ThePopTort

New insurance study: the most important document you’ll need in 2012!

Today, the Center for Justice & Democracy, through its project Americans for Insurance Reform (AIR), has published the most important study you’ll need next year.

Over the last few months, the insurance industry has set the stage for a new liability insurance crisis in America. The timing couldn't be worse. Rates for businesses will skyrocket and litigation will be falsely blamed, once again. That means trouble for the civil justice system. Big trouble.

AIR’s study, written by J. Robert Hunter and Joanne Doroshow, is called Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America (Hunter is Director of Insurance for the Consumer Federation of America, former Texas Insurance Commissioner and Federal Insurance Administrator.  Doroshow is Executive Director of the Center for Justice & Democracy).  This study is the first definitive expose of 35 years of manufactured insurance crises. So far, there have been three. They document how this industry is now creating a fourth. We are certain that when this new "hard market" starts to grip the nation, Repeat Offenders will be essential to counter the industry's attacks on the tort system.

It's an important study, which is why it made the front page of the Huffington Post today!

AIR is calling on federal and state officials to take immediate steps to prevent a new crisis, which the industry has already instigated, specifically calling for:

• Meaningful insurance data disclosure to state authorities, allowing officials examine the financial health of the industry and the civil justice system.

• States to enact stronger regulation and oversight of the industry and to repeal anti-competitive laws.

• Congress to repeal the federal anti-trust exemption and at a minimum, the new Federal Insurance Office (FIO) to review the impact of the McCarran-Ferguson Act on consumers. 

We're not kidding.  This is essential reading!

Terror, Torture and Mixed Up Justice

There’s a large and uncomfortable amount of news this week about terror and torture victims trying to seek justice but not always ending up as they’d hoped.

The big US story is the wrongful death settlement by United Airlines and a security firm with the family of Mark Bavis, who was killed on 9/11 as a passenger on United Fl 175.  “The family was the lone holdout among the thousands that either accepted money from the $7 billion Victim Compensation Fund or settled their lawsuits.”  Read his brother Mike’s statement here, where he describes the devastating impact that federal preemption can have preventing litigants from getting answers in cases like this.  Yet the family did make progress.  He says,

Due to our family’s refusal to settle before this time, our attorneys at Motley Rice LLC have been able to conduct the most comprehensive investigation to date regarding how the airlines and airport security companies failed so miserably on 9/11 and in the days, weeks and months leading up to 9/11. Motley Rice’s attorneys have recovered ten times more information than the 9/11 Commission in regards to the failure of the aviation industry. 

On a somewhat similar note in Britain, it was announced that the government will compensate relatives of victims of 1972’s tragic “Bloody Sunday,” when “British troops fired without warning on unarmed demonstrators” and then were exonerated “amid unfounded accusations that the troops had been attacked by Irish republican terrorists.”  Fourteen people died that day, and 13 were wounded.  But “one family immediately announced its intention to refuse any restitution, saying there were no circumstances under which they would ‘ever accept money’ for the loss of their brother William, 19. The idea of taking money from the Defense Ministry, they said, was ‘repulsive.’”

Meanwhile, there won’t be any justice anytime soon for the Abu Ghraib prison victims, again thanks to federal preemption.  On Wednesday, the U.S. appeals court in Virginia dismissed lawsuits "claiming employees of two defense contractors conspired to torture and abuse Iraqis at the Abu Ghraib prison near Baghdad and at other locations. … One lawsuit was filed by 72 Iraqis while the other was brought by four Iraqis.”  Unfortunately, the court said the claims were pre-empted by U.S. national security and foreign policy law.

On the “suits recently filed” side of the ledger, Ernesto Zedillo, who was president of Mexico from 1994 to 2000, may have a bit of a problem at his new job teaching international studies at Yale as director of its Center for the Study of Globalization.

The Associated Press reports that Zedillo “has been sued in Connecticut for alleged crimes against humanity in connection with the 1997 killings of 45 people in a Mexican village, a lawsuit that he called slanderous.”  The lawsuit says that “Zedillo was responsible for the massacre by paramilitary groups in the village of Acteal, in the southern state of Chiapas, and tried to cover up the killings. The plaintiffs, who include people injured in the attack and relatives of some of the dead, are seeking total damages in the millions of dollars, one of their lawyers said.”

