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. 

Managed Care’s Costly Greed

One of the most moving stories in Sicko, Michael Moore’s prescient 2007 documentary film on the health care industry (and which occassionally comes up in this blog!), concerned the hideous, needless death of Mychelle Williams. Mychelle died of a entirely treatable infection. She was only 18-months-old. She died because Kaiser, her California HMO, refused to allow the baby to be properly treated at the nearest ER where an ambulance had already taken her, insisting that she be taken to a Kaiser hospital.

Dawnelle sued, but as this was California and all, well…. Wrote the L.A. Times,

The jury awarded Mychelle's single mother $1.35 million in damages for pain and suffering and $3,000 in economic compensation to cover the cost of Mychelle's funeral and burial. The trial judge--believing she was bound by the state's 24-year-old medical malpractice law--then slashed the award for pain and suffering to $250,000, the maximum the law allows.

Today, the Center for Justice & Democracy honors another child, James Adams from Georgia, who experienced a remarkably similar story. When James was five-months-old, he became ill, was in respiratory distress and needed emergency care. But “rather than telling the parents to call 911 or go to the nearest hospital, the [Kaiser] nurse told them they were pre-approved only to go to a Kaiser-affiliated hospital, which was 42 miles away.” His parents tried to speed him there, but “thirty miles into the trip, James suffered a respiratory arrest and his heart stopped beating."

James developed gangrene, ultimately requiring the amputation of his arms and legs. Had James’ parents been told to hang up and call 911, or take him to the nearest hospital, his amputations would never have been necessary.

The Adams’ brought suit, represented by the Georgia Law firm, Malone Law. [The] jury issued a $45 million verdict, $40 million for James and $5 million for his parents. The verdict brought public attention to the issue of managed care and helped change the way managed care is practiced in Georgia. A year after the verdict, the Georgia Legislature passed the Patient Protection Act, which among other reforms, includes a requirement that HMO’s tell patients they are permitted to call 911 or go to an emergency room without pre-approval if they believe their health is in jeopardy.

Today James is a healthy young man who has persevered and plays wheelchair sports. As his attorney, Tommy Malone, told ‘Georgia’s Best Lawyers’ in 2009, “His life has as much or more promise as any other 16-year-old I’ve seen. I know the civil justice system gave him a life, gave him back his dignity.”

Incredibly, in 2005, Georgia lawmakers followed California’s barbaric lead and enacted a “cap” in 2005. But thanks – if you can say that - to another medical malpractice tragedy, another Malone Law case made its way to the Georgia Supreme Court and in 2010, in a 7-0 ruling, the court struck it down. 

But today is James Adams’ day, honored with the CJ&D Medal of Justice. And you can see Dawnelle’s equally poignant story is below.

The Scary Scary World of Eating

Forget The Hunger Games.  Today in America, we're all playing The Eating Games and here’s how it’s played: eat something and hope it doesn't kill you.  Let’s review some of the different ways this game is being played this week.

First came news on Monday that Jensen Farms in Colorado, which was identified as the source of a deadly listeria outbreak last fall involving cantaloupes, killing 30 and sickening 146, may be close to settling.  “Bill Marler, a lawyer for 39 of the plaintiffs, said the settlement also could include a company that manufactures and imports food-processing equipment and a firm that did a safety audit of the farm.” That’s good news (assuming the bankruptcy judge approves it now that Jensen has filed for Chapter 11).  For more on Jensen, the listeria outbreak and the failure of safety audits, see the Center for Justice & Democracy’s recent report, Our Fatal Food Attraction; Regulatory Failures and the Civil Justice System.

Next came news Wednesday that the House Appropriations Subcommittee on Agriculture, "approved funding for the U.S. Department of Agriculture and the U.S. Food and Drug Administration for fiscal year 2013 with no new funding for food safety.”  (emphasis added)  At least the subcommittee didn’t cut the budget, as threatened.  But given the distressing state of food safety - especially when it comes to the FDA, charged with regulating everything besides meat, poultry, processed egg products and catfish while only inspecting facilities every 5-10 years (learn more here), this isn’t great news.  Plus, the FDA is trying to obtain “substantially more resources to help implement the Food Safety Modernization Act," signed into law in 2011, which is supposed to improve things except there’s never been funding to implement it. 

Then we learned,

As part of President Obama's push to streamline regulations on businesses, the U.S. Department of Agriculture plans to let chicken slaughterhouses run production lines faster and with fewer federal inspectors, angering food safety advocates and poultry plant workers.

