ThePopTort

A Terrible Medical Malpractice Proposal About Which Conservatives and Liberals Can Agree

Whether you’re liberal or conservative, live in a Red State or a Blue State, are a strict constitutionalist or a judicial activist (whatever that means these days), there’s one thing on which everyone should agree – abolishing civil juries and replacing them with state-run government agencies is a dumb idea.

Take the terrible proposal that’s been circulating in Georgia and Florida, which is the brainchild of a Richard L. Jackson, the Chairman and CEO of Jackson Healthcare.  He is proposing to repeal the right to jury trial for all patients injured by medical malpractice in these states, replacing juries with a new government agency consisting of political appointees and government bureaucrats pulled directly from the medical and business establishments. These government officials would be given power to write and approve “compensation schedules” - so much for an eye, so much for a leg, so much for a dead child - irrespective of any patient's actual needs.  How nice for Mr. Jackson.

Mind you, this idea comes just two years after the Georgia Supreme Court unanimously ruled that a simple cap on non-economic damages was unconstitutional, saying "the determination of damages rests 'peculiarly within the province of the jury.'"   So along comes this idea, which would wipe our juries and cap everything.   

And besides, who believes a government takeover of the medical malpractice system is a good idea? 

Who believes that instituting a state-imposed rigid, dictatorial system of compensation schedules and liability standards for doctors, replacing what is now a free-market approach to holding health care providers accountable, is a good idea? 

Who believes that it makes sense in this fiscal climate to create an entirely new governmental agency to handle what are a relatively small percentage of medical malpractice cases in our court system? 

Who believes that a system in which catastrophically-harmed children likely will be compensated at well below their actual losses, forcing families onto taxpayer-funded Medicaid, is a good idea?

See what I mean? Conservatives should be disturbed by this idea as much as progressives. Unless you happen to be an industry CEO, I suppose. 

For more on this, check out the Center for Justice & Democracy’s new study: Georgia’s Patient Compensation System – A New State Agency That Will Harm Patients. 

Don’t Fool with Consumer Watchdog, and Other Election Observations

If you’re one of the 18 to 29-year-olds who made up 19 percent of voters this year (a higher percentage youth vote than in 2008! Yay!), you are mostly likely unfamiliar with an annoying 1970s Chiffon Margarine TV commercial that goes “It’s Not Nice to Fool Mother Nature!”  But whether you’re 18 or 85, that universal “don’t fool with me” sentiment seems to have marked a number of election contests this year, even besides the obvious (i.e., women, gays and pot!) 

Let’s start with the California’s insurance industry. Don’t mess with the 1988 insurance reform initiative, Proposition 103, and the consumer group behind it, Consumer Watchdog. Billionaire Mercury Insurance Chairman George Joseph just wasted $17 million on his Proposition 33, which would have repealed Prop. 103’s provision preventing insurance companies from charging more to drivers who had a lapse in insurance coverage. This is about what Joseph spent almost exactly two years ago on basically the same ballot measure. Yet despite being outspent by Joseph 70 to 1 (the Consumer Watchdog coalition had only about $275,000), Prop 33 went down!  Next up for Consumer Watchdog: the health insurance industry! 

Speaking of the insurance industry, seems like they’re a little nervous that their influence-peddling in Congress may be in need of some new targets. Reports the National Underwriter’s website,

Rep. Judy Biggert, R-Ill., was defeated for re-election, a victim of redistricting. She headed the Subcommittee on Insurance, Housing and Community Opportunity of the House Financial Services Committee, and was expected to be a big player on insurance issues. She shepherded the [National Flood Insurance Program] bill through its tortuous, five-year path to a long-term extension. The bill was finally enacted in July. It is unclear who will succeed her as chair of the insurance subcommittee. Biggert was also expected to be a key player on regulatory issues as well as in gaining passage of A Terrorism Risk Insurance Act extension.  Joel Wood, senior vice president of congressional affairs of the Council of Insurance Agents and Brokers, called Biggert's defeat, “extremely disappointing to the insurance industry.”

I can see why they’re anxious.  Between escaping payment for climate-related floods and getting bailed out for terrorist attack losses, this industry clearly needs some friends.  