The case was “filed under the federal Alien Tort Claims Act, which allows people alleging violations of international law to sue in the United States, and the Torture Victims Protection Act, which permits damages for torture and illegal killings abroad.”

There are also reports that Iranian president Mahmoud Ahmadinejad has been sued for $10 billion in a class action lawsuit for “terror and torture ... on behalf of an Iranian woman living in Los Angeles whose brother was tortured to death by the regime of Muslim leaders in Iran."  Ahmadinejad apparently isn’t responding and “a default judgment would be the next step in the case, which was brought under the Alien Tort Claims Act and the Torture Victim Protection Act of 1991.”

What a world.

Does Evil Lurk in West Virginia?

“Evil” has been making a comeback in the news lately.  First, there was the arrest of former Boston mob boss James "Whitey" Bulger, described by former associate Johnny "Red" Shea as “an evil man" who’s “done tons and tons of evil.” He’s a suspect in 19 murders.  Then, there’s the judge who sentenced Bernie Madoff to 150 years in prison, who this week explained his sentence by calling Madoff’s crimes “extraordinarily evil” in that he ruined many lives.

Which brings us to Massey Energy whose treacherous mine conditions caused the deaths of 29 miners and whose officials blamed it all on the federal Mine Safety and Health Administration (MSHA), which kept finding safety violations, as well as “unions, lawyers and President Obama.”

Now we discover that the company was using a “dual accounting system … in which safety problems and efforts to fix them were recorded in an internal set of books, out of sight of state inspectors, and off the official books that the law required them to keep.”

See more here and here.

But it is true that the government’s hands are hardly clean here.  Writes the New York Times, "the mining authority knew about the conditions at the mine — in the year before the blast, the mine received more orders to shut down unsafe areas than any other coal mine in the country — and had stopped short of applying the toughest measure of closing it.”   More about the government’s responsibility here. 

We have to sympathize with residents of West Virginia lately, whose civil justice system - the last line of defense against misconduct - is also being gradually weakened.  Last week, for example, the state Supreme Court upheld a severe “cap” on compensation for West Virginia patients harmed by medical negligence  - although fortunately, it ruled yesterday that a mandatory arbitration clause in nursing home contracts was unconscionable and unenforceable.  So at least that’s something . 

But it’s gonna take a lot more to make up for what this state has been through lately. 

Rental Car Dangers - From Microbacteria to Fuel Tank Defects

About a year ago, the Today Show ran a piece about the filthy interiors of rental cars and ever since, I’ve been carrying around Wet Wipes.  I tend to rent cars a lot.  Now I realize that rather than Wet Wipes, I should be carrying around an auto mechanic.

At the New York Times automobile blog, Wheels, Christopher Jenson has been doing some great reporting about how rental car companies sometimes don’t comply with safety recalls – or at least, they think it’s OK to decide on their own whether a recall is important enough to respect.

Yesterday, the blog discussed actual letters from the major rental car companies, who have “told the National Highway Traffic Safety Administration that in some cases they continue to rent vehicles that have been recalled if they believe the problem is not serious,” or “what a Hertz executive called ‘a true safety recall.’”

Of course, there is no such thing.  A safety recall is a safety recall.  NHTSA spokesperson Karen Aldana says, “All safety recalls resulting from defects present an unreasonable risk to safety and we believe it is inappropriate to suggest that some defects are not risky enough to require repair.  For the safety of the motoring public, all recalled vehicles should be fixed promptly.” 

Jenson writes,

The safety agency began its investigation last year, shortly after the Federal Trade Commission was asked by two consumer groups, Consumers for Auto Reliability and Safety and the Center for Auto Safety, to order Enterprise Rent-A-Car to fix recalled vehicles before renting them. Enterprise has admitted in a California court that its failure to fix a Chrysler PT Cruiser was responsible for the deaths of two California women when their car caught fire and crashed.  The F.T.C. has yet to act on that request.

That would be the tragic case of Jacqueline Houck and her sister, Raechel (which we covered here and here), who died because Enterprise failed to carry out a safety recall of the car they rented. 

Earlier, Jenson reported,

The American Car Rental Association wants the government to adopt a new system that would designate some recalls as so serious that a vehicle should no longer be driven while others would allow cars to be driven and repaired later. …

Rosemary Shahan, the president of Consumers for Auto Reliability and Safety of Sacramento, said in an e-mail that the proposal would “perpetuate rental-car roulette and allow rental car companies to get away with renting out vehicles that are so unsafe they are being recalled.”

The idea of a two-tier system amounts to a license to rent cars with “with unrepaired safety defects,” Clarence Ditlow, the executive director of the Center for Auto Safety, wrote in an e-mail.

Senator Charles E. Schumer, Democrat of New York, has asked the Federal Trade Commission to explain why rental car companies are allowed to rent out vehicles that have not been repaired even though auto dealers may not sell a new vehicle if a recall is pending. He has also said he plans to introduce a bill this year that would put rental-car companies under the same restriction as new-car dealers.

In California, a bill is moving through the legislature that would make California "the first state to require car rental companies to pull vehicles out of service when they receive notice of a safety recall.”  The rental car companies believe this “unfairly targets them” arguing “the matter should be handled at the federal level so they do not have to deal with a patchwork of rules.”

How fortunate for them that currently, the federal agency, NHTSA, “lacks the authority to force rental companies" to recall cars.  Where's the Today Show when you need them?

 

As If Breast Cancer Patients Don't Have Enough to Worry About

This week, the Food and Drug Administration issued its most serious type of recall - one involving “situations in which there is a reasonable probability that use of these products will cause serious adverse health consequences or death” - for a medical device that it had already approved called Axxent FlexiShield Mini.  This is a radiation shield that was implanted in women with breast cancer, a device that was supposed to protect them but for the 30 women who participated in a study to see how well it worked (yes, after the FDA had already “approved” it), it left their breast tissue and chest muscles riddled with hundreds of heavy metal tungsten particles. 

As the New York Times wrote in March:

Women participating in a study of patients with breast cancer have been inadvertently left with hundreds of tiny particles of the heavy metal tungsten in their breast tissue and chest muscles. The particles came from a device used during surgery. The device has since been recalled.

It is not known if the metal is dangerous to health because relatively little research has been done on its long-term effects in the body. But it shows up on mammograms, and may make them difficult to read, an especially troubling effect for women who have already had breast cancer and worry about recurrences. (The particles resemble calcium deposits, which can indicate cancer.)

About 30 women have been affected, according to the manufacturer of the device that caused the problem, the Axxent FlexiShield Mini. The women are in a quandary. At least one, fearing that the tungsten could cause cancer or another illness, is trying to decide whether to get rid of the particles by having her breast and its underlying tissue removed in a radical and disfiguring operation.

Good for the FDA for taking this step, especially since the manufacturer’s initial response to this back in March when it recalled the product was, “No patient injuries were reported, and we believe this issue has no impact on the safety and efficacy of the radiation therapy delivered by the Axxent System, as the Flexishield Mini is a radiation shield.”

Apparently, neither its manufacturer nor the F.D.A. could explain what went wrong with the device begging the question, how the FDA ended up approving this pad in the first place?  The Times explains:

The Axxent FlexiShield Mini had been cleared by the drug agency in June 2009 in an abbreviated process used for devices that are considered equivalent to products already on the market. That process, known as 510(k), takes less time than the procedure used to approve a new device, and it generally does not require tests on humans.

The episode casts doubt on the safeguards for people who participate in medical research and on the Food and Drug Administration’s ability to protect the public from flawed medical devices.

Unfortunately, the public and political leaders (e.g., Congress and state politicians who think it’s a good idea to immunize drug and device companies from any liability) still seem to have no clue as to how flawed the FDA approval process really is:

The first patient to take part in the study at Hoag said the events had shattered her faith in the vigilance of the drug agency, the hospital and her surgeon, who she said enthusiastically talked her into participating, emphasizing how convenient it would be to finish radiation treatment before she even woke from surgery.

“I do work, so it was appealing,” said the woman, a 57-year-old psychologist with a busy practice who did not want her name used for privacy reasons.

..

It never occurred to the first patient that the equipment might be faulty, she said, because she knew that it had been approved by the F.D.A. She also trusted the doctor and hospital to ensure that the study was safe.

“I had this illusion, like most people do, that the F.D.A. wouldn’t allow this to happen,” she said. “I definitely feel like a lab rat now.” …

“I went to my oncologist,” she said. “He just was beside himself. He just said: ‘You’ve got to get this out of you. It’s toxic. You can’t have this in your system.’ ”

He urged her to have a mastectomy and recommended a surgeon, who told her that to remove the tungsten, he would have to remove her entire breast and some of the chest muscles.

“I would have a dent in my side,” she said. “He said he didn’t really want to move ahead until there was more information because it would be so disfiguring. That made me physically ill. I’d kind of gotten myself used to the idea of having a mastectomy, but not being disfigured.”

Who could possibly blame her and others for now suing the hospital and the manufacturer for causing this kind of torture and mutilation?

Medical Industry Prescription: Apply Generous Amounts of Sunlight Disinfectant

Supreme Court Justice Louis Brandeis wasn’t a doctor.  But he once wrote about the “wickedness of people shielding wrongdoers & passing them off (or at least allowing them to pass themselves off) as honest men,” which led him to coin one of the best medical phrases ever: “sunlight is the best disinfectant.”

You may recall that one of the big medical malpractice “reform” ideas coming out of Obama’s deficit reduction commission is to immunize from liability doctors who following practice guidelines, even if grossly negligent.  As consumer and patient groups pointed out:

[C]linical practice guidelines should never be the legal basis for determining whether or not patient harm was the result of negligence.  There is already a general recognition that conflict of interest and specialty bias are ongoing problems in the development of clinical practice guidelines.  If medical and specialty societies are allowed to participate in writing  guidelines they know will be exculpatory for their members, conflicts of interest and bias will escalate.

Boy, were we on target.  Check out the new information uncovered in the Archives of Internal Medicine about cardiovascular guidelines, thanks to financial-conflict disclosures published as appendices to each guideline:

More than half of the people serving on cardiovascular guideline-writing committees between 2004 and 2008 had financial conflicts, according to a March 28 study that sheds new light on the pervasiveness of financial ties to industry among the experts who make the clinical recommendations that shape medical care.

Of nearly 500 people working on 17 guidelines issued jointly by the American College of Cardiology and the American Heart Assn., 56% reported financial relationships with industry related to the clinical area covered by their committee. Eleven of the 17 guideline panels had a majority of members disclosing conflicts of interest such as receiving pay for research, speaking, consulting, advising or owning stock in companies that could be affected by the committee's recommendations.

In some cases, researchers found, the panels were dominated by experts with financial conflicts.…

"The dominant way of dealing with conflicts of interest has been disclosure, but there is an increasing trend toward not just disclosure [but] dealing with conflicts," said Dr. Kirkpatrick, assistant professor in the Division of Cardiovascular Medicine and associate fellow in the Center for Bioethics at the University of Pennsylvania.

Well let’s hope.  Lest you think, however, that the “disinfectant” known as “sunlight” has been adopted by the medical industry as a great new treatment option, think again.  Sens. Ron Wyden (D.-Ore.) and Charles Grassley (R.-Iowa) have introduced legislation to find out what individual physicians earn from Medicare after the Wall Street Journal and Center for Public Integrity found out how some docs were gaming Medicare to increase revenue.  Seems like the American Medical Association does not want anyone finding out, saying it “opposes releasing physician-specific Medicare billing records” claiming “such data could be misused to erroneously assess quality of care.”  They mean, for example, when the Wall Street Journal and Center for Public Integrity were able to mine though a limited about of Medicare-claims data, and “identified an Oregon neurosurgeon, Vishal James Makker, who had an unusual propensity for performing multiple spine surgeries—as many as seven—on the same patients.” 

On that note, for your entertainment pleasure, here’s one of our favorite docs courtesy of Alec Baldwin from the film Malice, about a doctor who may not be gaming the system, but he sure doesn’t want anyone asking about his treatment decisions.  A bit of a “God Complex,” shall we say (although contrary to the laws of sunlight, he didn’t want that speech on the record).