Under the proposal, production lines would be allowed to move 25% faster, while the government would cut by as much as 75% the number of line inspectors eyeing chicken bodies for defects before the carcasses are packaged for consumption.…

Tony Corbo, at the health advocacy group Food and Water Watch, calls it "a privatization of poultry inspection" because plant employees would be responsible for spotting and removing defective chickens. Consumer advocates said the rising rates of salmonella infection in recent years should give pause to any plans to cut the number of federal inspectors at poultry plants.

Yuck.  On the other hand, “the National Chicken Council” and its $45-billion-a-year poultry industry client loves the idea.

Interestingly, writes the LA Times, “Most poultry plants are located in the South.”  Speaking of which, we also learned this week that federal and state health officials in the South are trying to figure out the source of “what appears to be a multistate E. coli outbreak that recently took the life of a 21-month-old child in Louisiana.”  Ironically, as ABC News points out, “The largest cluster of five sickened people, ranging in age from 18 to 52, is centered in Atlanta [Georgia], home to the Centers for Disease Control and Prevention.” 

My first thought after reading all this was to jump on the vegan bandwagon with President Clinton and Michelle Pfeiffer.   But what good will that do, with lethal cantaloupes roaming around out there?  I’m open to suggestions.

 

Nuclear Power – Federal Preemption’s Hideous Upshot

After the 1979 Three Mile Island nuclear accident – still the worst commercial nuclear accident in U.S. history - there was a widespread attempt by the state of Pennsylvania and others to stop the restart of the undamaged TMI reactor, which had been shut down at the time of the accident.  Understandably, practically no one in the vicinity of that plant wanted TMI to operate again. 

The residents and their officials sued and had a pretty good case.  Company officials created the conditions that led to the accident, then withheld the information about its seriousness from the public, state and federal officials for two days. This was even though the plant was minutes from melting down, which would have spewed lethal radioactivity far and wide. After the accident, company officials lied to the government regarding its causes and covered up facts, which eventually led to the criminal conviction of the company that ran the reactor. Rather than fire anyone, the company rewarded and promoted those who were responsible and who had lied, and then engaged in an ongoing post-accident cover-up of the accident's seriousness. There's more, but that gives you some idea.

Unfortunately, nothing was going to stop the federal government via the Nuclear Regulatory Commission (NRC) from restarting that plant - or the Courts allowing it to happen.  In TMI’s case, this occurred despite the objection of then Governor Thornburgh (who had sued), both U.S. Senators from Pennsylvania, the area congressional delegate, a resolution of the Pennsylvania Senate, countless local officials and community sentiment, which had voted 2 to 1 and 3 to 1 against restart in surrounding county referendums. 

To put it simply, states have almost no power to stop the federal government when it wants to plop down a nuclear plant in some random community. This area of law is entirely preempted by the federal government, at least according to Court decisions (see the TMI decision) that have done their best to eliminate any say that a state, its political representatives or its people might have over nuclear power plants situated in their own backyard.  (The latest example concerns the state of Vermont, where the state has tried – so far unsuccessfully - to block the relicensing of the 40-year-old Vermont Yankee plant.) 

I say “almost” because incredibly, NRC Chairman Gregory Jaczko has broken ranks with the rest of the agency over the licensing of new plants.  Last week, the NRC approved plans to build and operate construction on two 1,100-megawatt reactors at the Vogtle facility in Georgia -  the first new nuclear power plants in the U.S. since the TMI accident – but Jaczko objected.  He wants safety concerns addressed first, the kinds of concerns that arose following Japan's 2011 Fukushima disaster.  (Isn't the incredible thing that  four other Commissioners don't?)  Said Jaczko, “I cannot support issuing this license as if Fukushima never happened …I believe it requires some type of binding commitment that the Fukushima enhancements that are currently projected and currently planned to be made would be made before the operation of the facility.”

A split decision isn’t going to stop Vogtle, of course.  TMI was given the OK to restart despite a split vote - both by the NRC and the Court - back in 1985.  But it’s surely given hope and ammunition to the dozen environmental and anti-nuclear groups who have now sued to stop Vogtle “saying public safety and environmental problems since Japan's Fukushima Daiichi nuclear reactor accident have not been taken into account.” 

