ThePopTort

Hospital Safety’s Newfangled Issue - Power

Patient evacuated during Katrina

With the sun finally coming up over New York City this morning, I thought about augmenting this happy development with a post aimed at lifting everyone’s spirits. 

Nah.  Today, I’m going to discuss hospital safety.  And just when you think you’ve heard it all.

NYU Langone Medical Center is one of New York City’s safer hospitals, although that might not be sayin' a whole lot. In July, we told you about the latest hospital rankings from Consumer Reports, specifically that "of the 50 lowest-scoring hospitals nationwide in terms of quality of care, 30 were in the New York City area [and ] the five lowest-rated hospitals nationally were all in New York City.” NYU Langone Medical Center is actually one of the higher ranked NYC hospitals, with a patient safety score of 56 (out of 100, but the top rated US hospital only scored a 72.  In other words, they’ve all got problems.)

I think the entire nation was horrified upon learning that this hospital’s back up generator failed when power went out in Lower Manhattan during Hurricane Sandy.  This was after assurances to city officials that everything would be fine.  And then seeing 200 patients, including about 45 critical care patients and newborns unable to breathe on their own, being slid down dark stairwells and taken to other hospitals (most with lower safety ratings than NYU, by the way) in the middle of a hurricane.   

First of all, talk about a Katrina lesson not learned.  As Bloomberg (the news service, not Mayor) reports,

Electricity failures at hospitals in Louisiana during Hurricane Katrina led to lawsuits. Tenet Healthcare Corp. (THC), the third-largest publicly traded hospital chain in the nation, agreed to settle a class-action lawsuit over patient deaths brought by families who blamed the actions of officials at the company’s Memorial Medical Center in New Orleans. At least 34 patients died at the hospital after the hurricane knocked out power.

Thanks to the almost super-human heroic efforts of doctors and nurses, no NYU-Langone patient died during this experience, but the doctors and nurses were no less heroic during Katrina.  It was just sheer luck that the ambulances could make their way down city streets.

But now, questions about how and why this happened need to be asked, and not just by our little blog, but by the hospital trustees, and the city.  Continued Bloomberg,

Blame is being placed on the building’s outdated backup power system, which has raised concern that aging infrastructure at U.S. hospitals has created a risk for similar outages that jeopardize patient care.

“Hospitals are careful to get the latest and greatest medical equipment, but then they don’t spend on the infrastructure,” Michael Orlowicz, a principal at consulting company Lawrence Associates LLC, said in an interview. “It surprises me what happened in New York.”

One in 20 hospitals are unprepared for power disruptions, and an incident may result in more than $1 million in lost revenue and other costs, according to Bridgewater, New Jersey- based Lawrence Associates, which focuses on economic justification for technology spending. Coney Island Hospital and Bellevue Hospital Center in New York also were forced to evacuate some patients because of power failures.…

The board knew the facilities’ generators were outdated and at risk, Gary Cohn, a trustee who is also president of Goldman Sachs Group Inc., said yesterday in an interview on Bloomberg Television.

I’m assuming by “board,” he was including the hospital's billionaire chairman Kenneth Langone (Home Depot founder), who happened to be in the hospital with pneumonia and had to be evacuated from his 11th floor room. “So last night God decides to give us a test and our machines failed,” was one of his explanations. 

“Machines fail, airplanes take off in great shape and they have malfunctions,” Langone said. “Why do we always need to blame somebody for something that could just have happened? Why not write a story about what people did because things happened? Let’s be a little positive once in a while.”

Yeah, that was our first thought too. 

Insurance Delays and Incongruous Courts

Let’s tackle the good news first.

Today, the U.S. Supreme Court refused to hear an appeal from Louisiana Citizens Property Insurance Corporation.  This appeal followed a Louisiana Supreme Court decision upholding a local court decision ordering Citizens to pay $105 million in penalities to thousands of policyholders it harmed after Hurricane Katrina.  Citizens had been set-up in 2003 as a state-sponsored “insurer of last resort” to provide homeowners insurance to those who could not find coverage in the private market. You will no doubt recall that following the 2005 storm, many individuals were left destitute, without food, water or a roof over their heads.  As this report showed, Citizens policyholders had a particularly horrendous time – probably the worst of anyone - trying to file claims or get them paid.  And that’s saying something.  Citizens has the money, but says it’s gong to continue to try to fight this in federal court. 

Now, unfortunately, the bad news. On Friday, the Texas Supreme Court issued a shocking 5-4 decision, which completely eradicates the rights of injured workers to sue workers’ compensation insurance carriers that act in bad faith, suddenly overturning decades-long Texas law.  Writes the Austin American-Statesman:

The 5-4 decision favored Texas Mutual Insurance Co. of Austin, the state's largest workers' compensation insurance carrier. The case was one in which Texas Mutual had initially denied an injured worker's claim, saying he was hurt playing softball and not at work, before the company eventually settled the case.

The worker, Timothy Ruttiger of Galveston, later sued the insurance company, claiming the delay in getting his benefits damaged his credit, worsened his hernias and caused mental anguish, pain and suffering.

A Houston jury awarded Ruttiger $173,500, plus attorney fees, but last summer the Texas Supreme Court ruled that Ruttiger take nothing under the insurance code and deceptive trade practices law. But the higher court sent back the bad-faith claim for reconsideration by a Houston appellate court.

Before the appellate court acted, the Supreme Court granted a request for a rehearing.

On Friday, the decision eliminated the bad-faith provision that had been law for 23 years. …

Alex Winslow with the Texas Watch Foundation's Court Watch project said that the decision is another example of the Supreme Court's conservative activism.

“Five robed justices have gone out of their way to second-guess the clear and decades-long intent of the Legislature,” he said in a news release.

Read more from Texas Watch here.  And then go read this book.

New Orleans Buoyantly Looks Up (We Hope)

When the story hit over the weekend about how defensive players on the New Orleans Saints “maintained a 'bounty' program funded primarily by players … for inflicting injuries on opposing players,” I thought, “we sure could use some news about this great city where someone hasn’t been hurt!”  (Or maybe it was just a bad weekend.)

Those hurt by BP’s Deepwater Horizon explosion and massive oil spill were certainly the subject of big news late Friday, when BP agreed to “settle health and economic damage claims by individuals and businesses who were harmed by the Gulf of Mexico oil spill,” removing Ken Feinberg and the tainted Gulf Coast Claims Facility from the claims process and, if approved, substituting instead Patrick Juneau, an experienced special master from Lafayette. BP estimates that the deal will cost about $7.8 billion but the settlement is uncapped, “meaning there's no limit on how much money is available to pay damages.” 

The plaintiffs say that the new process will be more transparent than the Gulf Coast Claims Facility. Calculations will be made under formulas approved by the court, so people will be able to see exactly how their award was made and can dispute it if necessary. Few details are available about how the claims will be organized, but they take into account the types of damage and proximity to the coast. Each claim will be multiplied by a "risk transfer premium" that will differ by type of claims since no punitive damages were awarded by a court. The plaintiffs say that the risk transfer premium will ensure that their deal will pay more in compensation than what Feinberg did, but not enough details have been worked out from their agreement in principle to say what the multipliers are and how large the biggest multiplier is.

"Under the new program, eligible claimants will generally be paid greater benefits than under the GCCF," said Stephen Herman and Jim Roy, liaison counsels for the plaintiffs, in a press release.

Yet that’s not all.  Hurricane Katrina made the news late Friday, too.  As the Times-Picayune reported it,

The U.S. 5th Circuit Court of Appeals on Friday upheld a lower court ruling finding the Army Corps of Engineers responsible for flooding portion of the Lower 9th Ward and St. Bernard Parish during Hurricane Katrina because of its failure to maintain the Mississippi River-Gulf Outlet. If upheld by the U.S. Supreme Court, the ruling could eventually result in residents, businesses and local governments being reimbursed for damages of as much as $20 billion, according to the lead attorney representing plaintiffs in the case.

We should also note that this decision, “found the corps to be immune for damages to thousands of New Orleans residents caused by flooding when walls along drainage canals in western New Orleans failed,” even though “negligent and wrongful acts of federal employees” may have been involved.  But, said the Court, “the failure to maintain the MR-GO was unrelated to the flood control activities represented by the levees along its banks, and instead was the equivalent of a Navy captain failing to maintain a ship that crashes through a levee.”

AP notes that the lower court judge,

[A]warded a total of nearly $720,000 in damages to five plaintiffs who sued. The corps also has received roughly 500,000 administrative claims that could become fodder for similar suits.

Plaintiffs’ attorney Pierce O’Donnell expressed hope that Friday’s ruling could stimulate settlement talks with the government to resolve the pending claims.

“This is a landmark victory, not just for the people ravaged by Katrina’s flooding but for all Americans,” he said. “We must hold our government accountable when it inflicts avoidable harm on its citizens.”

Next up – shaking that “Murder City” title.  One step at a time.  

"Really!?! with Seth and Amy", Ground Zero Edition

"Really!?! with Seth and Amy" isn’t my favorite SNL Weekend Update sketch, but I have to say, it came to mind immediately when I heard that Sheila Birnbaum was appointed by the Justice Department today to  oversee distribution of the new $2.5 billion fund for sick and dying Ground Zero workers.

Really?  The only person in America who could do this job was a State Farm insurance company corporate lawyer who fought Katrina victims who were left destitute because State Farm and other insurers refused to pay their legitimate claims?  And then she discussed her successes at a Web Seminar for the extreme-right  Washington Legal Foundation?

Really? The only person in America who could do this job was a lawyer who has been so successful at crushing the claims of corporate negligence victims on behalf of her corporate clients that she has been dubbed the “Queen of Torts?”  Really?

I mean really, the Administration believes this individual will be better at helping sick and injured workers than any lawyer with actual experience helping the sick and injured?  And who generates media coverage like this from the Wall Street Journal?

Companies have often turned to Birnbaum, a former law professor and fourth-grade teacher, in times of distress. In 2004, she represented Chiron after the company received negative publicity for its flu vaccine. “Sheila was my quarterback,” said Nancy Koch, formerly a senior lawyer at Chiron who worked closely with Birnbaum during the crisis. Ultimately, the SEC formally closed its investigation without taking any action, a securities-fraud lawsuit was settled and the product-liability actions were dismissed.

Birnbaum has also helped State Farm in other big cases. In 2005, Birnbaum helped convince the Illinois Supreme Court to dismiss a class-action judgment of more than $1 billion against the insurer. She also represented State Farm before the Supremes in the big 2003 ruling that placed caps on punitive damage awards, a decision seen as a big win for corporate America.

“Sheila Birnbaum has been one of our most effective advocates in litigation for a number of years and has played a central and significant role in Hurricane Katrina litigation,” said Kim Brunner, State Farm’s general counsel.

Now, I don’t know Sheila Birnbaum and I realize that she has mediated some wrongful death and injury lawsuits on behalf of some 9/11 victims.  And Ground Zero worker spokesperson John Feal, who worked tirelessly to get Congress to pass the $2.5 billion fund, has hopes for Ms. Birnbaum even though this was not his choice, so we have to be hopeful too.   

But, really?

(You can learn more about State Farm’s despicable post-Katrina behavior by listening to testimony from former Mississippi Congressman Gene Taylor.)

The Courts Are Actively Ruling on Katrina Cases (In Case Anyone's Paying Attention)

Who here remembers Comedy Central’s early 90’s John Stewart-hosted show, Short Attention Span Theater?  No, me neither, but I can think of a few issues today that would make great segments.

A few days ago, we featured a piece from Countdown with Keith Olbermann about BP’s courtroom delay tactics that, as he puts it, “buys them time for the public to forget.”  Given our Short Attention Span, who doesn’t think “forgetting” is virtually a guarantee? 

In fact, unless you live in the Gulf, the continuing devastation caused by BP has pushed the continuing devastation caused by Hurricane Katrina off the front pages and cable news shows (except for the recent five-year anniversary and Spike Lee).

So today, we thought we’d bring you up to date on a few court cases from the storm that are still winding through the courts, and that reached important milestones this week.

First, “residents and property owners suing Jefferson Parish, former Parish President Aaron Broussard and his administration over widespread flooding in the wake of Hurricane Katrina scored a victory Wednesday when they were granted class-action status in the 24th Judicial District Court in Gretna.”

The lawsuits “blame the flood damage on a decision within Broussard's administration to evacuate 220 pump operators to Washington Parish as the major storm approached the Gulf Coast.”  It should be noted that  “Broussard testified in November 2007 that he did not deliver the order to evacuate the pump operators and told the court that he was ignorant of a ‘doomsday plan’ that called for such a decision.” We’ll see what happens.

Meanwhile, “a federal judge has thrown out nearly all constitutional claims in a lawsuit against Gretna and Jefferson Parish law enforcement agencies for their controversial decision to block stranded people from walking across the Crescent City Connection to the West Bank after Hurricane Katrina.… Several lawsuits related to the bridge blockade remain in New Orleans Civil District Court.”

Also, the Louisiana Supreme Court has “upheld a lower-court ruling tossing out Louisiana Citizens Property Insurance Corp.’s $35 million settlement of a class action suit because the deal was unfair to some policyholders.”  The lawsuits “stemmed from delays in adjusting and settling claims from hurricanes Katrina and Rita.… In its 33-page decision issued Friday, the Supreme Court ruled that Citizens erred in settling one lawsuit and then claiming that agreement covered the plaintiffs in another class action lawsuit.”

And finally, “a three-judge panel of the U.S. 5th Circuit Court of Appeals ruled Tuesday that an Army Corps of Engineers contractor was not entitled to immunity from being sued for its actions in removing debris on the east bank of the Industrial Canal next to a section of floodwall that failed during Hurricane Katrina. The decision means that the lawsuit filed against Boise, Idaho-based Washington Group International Inc. engineering and construction firm by flood victims in the Lower 9th Ward, eastern New Orleans and St. