ThePopTort

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).

Drug Company Immunity Remains Status Quo in Michigan Unless Legislature Acts

Cheers can still be heard around the country since yesterday when the US Supreme Court refused to immunize pharmaceutical companies from liability when their drugs harm or kill people.  Luckily, state legislation like the bill introduced in Georgia last month, may also benefit from this ruling (although rumor has it that bill was DOA anyway).

However, in Michigan the mood is slightly more somber as the Wyeth vs. Levine ruling does not overturn their state's drug industry immunity law they've had on their books for over a decade.  This is the only such law in the country right now.

Last year, legislators tried to repeal the 1996 immunity law, but the legislation was held up in the Michigan Senate.  Last week, a trio of bills (HB 4316, HB 4317 and HB 4318) came out of the Michigan House of Representatives with the express purpose of fixing the legislation.  In light of yesterday’s Wyeth ruling, many of the arguments made against repealing this law suddenly no longer have any weight but the legislature will still have to act to restore Michigan citizen’s right to access the courts should they be harmed or killed by dangerous drugs.

Georgia Flirts With Michigan's Big Mistake

Although a lot of politicians have economic stimulus on the brain right now, jump-starting our stalled economy shouldn't come at the expense of consumers' rights.  Which would be exactly what Georgia would be doing to its citizens should a recent piece of legislation get passed. 
 
Senate Bill 101 introduced last week and endorsed by Governor Sonny Purdue would "limit liability for certain drug and medical device manufacturers and sellers."  Which is merely a nice way of saying that a company that markets an unsafe drug or device should be given complete immunity for causing deaths or injuries, as long as the FDA approved the product.  This law supposes that the FDA is both capable and willing to ensure the safety of all products it regulates – which many including those within the FDA itself doubt.  Ah, peanuts anyone?

Regardless we have seen time and time again  how lawsuits have dissuaded companies from continuing to market an unsafe product.  And lawsuits have also had a tremendously beneficial role spurring medical research and alerting the public – and ultimately pressuring regulators – to act on larger health risks and problems.

Unlike what its supporters assume, this legislation would do nothing to create biotechnology jobs in the state.  Michigan, the only state in the nation that has such immunity for its pharmaceutical industry have seen thousands of these high-paying jobs leave their state since Governor Engler signed the bill into law in 1995.  (See the CJ&D report A Tragic Blunder: Michigan's Drug Industry Immunity Law to learn more about Michigan's unprecedented law that prevents its residents harmed by dangerous drugs from gaining access to the civil justice system.)

Thankfully there are groups like Georgia Watch an organization dedicated to improving consumer protections for Georgia families who are staying on top of this issue.  Georgia Watch Executive Director Allison Wall said of the legislation,

"Essentially, this is a desperate bid for new biotech business at the expense of our legal rights," said Wall. "That's a dangerous gamble for the Governor, risking the health and safety of Georgians against the interests of corporations."

The Peanut Butter Plot Thickens…

The company responsible for the salmonella outbreak is finally being hauled before Congress – kicking and screaming, it seems. The U.S. House Energy and Commerce Committee is holding hearings today and asked the president of Peanut Corporation of America, Stewart Parnell, to appear.  He refused, without a subpoena! (which the committee issued Tuesday).  The committee will show that “Even after a major 2007 salmonella outbreak sickened more than 600 and cleared store shelves of peanut butter jars, the Food and Drug Administration didn't increase salmonella testing at another peanut processing facility that is now the epicenter of the latest salmonella outbreak.”

Meanwhile, to update a couple of our early posts (here and here), another former plant employee has come forward saying that he once opened a container of peanuts and discovered several baby mice.  He also said he witnessed coworkers put “new” stickers on buckets of old peanut paste, and seeing bags of nuts with holes in them, apparently caused by burrowing rats. Even worse, said the former employee, “they would put tape on them or sew them up and send them out.”

In the meantime, a new report by the FDA indicating that the company knowingly shipped contaminated peanut butter has led lawyers to tack on a punitive damages claim to its earlier lawsuit.  In fact, on 12 occasions in 2007 and 2008, tests conducted by Peanut Corp. found salmonella contamination in its products—but rather than discard them, the company had them retested until it got the result it liked (i.e., one showing no contamination) and sold the stuff anyway.

And now Kellogg has been added as a defendant.  Apparently Kellogg, which manufactured peanut butter crackers out of the toxic goo, conducted at least two of its own inspections through a third party in 2008, and you guessed it--gave it the thumbs up.

Then We Add Dead Rat to the Peanut Butter, and Let It Bake Right In…

The argument that companies regulated by the FDA should be completely immune from lawsuits brought by sick and injured customers just gets weaker and weaker as more information becomes available about the salmonella-tainted peanut butter scandal.