The environmental groups have asked the U.S. Nuclear Regulatory Commission to stop construction until judicial review. They also want the U.S. Department of Energy to force Southern's utility Georgia Power to release details about scheduling delays and construction cost overruns.

"The U.S. taxpayers are being kept in the dark about the huge safety and financial risks on the project," said Jim Warren, executive director of NC Warn, a nonprofit environmental group.

I wish them luck, and they're gonna need it given the massive federal preemption of this area of law.  Maybe Fukushima will finally give Courts the reason they need to actually start “second-guessing” the NRC, an agency that has always seen its legal mission to regulate nuclear power as a mission to promote and protect it.

Meanwhile, it should also be noted that that another post-Fukushima legal effort has begun:

Thirty-seven safe-energy groups, including the local Three Mile Island Alert, have submitted a formal petition  to the federal Nuclear Regulatory Commission seeking adoption of new regulations to expand emergency evacuation zones and improve emergency response planning around U.S. nuclear reactors.

Calling on the NRC to incorporate the real-world lessons of the Fukushima nuclear disaster, the proposed rules would expand existing emergency evacuation zones from 10 to 25 miles around nuclear reactors and establish a new zone from 25 to 50 miles around reactors for which utilities would have to identify and publicize potential evacuation routes.

Also sought is a requirement that utilities and state and local governments practice emergency drills including preparing for a natural disaster that either initiates or occurs concurrently with a nuclear meltdown.

You're probably shocked to learn that a petition like this is even needed.  Or that given it’s history, the NRC will probably ignore it (save Commissioner Jaczko, perhaps).  This is what happens when an ultrahazardous and little-understood technology is entirely controlled by greedy corporations and a federal agency –the NRC – that has been almost entirely captured by the industry it is supposed to regulate. 

Where’s the Tea Party when you need them?

Workplace Safety Goes Missing

The other day, Newt Gingrich called child labor laws “stupid.”  We report this not to make a statement about presidential politics, but to show where some people are when it comes to workplace priorities these days.  (Or as David Letterman’s put it, "this is the man we need to lead us into the 18th century.")  

Safety isn’t much of priority for many firms, which makes Newt’s idea especially wacky.  In fact, let’s “Span the World” of OSHA highlights this week (And yes, somebody got hurt.)

For the sixth time, OSHA (that is, the U.S. Department of Labor’s Occupational Safety and Health Administration) has cited a Wisconsin Rapids carbon steel foundry “for overexposing workers to crystalline silica, a known hazardous material.”

In upstate New York, OSHA cited the Wisconsin-based Briggs & Stratton Power Products Group,

for alleged repeat and serious violations of workplace safety standards at its Munnsville manufacturing plant. The lawnmower manufacturer faces a total of $125,000 in proposed penalties, chiefly for mechanical, electrical and fall hazards identified during an inspection begun in June by OSHA's Syracuse Area Office.

The sizable fines proposed in this case reflect both the gravity of these hazards and the fact that several are substantially similar to conditions cited in an earlier OSHA inspection," said Christopher Adams, OSHA's area director for central New York. "It's imperative that this employer not only corrects these latest hazards but also takes effective steps to ensure that they are corrected once and for all."

Down in Hot Lanta, OSHA cited Midsouth Steel Inc., "a general contractor performing steel fabrication and roof decking ... for four safety violations following an inspection that found workers exposed to fall hazards,” specifically, “allowing them to work at heights of 35 feet in an aerial lift without requiring the use of fall protection, exceeding an aerial lift's load capacity and failing to provide fall protection for employees working on a steep pitched roof.”  Three of these violations were “willful,” that is, “committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health."

In Illinois, OSHA cited “Igor Jerema Construction Co. in Buffalo Grove for four willful safety violations after a worker applying stucco at a home under construction in Burr Ridge fell off a scaffold and sustained a fatal head injury in May.”

In Texas, OSHA cited "Houston, Texas-based oil and gas drilling contractor Nabors Drilling USA LP for two alleged workplace safety violations after a worker was electrocuted at a Williston job site in May.”

Then of course, there’s retaliation against whistleblowers who report safety violations:

[OSHA] filed a lawsuit against the Angels With Paws animal shelter in Lakewood on behalf of an employee who was terminated in violation of the whistleblower provisions of the Occupational Safety and Health Act. The employee had complained about safety and health hazards to the animal shelter's management before filing a formal complaint about the hazards with OSHA. The employee was later discharged and then filed a whistleblower complaint with OSHA alleging retaliation by the defendants in violation of Section 11(c) of the OSH Act. OSHA's Whistleblower Protection Program conducted an investigation and determined the former employee's allegations had merit.