And speaking of elections, here are a few other interesting outcomes:

• The U.S. Chamber of Commerce finally got their wish in West Virginia, ousting consumer-friendly AG Darrell McGraw who had held office for 20 years, “perhaps marking the start of major changes to West Virginia consumer protection litigation… [McGraw] has won the state more than $2 billion in consumer protection lawsuit settlements against pharmaceutical, coal and tobacco companies and unscrupulous lenders, according to his office.”
• They also got supermajorities in states like Indiana, Wyoming and Tennessee (both Houses), North Carolina (one House plus Governor) and won back majorities in states like Wisconsin. (See more here and here.) But the good news is that state houses flipped the other way in Colorado, New York, Maine, Minnesota, and Oregon (where there had been a tie), with apparent supermajorities in California and Illinois!  And that awful New Hampshire Speaker who pushed through that horrendous anti-patient medical malpractice bill (which we covered here) is no longer speaker since the Democrats took over!  Let’s hope a repeal is on the way!

As far as Supreme Court races, here’s some of what we know:

• Three Florida Supreme Court justices retained their seats in retention votes despite organized campaigns by conservative organizations to oust them.
• Iowa retained Justice David Wiggins, the Supreme Court Justice who had ruled on same-sex marriage with a 54% retention rate.  (This is in counter to two years ago when 3 of Wiggins’ colleagues were thrown out by voters.)
• In North Carolina, incumbent Supreme Court Justice Paul Newby won over appellate Judge Sam “Jimmy” Ervin IV thanks to an unprecedented and disturbing amount of outside money from business interests and conservative groups. 
• In Mississippi, attorney Josiah Dennis Coleman won over pro-consumer attorney Richard Phillips due to nasty outside money:  "The out-of-state special interest group Law Enforcement Alliance of America ran advertising in north Mississippi blasting Phillips as a trial lawyer who had filed a lot of lawsuits against business. …Phillips said the Virginia-based LEAA was trying to buy a seat on the court. He said such groups can put out negative ads that distort the truth without disclosing who are the individuals paying for the ads."

It’s not nice to fool Mother Nature, or with the truth.

The Legal Hammer Falls on International Victims

We don’t want to jump to conclusions, but this could be a fairly ominous day for victims of misconduct or recklessness by U.S. corporations - at least the ones that wreak havoc abroad.  

First comes word that a federal judge has dismissed and sent back to Italy a lawsuit filed in Miami – this one by 1,000 Italian businesses - against Carnival Corp. for damages caused by the fatal capsizing in January of its Costa Concordia cruise ship.  Notes Associated Press, “Still pending in the U.S. are several lawsuits filed on behalf of hundreds of passengers on the Concordia.”  If these cases get sent back as well, good luck to those victims obtaining justice in a country not particularly known for it (and I’m not just talking about criminal justice).  Aside from no civil jury trials or common law, Italy’s civil justice system has severe procedural defects, very limited discovery and disclosure, no expert testimony, loser pays, limited appeal rights, or to put it mildly, “[c]ivil litigation in Italy is burdensome, costly, and not plaintiff friendly.”  (That’s a quote from former New York Law School student, Rene DuBois, in his paper for the Center for Justice & Democracy during the last school year.)

Second is today's oral argument before the U.S. Supreme Court in the case of Kiobel v. Royal Dutch Petroleum, which “concerns the torture of Ogoni leaders in Nigeria, but at stake is the future of the law under which this case was brought, the Alien Tort Statute.”  See our coverage here.

The United States has the best and, under some circumstances, the only laws available for human rights survivors to obtain some sort of redress and monetary compensation and to hold abusers financially accountable - provided the wrongdoing violates customary international law or a U.S. treaty.  If a U.S. corporation, like an oil company headquartered in the U.S. but operating abroad, has assisted a government that has committed human rights abuses, the ATS has been available to hold that company accountable.  See more here.  Without the ATS, these victims will be forced to litigate their cases in court systems that are as bad as Italy’s or worse. 

As Vincent Warren, executive director of the Center for Constitutional Rights, put it,

The United States stands at a crossroads. At its best, our nation has played a crucial role in championing human rights throughout the world and pioneering human rights law. At its worst, it has abandoned its lofty ideals in the name of realpolitik and supported dictators and policies that were responsible for horrible abuses.

We’re about to find out just how much less brightly America's beacon may shine.

An Open Letter to Sanjay Gupta and America

Dear Dr. Gupta and Everyone,

 Why do some doctors order unnecessary tests? (I know PopTort fans, you’re probably thinking “Unnecessary tests?  I can’t get my HMO to cover tests that I actually need.”  Whatever.)  I know this question is on your mind, Dr. Gupta.  Just last week, you lamented in a New York Times op ed, “It is a given that American doctors perform a staggering number of tests and procedures, far more than in other industrialized nations, and far more than we used to.”  You say that many of these tests are unnecessary because they are “meant less to protect the patient than to protect the doctor or hospital against potential lawsuits."  Your theory is supported by one survey of orthopedic surgeons, who claimed that "24 percent of the tests they ordered were medically unnecessary."

It being Olympic summer and all, I thought it might be a good idea to add up the points on both sides of this debate and see who’s winning.  Here’s the question, as best put by Dr. Fred Hyde, Clinical Professor in the Department of Health Policy and Management at Columbia University’s Mailman School of Public Health:

“In contravention of good medical judgment, the basic rules of Medicare (payment only for services that are medically necessary), threats of the potential for False Claim Act (prescribing, referring, where medically unnecessary), physicians will, as a group, act in ways which are possibly contrary to the interests of their patients, certainly contrary to reimbursement and related rules, under a theory that [1.] excessive or unnecessary prescribing and referring will insulate them from medical liability,” (i.e., “defensive medicine”), or 2. they make more money by prescribing more tests thanks to “fee-for-service” medicine, which underlies our entire health care system.

First up, the “defensive medicine” side.

Let’s discuss the “survey of orthopedic surgeons cited by you, Dr. Gupta.  This was a “survey” of 56 (according to American Academy of Orthopaedic Surgeons’ on-line summary of presentations) or 72 (according to the Academy’s news release) Pennsylvania orthopedic surgeons presented at the Academy’s annual meeting in San Diego on February 16, 2011.  The Center for Justice & Democracy requested Dr. Hyde to review this study and here’s what he found:

• In searching for the actual paper containing these findings, it turns out that there is no paper, much less one peer reviewed prior to publication.  Instead, this was a podium presentation by a medical student, accompanied by a faculty supervisor.
• The methodology, according to news and public relations reports, was this: to ask the ordering doctor whether or not he or she was ordering a test for reasons having to do with “defensive medicine.” However, the moderator of the presentation suggested other possible explanations for tests.   He noted, for example, that MRIs and other imaging studies are frequently ordered “unnecessarily” for reasons other than malpractice avoidance. 
• No mention was made of the potential for fraudulent billing if the MRI studies ordered were not for the benefit of the patient.  So here’s the question:  Were the physicians really uninterested in the results of the MRI tests, and willing to risk sanction?  Or did they “check the box” to “show support” without realizing that it might indicate a potentially fraudulent act? 

We can guess.  In fact, there are no “studies” of defensive medicine that do not almost entirely rely on anonymous physician “surveys” to establish its widespread existence.  This is true even for studies that try to put dollar figures on the health care costs involved.  That includes the Congressional’ Budget Office, which found a paltry reduction in “defensive medicine" - totally 0.3% in overall health care costs - should the nation enact a panoply of Draconian “tort reform” measures.”

These physician “surveys” are usually conceived by organized medicine lobbying for “tort reform.” In 2003, the General Accountability Office condemned their use as extremely unreliable. The GAO also noted that “some officials pointed out that factors besides defensive medicine concerns also explain differing utilization rates of diagnostic and other procedures. For example, a Montana hospital association official said that revenue-enhancing motives can encourage the utilization of certain types of diagnostic tests, while officials from Minnesota and California medical associations identified managed care as a factor that can mitigate defensive practices.”  Moreover, “According to some research, managed care provides a financial incentive not to offer treatments that are unlikely to have medical benefit.” 

So, I don’t know what you’d score the “defensive medicine” side of the argument.  Let’s be generous and give them a 1.

Next up - the profit motive side. 

Perhaps today’s front-page, 3,000-word article, New York Times article, “Hospital Chain Inquiry Cited Unnecessary Cardiac Work,” says it all. 

It all started with a complaint by a caring nurse to “chief ethics officer of the hospital giant HCA,” about cardiologists who were “performing heart procedures on patients who did not need them, putting their lives at risk.”  Found the Times:

[T]he nurse’s complaint was far from the only evidence that unnecessary — even dangerous — procedures were taking place at some HCA hospitals, driving up costs and increasing profits.

HCA, the largest for-profit hospital chain in the United States with 163 facilities, had uncovered evidence as far back as 2002 and as recently as late 2010 showing that some cardiologists at several of its hospitals in Florida were unable to justify many of the procedures they were performing. … In some cases, the doctors made misleading statements in medical records that made it appear the procedures were necessary, according to internal reports. …

[T]he documents suggest that the problems at HCA went beyond a rogue doctor or two.…

Cardiology is a lucrative business for HCA, and the profits from testing and performing heart surgeries played a critical role in the company’s bottom line in recent years.

What’s more,

In a recent statement, HCA declined to provide evidence that it had alerted Medicare, state Medicaid or private insurers of its findings, or reimbursed them for any of the procedures that the company later deemed unnecessary, as required by law. … HCA also declined to show that it had ever notified patients, who might have been entitled to compensation from the hospital for any harm.  Some doctors accused in the reviews of performing unnecessary procedures are still practicing at HCA hospitals.

The Times also notes that HCA has had a history of committing Medicare fraud, already paying the Justice Department over $1 billion in fines and repayments. 

That physicians profit by prescribing tests should be nothing new to regular PopTort readers (see,e.g., here, here, here).  Nor should the fact that real academic studies demonstrate the utter failure of “tort reform” measures to have any impact whatsoever on doctors’ testing behavior.  Nor should the fact that when physicians decide to be honest about it, they admit that eliminating the risk of lawsuits has no impact whatsoever on their testing behavior.  Nor should the fact that when cornered at congressional hearings about whether they are actually billing Medicare and Medicaid for supposedly unnecessary “defensive medicine” tests, they stumble into an embarrassing heap of denial.   (See video below)

So, profit motive?  We'll give it a perfect 10.

And that will do it for us this summer, PopTort fans.  We’ll be back after Labor Day, but hopefully today’s extra long post will provide you with a lasting summer treat to get you through the dog days of August.  And Sanjay Gupta, please pay attention.  You’re almost there.

Lawyers Guns and Money

I’m sure I’m not the first person to think of the late great Warren Zevon when news broke of the unfortunately-timed civil lawsuit just filed by one of the victims of the Aurora shooting. The primary case “center[s] on the safety and security procedures at the theater” but some experts say, according to Bloomberg, that such claims may not be successful “because such cases require some proof that a company or organization acted unreasonably, and knew, or should have known, about the danger posed.”  Of course, Aurora CO wasn’t completely unaware that insane individuals were capable of mass murder.  In the 1990s, a guy walked into an Aurora Chuck E. Cheese and killed four people.  And of course, there was Columbine, only 17 miles way.  But this was a movie-theater first, and a judge may very well throw it out.

But we’re a lot more concerned about the various “get out of jail free” cards for which the National Rifle Association has lobbied so hard around the country, all for the purpose of ensuring that the gun industry – as well as “shooters gone rogue” - are never held responsible for any of the consequences of this nation’s gun violence.   For example, in 2005, President George W. Bush signed into law the NRA’s Protection of Lawful Commerce in Arms Act, which shields the gun industry from liability when the acts of a gun dealer or manufacturer contribute to gun violence.

Earlier this year, we covered the civil liability protections buried in Florida’s "Stand Your Ground" law.  At the NRA’s behest, these laws had been pushed around the country by the American Legislative Exchange Council (ALEC), which is holding its annual convention in Utah as we speak.  Goodness knows what those BFF’s, the NRA and ALEC, will come up with next. 

But no wonder they’re concerned.  Given that the gun industry is virtually unregulated in the country, the threat of legal liability is probably the best way to change the way gun manufacturers and distributors make their products available to the public.  This was all explored in a 2003 newsletter from the Center for Justice & Democracy.  At the time this was written, the “Protection of Lawful Commerce in Arms Act” had just passed the House, so there was still hope of stopping it.  But alas, things got decidely worse.  Here what CJ&D observed back then.

After cities began filing lawsuits against gun manufacturers in 1998, Colt Manufacturing Co. announced that it would stop selling most handguns to the civilian market due to liability concerns. Facing the threat of future multi-million- dollar awards and the prospect of having its insurance canceled, Remington recalled 200,000 air rifles and air pistols within days of settling a case brought by a man who became paralyzed after a Remington air rifle suddenly discharged during a hunting trip even though the safety release was pushed into the “OFF” position.…

As Professor Stephen P. Teret, director of the Center for Gun Policy and Research at Johns Hopkins University, wrote in the Washington Post, “When needed regulation of products is thwarted by politics, health advocates turn to the courts for help. …Some argue that legislation is the only proper, legal route for protecting the public’s health. But litigation is designed to remedy injustices, and there should be no question about the injustice of a product that needlessly injures and kills tens of thousands.”

That would be guns.

Emergency Room Negligence and the Children Who Die

For years, pollsters for the “tort reform” crowd (like Frank Luntz) have tried to show support for their agenda with manipulative polls that “sharply overstate support for the measures in question,” in the words of one expert.  After all, imagine how creative pollsters must be to insist that American want to relinquish their own constitutional rights while aiding wrongdoers who recklessly injury or kill people, not to mention increasing the bottom line of extremely rich insurance companies with money that should go to families. 

But here’s the thing. Polls like this never really make clear who is being injured and whose rights are being eliminated, like men, women and children who suffer (through no fault of their own) brain injury, amputation, paralysis, quadriplegia, cancer and other devastating injuries - or death.  Imagine if these pollsters put the question this way: is it fair to strip away the legal rights of a parent who brought their sick (but easily treatable child) to an emergency room, only to have that child die due to the hospital’s recklessness?  

If you caught the Today Show this morning, or read Jim Dwyer’s story in the New York Times, or Maureen Dowd’s Sunday New York Times column, you learned about the tragic story of 12-year-old Rory Staunton.  A cut in his arm apparently led to an infection that would have been treatable with antibiotics.  Instead, it turned lethal because both his pediatrician and the ER staff (which sent him home) failed to notice it - even though his blood tests showed it. 

Think this is an anomaly?

 When Isabella Beck was two-years-old, she began to experience watery eyes and a cough.  Her mother called the pediatrician who recommended Benadryl. Isabella’s mother gave her Benadryl but after three days, she was still not feeling better so Isabella’s mother brought her to the pediatrician.  The pediatrician checked her eyes and ears.  He did not take her temperature but diagnosed her with a sinus infection and sent mother and baby home with a prescription for Amoxicillin.  After two days, Isabella began vomiting.  Isabella’s mother called the pediatrician who recommended that the antibiotics be stopped and advised Isabella’s mother that she should be given fluids.  The next day, Isabella was still vomiting and her mother again called the pediatrician.  Somebody in the office told her mother that it was the stomach virus and to continue her on fluids.  Isabella’s mother called a second time that afternoon explaining that the baby was still vomiting and now warm to the touch.  A staff member in the pediatrician’s office recommended that the baby be taken to the hospital. Isabella was taken to the ER by her mother.  Isabella cried the entire time she waited in the emergency room and after about an hour and a half, a physician came to examine the child.  Her temperature read 103 degrees.  She was given medications for her fever and vomiting and was sent home.  The next day, Isabella was no longer crying but, she was lethargic.  By the evening her legs appeared purple-ish and she had a temperature of 104 degrees.  She was rushed to the ER.  A doctor later came out and explained to her parents that her heart stopped for twenty-five minutes and a test showed that she suffered severe brain damage.  Isabella was in a coma. Two days later, she was declared brain dead.  At the time she got sick, Isabella’s dad Danny was on his third mission hauling fuel in Iraq.  Wrote the New York Post in 2007,

A Queens firefighter who raced home from Iraq to find his 2-year-old daughter in a coma blames her subsequent death on a hospital emergency room that sent the sick child home without tests or treatment a day before her condition became fatal.

Heartbroken Daniel Beck and his wife, Leticia, buried their daughter, Isabella Victoria, last week.

The family is furious at a doctor in the ER at the well-respected Long Island Jewish Medical Center in New Hyde Park who they say missed a chance to save their baby.

Eight-month-old Kendyll Bliss was dehydrated from a cold. Her parents, Kim and Ryan, took Kendyll to a Florida emergency room.  Unbeknownst to Kim and Ryan, the ER did not have any medical equipment on hand to treat an infant. The ER nurse tried unsuccessfully for two and a half hours to get an adult IV needle into Kendyll’s body. After waiting yet another hour, the doctor arrived and used an adult IV to get into Kendyll’s jugular vein. Once the port was inserted, the nurse had orders to let one bag of fluid drip for half an hour and then hook up a second bag and allow it to drip throughout the night. After the first bag was empty, the nurse came in to change the bag. The nurse first squeezed the bag several times. Kendyll screamed out and Kim and Ryan then watched as air bubbles traveled through the line that was inserted into their daughter’s body. Kim and Ryan tried desperately to alert someone in the ER, but their pleas were ignored. Immediately, Kendyll turned blue.  Despite more pleas that something was terribly wrong with their child, the nurse did not try to resuscitate her or call anyone for help. Kendyll passed away due to an air embolism that went into her brain and caused her to go into cardiac arrest.   See here about this heartbreaking story. 

Two-year-old Owen Gardner of South Dakota had flu-like symptoms.  His parents  brought him to their local doctor and they were sent home with suppositories. They returned to the physician when Owen's vomiting and diarrhea continued, causing him to become extremely dehydrated. The doctor did not recommend that the child be brought to the local hospital for fluids, but rather that his parents take him to a facility more than two hours away. Upon arrival at the hospital, Owen was admitted to the pediatric unit, where there was no specialist available. A nurse repeatedly tried and failed to administer an IV; a specialist did not see the child for over an hour. Owen stopped breathing and was wrongly intubated in his stomach, cutting off the flow of oxygen. Owen died two hours after his arrival at the hospital.  See more here.

Seven-year old Jessie Geyer of Antioch, CA died on Halloween night 2003 from a common bacterial infection, after a local hospital failed to take a blood culture that would have revealed the cause of her high fever and the extreme pain in one of her legs.  Wrote the LA Times,

According to autopsy results, Jessie died of septic syndrome caused by a bacterial infection that is commonly treated with antibiotics. Days earlier in another emergency room, Michelle said, a doctor had missed the problem.

Michelle and her husband, Mark, wanted to know what had happened. They got comforting words from their pediatrician and from the hospital where Jessie had been treated. But they didn't get the answers they were after, so they decided to sue.

The Antioch, Calif., couple figured they would have their pick of the Bay Area's finest malpractice lawyers.

Instead, four lawyers turned them down-- not because they viewed the case as a loser, but because the most it could win was $250,000. A fifth, attorney Jeffrey Mitchell in San Francisco, finally took the case, and in May he filed suit in Contra Costa County, alleging negligence by a pediatrician, a local hospital and an emergency room doctor who treated Jessie. The defendants declined to comment.

The Geyers say that what almost shut them out of the courthouse is the $250,000 limit on noneconomic damages, such as pain and suffering, set by a landmark 1975 California malpractice law.

This is exactly what the research shows.  Caps like the one in California make cases involving children, whose damages are largely non-economic in nature, economically impossible for attorneys to bring.  Insurance defense attorney Robert Baker, who defended malpractice suits for more than 20 years, told Congress in 1994, “As a result of the caps on damages, most of the exceedingly competent plaintiff’s lawyers in California simply will not handle a malpractice case … There are entire categories of cases that have been eliminated since malpractice reform was implemented in California.”

Cases involving the death of children are the #1 example of this.  Poll that fact, Mr. Luntz.

P.S. New York does not have a similar cap, despite the best efforts of the medical and insurance lobbies to enact one.  The Staunton's case is going forward.

Visit NBCNews.com for breaking news, world news, and news about the economy

Operating Rooms Draw Fire

Did you know that “fear of hospitals” is an actual medical condition?  It’s called “nosocomephobia.”  Richard Nixon had it, they think. (After refusing to get a treatment for a blood clot in 1974, he said, “if I go into the hospital, I'll never come out alive.”)  I know what you’re thinking – Richard Nixon was a well-know paranoid.  But as Joseph Heller put it in Catch 22, “Just because you're paranoid doesn't mean they aren't after you.”  In fact, if you’re nosocomephobic, stop reading now because this story might really set you over the edge.

Yesterday, the FDA felt the need to hold a webinar called, “Practical Advice for Preventing Surgical Fires--Safety Strategies from the Front Lines,” to try to stop the “estimated 550 to 650 surgical fires per year in operating rooms in the U.S.”  Yes, hundreds of people are catching fire in operating rooms each year.  Reporter Aisling Swift for the Naples News had a truly unnerving story about this problem over the weekend.  Here are a few key excerpts: 

Frank Komorowski of East Naples was lying in a Naples operating room, under the sleepy twilight of anesthesia, when he heard a nurse yelling.

"Oh, my God! He's on fire!" Komorowski testified, recounting her screams, in his deposition. "And the next thing I remember is … smelling my skin burning."

Komorowski, then 68, suffered second-degree burns to his shoulder, chest and neck, and his hair was singed after he underwent surgery on March 19, 2008, to insert a pacemaker at NCH Downtown Naples Hospital.…

"The bottom line is they set the man on fire," Komorowski's attorney, Mark Weinstein of Weston, argued during a Collier Circuit Court hearing last week. "It is universally acknowledged this does not happen in the absence of negligence."

The cause apparently had something to do with an alcohol-based antiseptic, DuraPrep, which “caused an electrical cauterizing device to ignite.”  The hospital tried to weasel out of responsibility, of course, pointing the finger at the surgeon who conveniently wasn’t a hospital employee.  (Let’s hope they took that FDA webinar and learned something.)  Fortunately, the judge didn’t agree, finding “adequate evidence to prove the hospital was liable no matter what caused it.”

Usually, oxygen is blame for these fires, writes the Naples News.  For example:

• In November, a 29-year-old Florida woman was having surgery to remove three cysts on her head when her face erupted in flames at an Okaloosa County hospital. The cauterizing tool erupted in flames after being fueled by her oxygen mask.
• In June 2011, a surgeon was performing a tracheotomy at a New York hospital when his electronic scalpel, which sparks, set off the oxygen supply and prompted a minor explosion that caused severe burns on a 52-year-old patient's neck and chest.
• In May 2011, a Pennsylvania jury found a nurse anesthetist negligent and liable for $250,000 in damages for injuries to a 72-year-old woman who suffered second-degree burns to her face and chest, and burns to her larynx, trachea and lungs, in September 2006. Testimony showed he administered extra oxygen but didn't tell the surgeon, who activated an electrocautery device that ignited the surgical drapes and prompted a flash fire at a Pennsylvania hospital.

But alcohol is sometimes to blame, too.  For example:

An alcohol-based antiseptic that wasn't given time to dry caused 72-year-old Catherine Reuter to suffer second- and third-degree burns to her upper airway, chest, throat, face, and ear, during a tracheal operation in Washington, D.C., in December 2002. She was sedated for seven weeks due to pain and suffered multiple infections until she died two years later, never returning home. Her story and photos are featured on her daughter's site, surgicalfire.org, which she created to raise awareness.

"Every time I hear these stories, it breaks my heart because they are 100 percent preventable," Catherine Reuter Lake of Maryland told the Daily News. "I'm not out there to demonize hospitals, but they need to be held accountable.

"I was so horrified over the last images I had of my mom," she said, adding that the retired kindergarten teacher wasn't angry, but wanted her daughter to raise awareness. "She said they just weren't educated ... She said if it could happen to me, it could happen to other people ... That's the only thing you can do for me so more don't suffer."

Challenging the Barbarity of Caps

In honor of Memorial Day, here are a few patriotic factoids.  The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.  What has happened to our nation's respect for civil juries?

We’ve covered the tragic case of former student Ashley Zauflik, who was the victim of an out-of-control school bus, which mowed down about 20 kids.  Ashely lost her leg, and a jury awarded her $14 million.  But because the bus was owned by the school district and not a private company, an outrageous and frankly cruel law was triggered, which caps total compensation to her at $500,000.  Yesterday, the judge in the case was forced to cap her award at this amount, even though the school district has an $11 million insurance policy.  The judged practically begged the state Supreme Court to do something, saying,

“There is no dispute that the circumstances of this case create an unfair and unjust result” Bucks County Judge Robert J. Mellon said while upholding the liability limit on school districts and municipalities. A “reevaluation of the constitutionality of the statutory cap on damages … is necessary.”

Pennsylvania, step in line.

Florida’s high court is now considering that state’s non-economic damages cap in medical malpractice cases.  The case, “McCall v. U.S., concerns 20-year-old Michelle McCall, who bled to death while giving her birth to her son” due to the negligence of the medical staff. Among the damages awarded in that case was $2 million in non-economic damages, including compensation for her son’s pain and suffering. The cap reduced this to $1 million.

“The Florida judiciary has already determined in the past that damages caps violate the state constitution because they don’t provide access as everyone has understood it,” says Robert Peck, the lawyer representing McCall’s estate in the case. “Access means full redress for the injury received. So a person who receives $1 million when full compensation should have been $2 million did not have that access.”

Meanwhile, in April, the Missouri Supreme Court upheld that state’s wrongful death cap, but a new challenge has now reached the court.  At the end of March, writes Tort Prof Blog,

[T]he Missouri Supreme Court heard arguments on whether that state's 2005 cap on non-economic damages in medical malpractice cases violates the state constitution.  In 2011, a jury decided that physicians failed to act when an unborn child showed signs of distress in the womb.  The child was born with cerebral palsy and will not progress beyond the mental capacity of a three-year-old.  The jury awarded $4,821,000 in total damages.  Of that amount, $1.45M was non-economic and was reduced to $350,000 pursuant to the cap.

And in Mississippi, a local judge ruled in April that Mississippi's cap was unconstitutional, noting, "The issue is not whether the limits imposed under the statute are reasonable. Rather, the issue is whether the Legislature has the authority to impose any limits, reasonable or not."  He said the framers of the constitution created the civil justice system and put the courts in charge of it.  Meanwhile, the state Supreme Court is already considering the constitutionality of the cap, after the question was certified to it by the U.S. Court of Appeals for the Fifth Circuit in a case against Sears.  In that case,

Lisa Learmonth sued Sears, Roebuck and Co. after she was in a collision with one of the company's vans near Philadelphia, Miss., in 2005.

A federal jury in 2008 determined Sears was liable for Learmonth's injuries and awarded $4 million in damages. The parties agreed $2.2 million was for non-economic damages, and the federal judge reduced that part of the damages to $1 million.

Hey, if you want an excuse to escape the relatives this Memorial Day weekend, just tell them that you want to bone up on a very patriotic topic, and then go here.  Much healthier than eating hot dogs.  Happy reading!

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?

Cutting Class – Actions, That Is

Yesterday, Allstate filed a federal lawsuit in New York State to recover $796,000, alleging that bunch of doctors and medical groups fraudulently billed them.  According to Allstate’s press release, “Since 2003, Allstate has filed thirty-nine fraud lawsuits in New York, seeking nearly $204 million dollars in damages.”  How nice for them.  Did you ever notice how freely doctors and insurance companies run to court to sue each other?  (See also, for example, the 2003 class action brought by New Jersey doctors against Allstate and other auto insurers for underpaying them after treating accident victims, and other examples here.)

At the same time, insurers and doctors are running around the country trying to limit consumers’ and patient’s rights to sue them when they kill, harm or rip-off everyday people.  (See more about how the American Legislative Exchange Council helps them do that - including wiping out consumer class actions - in Media Matter’s analysis of ALEC’s “Tort Reform Boot "firmly on the neck of justice" Camp, and other gems.)  And unfortunately, some courts have been helping.  Look what a struggle it’s become in Florida, for example. 

Yesterday, a case was argued before the Florida Supreme Court to determine whether a class action can even move forward against notoriously-rotten payday lenders.  Like many businesses these days, these companies have stuck into their contracts fine-print arbitration clauses, which try to waive consumers' rights to file class-action lawsuits.  This has become the norm since the practice was recently upheld by the U.S. Supreme Court in a 5-4 decision, AT&T Mobility LLC. v. Concepcion.  In trying to deal with this horrendous  case, the wonderful Paul Bland of Public Justice argued what’s obvious to everyone, i.e., that the only way an individual case like this could ever be brought is by banding together with others in a class action.  Said Bland,

“If this arbitration clause had said, you have to go to Alaska to bring claims, that would be unenforceable. If the arbitration clause had said that the filing fees for the arbitrator would be a million dollars, there’s no doubt that that would be unenforceable.  And this was a trial court’s finding that there was essentially no reasonable avenue other than a class action.”

Notably, the lower Florida courts agreed with him, with Circuit Judge Elizabeth Maass calling the class action bad "unconscionable."  Writes the Miami Herald, “Bland said the decision did not invalidate prior U.S. Supreme Court rulings saying consumers must be able to effectively vindicate their rights. ‘A procedure that ends up gutting the rights effectively is enough to render the clause unenforceable.'"

Meanwhile in California, Honda Motor Co. was able to get a $10,000 small-claims judgment reversed, a case it had lost in small claims court for overstating the fuel economy of the Civic hybrid.  The plaintiff in this case, a Los Angeles woman, had rejected a class-action settlement and filed in small claims instead. Other Civic hybrid owners followed, rejecting the settlement and also filing small claims.  But car owners are finding that these cases are difficult to prove in small claims court (although they are requiring a lot of attention and resources from Honda). 

Now what?