UPDATE: NY Times Maureen Dowd also cites Malice in her column today!

Damn the Regulations, Full Speed Ahead!

It’s official.  We are officially back to the Bush era!

One of our favorite PopTort themes is that consumers are kept safe from the havoc inflicted by corporate miscreants by both tough regulations and the deterrent effect of legal liability.  President George W. Bush did a great job turning federal regulatory agencies into apologists for corporate wrongdoing.  Take for example, the Occupational Safety and Health Administration (OSHA), which we covered in 2009  when the Washington Post wrote, “political appointees ordered the withdrawal of dozens of workplace health regulations, slow-rolled others, and altered the reach of its warnings and rules in response to industry pressure.… The result is a legacy of unregulation common to several health-protection agencies under Bush.”

We were hoping this would not also be the legacy of our new President, but it looks like the U.S. Chamber of Commerce has finally had its way with him.  Today, the President took to the pages of the Wall Street Journal  announcing his new Executive Order that will lead to eliminating regulations whenever possible, it seems - like, for example, if businesses can argue that health and safety regulations will cost jobs.  Salon writes:

The argument for less regulation reads somewhat antithetically. Obama is quick to point out how regulation places "unreasonable burdens on business — burdens that have stifled innovation and have had a chilling effect on growth and jobs." His executive order promises to eliminate "absurd and unnecessary paperwork requirements that waste time and money" as well as "avoid excessive, inconsistent and redundant regulation."

But in the same breath, he recognizes how a lack of government oversight nearly caused the next Great Depression.

But I know, everything IS about jobs now (thanks to a ruined economy caused by lack of regulation).  And if you don’t think jobs will be used as any excuse to endanger the public’s health and safety, take a look at the title for Thursday’s House Judiciary Committee hearing: Oversight Hearing on "Medical Liability Reform - Cutting Costs, Spurring Investment, Creating Jobs"  (Center for Justice & Democracy’s Ex. Dir. Joanne Doroshow will be testifying as the only witness for the D’s, by the way!)

I guess one could make the argument that a weakened tort system, which leads to more dangerous hospitals, will create the need for more prosthetics manufactures, physical therapists and round the clock nursing care.  But I’d rather not go there.

Resolving Injustices - Pigford and Cobell

There is a bit of good news coming out of Washington.  Yesterday afternoon, President Obama signed a good law that appropriates money to resolve two huge past governmental injustices – and somehow both the House and Senate passed this with no threatened filibuster.  (Please note this historic moment because we may not see another for years.) 

First is the $1.25 billion Pigford II settlement, something we’ve covered before (here, here.) Basically, during the early 1980s, African-American farmers began a movement to try to force the USDA to stop discriminating against black farmers over price support loans and other payments.  Timothy Pigford, a North Carolina farmer, sued the USDA.  While some farmers then settled, tens of thousands were unfortunately unaware of the case.  This new law ensures some 80,000 other farmers will be compensated.

Second, "[t]he Cobell settlement [named for lead plaintiff Elouise Cobell], worth $3.4 billion, is for American Indians whose land trusts and oil and gas rights were mismanaged by the federal government, which withheld royalties.”

This one took awhile, as well. Seems “the financing was stripped in the Senate over concerns about spending and lawyers’ fees in the American Indian settlement. [Senate Majority Leader Harry] Reid was able to appease Republicans by finding offsetting spending cuts.”  I must say that the attorneys’ fee issue seemed quite the red herring considering that the court overseeing the case will decide these fees.

President Obama noted,

“Elouise’s argument was simple: The government, as a trustee of Indian funds, should be able to account for how it handles that money. And now, after 14 years of litigation, it’s finally time to address the way that Native Americans were treated by their government. It’s finally time to make things right.”

Cobell, wearing a bright red outfit, seemed pleased, and smiled when the president shook her hand after signing the settlement into law.

Deficit Reduction and Medical Malpractice

Nothing personal against former Sen. Alan Simpson and former White House Chief of Staff Erskine Bowles, but have they been spending too much time at the medical marijuana clinic?  You may have heard that they just released their deficit reduction recommendations.  It's a mess.  Mike Lux, who worked with Bowles in the Clinton White House, called it, “one of the worst policy documents I have ever seen.” 

So, can’t say I was too surprised to read this recommendation to “reduce the deficit”: 

“Enact comprehensive medical malpractice liability reform to cap non-economic and punitive damages and make other changes in tort law.” 

Whatever that means.  Ok, let’s imagine what that means –let’s say it’s all the things that the Congress Budget Office envisioned when they found a paltry 0.5% in overall health care cost savings, i.e., such extreme and cruel restrictions on the legal rights of patients that no single state in the nation has imposed all of them collectively on patients in their states, and many have been found unconstititional.

Sure, let’s reduce the deficit by ensuring that patients who have been brain damaged, blinded, mutilated or rendered paraplegic as a result of medical negligence cannot obtain compensation from the culpable party, become destitute and are forced to turn to Medicaid to survive.

And sure, let’s reduce the deficit by forcing Medicare and Medicaid to lose funds that the government would otherwise be able to recoup as a result of litigation.  (Yes that is right, whenever there is a successful medical malpractice lawsuit, Medicare and Medicaid can both claim either liens or subrogation interests in whatever the patient recovers, reimbursing the government for some of the patients’ health care expenditures.).

And sure, let’s reduce the deficit by serverely weakening the system’s deterrence and accountability function, so we have more injuries and deaths and added health care costs.

Am I asking too much for a little common sense here?

Sprinkles of Civil Justice (With a Post Election Flavor)

So what do the civil courts have in store for us, post mid-term elections?  Looks like a dash of new state hurdles here, a pinch of federal obstruction there.  Let’s take a look at a few smidgens!

First, Oklahoma's new Attorney General-elect, Scott Pruitt, apparently accepted thousands of dollars in campaign donations from poultry industry employees, for which he was heavily criticized – and for good reason.  As soon as he was elected, he announced that he would consider stopping the state’s lawsuit against the poultry industry for causing “widespread pollution” even though the state “has spent millions of dollars arguing the case, and it is awaiting a judge's ruling.”

Also, in an article earlier this week, New York Times reports that the new Governor-elect of Wisconsin, Scott Walker, said “he planned to remove all ‘litigation, regulation, excessive cost’ barriers to businesses (declaring Wisconsin, on election night, ‘open for business!’)."  In other words, no accountability for wrongdoing whatsoever!  How attractive!  (Hope you’re paying attention toxic polluters, makers of unsafe children’s products, dangerous commercial truckers and hazardous equipment manufacturers.)

On the federal judiciary front, Ann Woolner writes for Bloomberg, 

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices...

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

And when it comes to one of the hottest environmental issues today – greenhouse gases - a new study by “DB Climate Change Advisors (DBCCA), a New York-based eco-investment advisory unit of Deutsche Bank Group” concluded that:

The failure of federal cap and trade, the return of Republican control in the U.S. House and California's plans to move forward on that state's greenhouse gas law will probably inspire a new wave of lawsuits moving the climate change battle to the courts,

"It is probably inevitable that people are turning to litigation to fill the void left by the lack of legislation, and it is possible that the threat of court action will in some cases galvanize legislators to take action where before they had simply avoided the issue," DBCCA analysts say in the report, titled "Growth of U.S. Climate Change Litigation: Trends and Consequences."

And finally, the decision as to who will be Alaska's next Senator moves to the courts, with Tea Party trial lawyer Joe Miller now suing to invalidate a lot of Sen. Lisa Murkowski’s write-in ballots. 

Whoa, back up a minute.  Did we say "Tea Party trial lawyer"?  You betcha we did!  Specializing in all kinds of accidents including medical malpractice cases, Mr. Miller writes on his web site:

Have you been injured? If you have suffered serious injury as a result of an accident, you have probably been contacted by an insurance adjustor. Remember, insurance adjustors are in the business of saving insurance companies money, not helping you. Insurance adjustors are very skilled in what they do...

Every day, Insurance Companies convince accident victims that their injuries are insignificant and deserve little compensation. You should always contact an attorney before resolving your case.

Couldn't have said it better ourselves, Joe.