Mix that all up with a little bit of anthrax in the workplace (the federal government just settled with the family of Robert Stevens, a tabloid photo editor in Florida who was killed after receiving an anthrax letter in 2001), and voila!  A perfect place to send the kids!

Here’s the whole Letterman monologue. (As we’ve said before, we take no position on this election, but sometimes, well, we just can't resist the comedy.)

Louisiana Rips the Mask Off U.S. Chamber of Commerce Smear

Louisiana's Chief Justice Catherine Kimball is blasting the bogus and destructive “survey” released by the U.S. Chamber of Commerce’s Institute for Legal Reform this week that “ranks” court systems and business climates based on the views of out-of-state corporate lawyers.  Remarkably, the Chamber has chosen to attack Louisiana for years as it has struggled to recover from Hurricane Katrina. The Times-Picayune reports:

"I strenuously object to the ILR's taking the opinions of just a few attorneys who may never have set foot in Louisiana and making pronouncements about our courts," [Chief Justice] Kimball said in a statement released this week. "Whether we're rated highly or poorly, this survey is not a valid measure of the efficiency or fairness of Louisiana's courts." …

Kimball noted a study by Cornell University law and statistics professor Theodore Eisenberg, who said the Chamber survey "lacks elementary social scientific objectivity." The respondents to the survey are not required to have any experience in the states they rank but only need to say they are "somewhat familiar" with a state, Eisenberg said.

"A person can be 'somewhat familiar' with a state's courts because of a single high-profile case or because of a novel or movie based in that state," said Louisiana Supreme Court Justice Greg Guidry, who is on the ad hoc committee. "Those might be honest perceptions, but they have no validity."

Kudos to justices Kimball and Guidry for standing up to this spurious affront to the state of Louisiana, knowing how difficult this is for any judge to do.  Indeed, one of the more outrageous things about these “rankings” is that they take advantage of a courts’ general reluctance to discuss politics.  Judges themselves are barred by ethical rules from saying anything related to issues that might come before them.  It is a longtime problem for judges who have been attacked in increasingly nasty, costly and sometimes deceitful judicial election campaigns (which we covered yesterday) – and by similarly invalid “reports” from other tort reform groups. 

Back in 2000, the New York Times covered the issue of attacks on judges, quoting Georgia Supreme Court Justice Leah J. Sears who noted the difficult challenge for judges: “[T]he target of false accusations in a race for the bench cannot fully respond to them: in addition to the rules forbidding candidates to mislead voters, Georgia, like most states, has rules that bar judicial candidates from discussing how they would vote on issues that might come before them. 'He could pretty much say anything,’ Justice Sears said of [her judicial election opponent], 'and I could not answer. As a judge, I am stuck.’”

Similarly, Eisenberg, who is Professor of Law and Adjunct Professor of Statistical Sciences at Cornell, noted in his withering critique of the Chamber’s rankings: “[T]he Chamber attacks an institution that is not accustomed to defending itself.  State judiciaries lack the resources to respond to the Chamber’s media campaigns and professional norms prevent the judiciaries from fully responding even if they could.”

Speaking of Professor Eisenberg, whom Cornell cites as one of the “foremost authorities on the use of empirical analysis in legal scholarship” (his reputation and work speak for themselves), the Chamber got Humphrey Taylor, Chairman of the Harris Poll, to try to smear Prof. Eisenberg with the suggestion he may have been paid to do his critique – which he clearly was not and has said so. Check out the comments here.

Dare we paraphrase Joseph Welch at this point? (“Let us not assassinate this lad further, Mr. Taylor. You've done enough. Have you no sense of decency, sir?)

"Tort Reform" Hypocrisy that Makes Your Head Explode

As the health care reconciliation package moves to the Senate, Senators from “tort reform” town will again try to amend the bill with limits on patients' legal rights.  Today, at least 12 conservative state Attorneys General will be filing a lawsuit to try to invalidate a portion of the health insurance reform bill that the President signs today.  Big business and their “tort reform” groupies must be thrilled by both developments.  And my head is literally, I mean figuratively, exploding.

First, a big bit of irony.  Aside from the merits of the AG’s case, it needs to be said that no movement hates litigation by state Attorneys General more than the corporate-backed “tort reform” movement.  They have set up entire organizations dedicated to undermining AG's consumer protection role, and sometimes oppose federal legislation largely for the enforcement powers given to state AG’s.

