court found Exxon’s behavior “reprehensible.”

So where exactly is the crisis?  To paraphrase a certain Senate Majority Leader, people are entitled to their opinion about punitive damages, but they’re not entitled to their own facts.  Go sit in the corner, Lanny!

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.

EPA Ruling Doesn’t Hold Water

Attorneys general from New York, Connecticut, Delaware, Illinois, Maine, Michigan, Missouri, Washington, and the Canadian province of Manitoba filed suit against the Environmental Protection Agency (EPA) recently over what they say is an illegal “water transfer” ruling that could contaminate drinking water and harm fisheries.

The AGs argue that a June 9 administrative ruling by the agency could allow the transfer of polluted or contaminated water by ship from one body of water to another. For example, an oceangoing ship might dump salt water into the Great Lakes or a lake’s water could be dumped into a river.

Besides transferring polluted water, the lawsuit suggests the EPA’s rule could allow boats to “easily spread exotic species from one waterway to another,” in such places as the Great Lakes, where large ships routinely dump millions of gallons of “ballast water” into the lakes before taking on loads of raw materials.  (Ballast water is sea water that ships carry for stability and then discharge when their cargo is unloaded. It often contains organisms, larvae, and sometimes even whole fish.)

Isn’t it great to know to know that state AGs aren’t afraid to make waves when government agencies lead us into troubled waters?