First, it turns out that the FDA hadn’t inspected the Blakely, GA plant where the toxic nut butter was manufactured since 2001—and it only uncovered the problems by obtaining inspection reports done by the state.

Then we find out that the president of Peanut Corp. of America, the company at the center of salmonella outbreak (and now under criminal investigation), is actually on a board that advises the U.S. Department of Agriculture on peanut “quality and handling standards.”

And finally, in this exclusive CBS report, a former a former plant employee says that roaches were a constant problem, there were rat droppings on the floor, huge holes in the roof, and worst of all—he saw a dead rat dry-roasting in a peanut area.  Bon appetite!

Peanut Butter, Lawsuits and the Nutty FDA

“We are inaugurating a President who campaigned on a platform of change, hope, and justice. I sincerely hope that Mr. Obama will be able to effect change in our food safety agencies and policies. In the meantime, hundreds of Americans are ill, and six families are mourning. All of those families have medical bills, some have lost time at work, and we all know what a strain that is. Something has to be done about it.”

That’s a quote from Bill Marler, the attorney representing victims of the recent peanut butter salmonella outbreak, which has already killed six and made ill close to 500 others in 43 states.  The first lawsuit has been filed in federal court in Georgia against Peanut Corporation of America by Vermont parents whose 7-year-old son became violently ill after eating peanut butter crackers, and who tested positive for salmonella now linked to peanut butter.

A blogger at the Seattle Post-Intelligencer put it this way: “Marler, the guru of the nation's food safety investigators, is spitting mad about the way the Food and Drug Administration failed to take any definitive action when the first case of peanut-butter spawned salmonella surfaced in Minnesota in September.  ‘What in the hell are they thinking?’ Marler told me today. ‘The FDA knew there was a problem on Labor Day and they wait for inaugural day to do anything.’"

Ok feds, it's time to wake-up now.  It's been an eight-year long nap!

South Dakotans Seek Justice For All - Not Just The Wealthy

We talk a lot about medical malpractice caps (see here here and here) and late last month we noticed that some in South Dakota are trying to overturn the state's cruel 32-year-old cap on compensation for patients hurt by gross medical negligence.  We hope they succeed.

The case is being brought by the parents of an infant daughter who suffered brain damage last year due to a hospital's gross negligence.  According to the parents, "a feeding device was not placed in the baby's stomach but rather in her abdominal cavity" and "procedures to check the correct placement of the device were done incorrectly, and the baby was poisoned by barium, a substance used in X-rays." It is outrageous that even in cases of castatrophic injuries of children like this, non-economic compensation (for their lost quality of life) would be severely capped. 

It should also be noted that such caps discriminate against children, senior citizens, those with low income and women who do not work outside the home, who are more likely to receive a greater percentage of their compensation in the form of non-economic payments.  (See the the most recent edition of the Washington University Journal of Law & Policy The Racial Implication of Tort Reform written by the Center for Justice & Democracy's Joanne Doroshow and Amy Widman)

So the recent lawsuit filed in Circuit Court in Minnehaha County on behalf of this infant seeks to challenge the constitutionality of that cap.  Earlier this spring a Georgia court struck down that state's medical malpractice cap on non-economic damages.

When Deaths Are Not Enough

What does it take for Big Business to clean up its act?  Explosions in a BP oil refinery and an Imperial Sugar refinery over the last several years have killed 28 people and injured hundreds more.  

Sure OSHA fined the companies ($21 million and $8.7 million respectively) for safety violations, but both companies knew at the time of the dangerous working conditions, and neither has done much to improve safety at their refineries.

According to the Houston Chronicle on Monday

A refinery safety expert says BP has failed to comply with measures for its Texas City plant imposed by federal regulators, perpetuating safety lapses that led to a deadly 2005 explosion.

"The continuing violations of federal law are critical to plant safety. They are life-threatening," Apex Safety Consultants engineer Mike Sawyer said in a report filed in federal court on Monday.

"They could result in another major explosion comparable to that of March 2005," the report said. That disaster killed 15 workers and hurt many more.

Sawyer testified on behalf of plaintiffs who settled their claims last week in the most recent blast-related civil trial in Galveston.

And in yesterday's Associated Press

An executive at a sugar company faulted for a deadly refinery accident in February said he found such "shocking" and "disgraceful" conditions at the Georgia plant last year that he warned his superiors that a fatal disaster was likely.

But Imperial Sugar Co. executives responded that he was being overzealous and told him to back off, he said. A month later, an explosion ripped through the plant in Port Wentworth, Ga., killing 13 workers and injuring dozens more.

"It was without a doubt the dirtiest and most dangerous manufacturing plant I had ever come to," said Graham H. Graham, who toured the facility shortly after being hired in November as Imperial's vice president of operations. "I stated that I believed a fatal disaster would befall the refinery if a fundamental change in the way the plant was operated did not take place."