But back to the merits. The AG lawsuits over the insurance mandates are grounded in two parts of the constitution: the Commerce Clause and the 10th Amendment.  Basically the argument is that Congress can only do this mandate if interstate commerce in involved, and it’s not here.  Otherwise, under the 10th Amendment, only the states can act.  Lots of experts believe this is wrong, but OMG! 

Why on earth is there a legitimate Commerce Clause and states’ rights argument here, but not when it comes to undermining traditional, 200-year-old state laws with federal “tort reform”?  The federal proposals would dictate medical negligence standards to courts in all 50 states, interfering with judgments made not only by state officials, but by local juries and judges as to what remedies should be available for injured patients.  Plus, these proposals would not only overturn countless state laws, they would interfere directly with state constitutions. That would include Georgia, whose state Supreme Court just ruled 7-0 that the state’s “cap” on damages violated Georgia’s constitution.  Georgia.  A unanimous decision.

Thanks for letting me vent.

Emergency Room Immunity Picks Up Support

Well, the Georgia Supreme Court has spoken today, upholding a state statute that makes it very difficult for victims of emergency room medical malpractice to get access to the courts.  

Hope these ER immunity laws aren’t a new trend but we fear they might be.  The kinds of malpractice that can occur in an ER is truly horrendous, and many cases involve children.  (See a few examples, here.)  They are also more likely to involve the uninsured.

In its seminal study To Err is Human (which said that that up to 98,000 die in hospitals each year due to malpractice), the Institute of Medicine (IOM) found that ER’s are the hospital location with the highest proportion of negligent adverse events (52.6 percent).  It's well known that this is where people without health insurance often go for primary care.  In another study called Care Without Coverage: Too Little, Too Late, IOM said that uninsured persons with traumatic injuries are less likely than those with insurance to be admitted to the hospital, receive fewer services if they are and are more likely to die.

We also know that litigation improves patient safety, especially in hospitals.   ER immunity- another example of patient safety gone wrong. 

 

Another GM/Chrysler “Bankruptcy Loophole” Update

As promised, we’re continuing to follow the Chrysler/GM bankruptcies (and in particular, developments involving the “bankruptcy loopholes” which effectively immunize both companies from lawsuits should defects in the “old” pre-bankruptcy Chrysler GM/vehicles injure or kill people).  Here are some notable press items from the past few days…

Attorneys General from Connecticut, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Vermont, and West Virginia are standing up for injured consumers, filing objections to the GM bankruptcy last Friday (here, here, here, here).

We hear that other states' AG’s will be coming in to raise similar objections soon.

The Detroit News adds to the ever-growing list of heart wrenching tales about Chrysler/GM defect victims, profiling 20-year-old former athlete, Stevie Beale, who was paralyzed from the waist down due to a faulty seatbelt design in her Pontiac Bonneville.

Lynn LoPucki, a professor and bankruptcy expert at UCLA Law School, who is quoted in the article, said, "They should assume liability for their cars. Instead, they give people a very good reason to not buy their cars”

The Atlanta Journal-Constitution and Macon Telegraph both tell the tragic story Nell and Jimmie Davis whose Jeep Cherokee flipped over, crushing the (defective) roof of the vehicle, and killing Jimmie just eight days before the couple’s 48th wedding anniversary.  Nell sued Chrysler, but like so many others, her case is unlikely to go anywhere. “They got all their taxpayer bailout money and now they’re not responsible for anything?” she said.

In the News

Class action suit says taking care of luggage is not British Airways’ “bag.”

On average, Americans spend more time (16 hours a year) watching “often misleading” drug ads on TV than talking with their primary care doctors.

Unlike efforts in the aviation industry, patient safety measures have yet to take flight.

Massachusetts AG seeks to foreclose a “foreclosure-assistance” scam.  Other federal and state officials are doing the same.

Meanwhile, Atlanta may soon join the list of big cities (like Baltimore; Buffalo, Cincinnati, Cleveland, and Memphis) in taking reckless mortgage lenders to court.

“Bullish on America”?  Merrill Lynch has agreed to “settle a class-action lawsuit by employees who lost money investing in Merrill stock through their retirement plans.” 

Congratulations, you’ve just won a free vacation—not! (says Texas AG’s lawsuit).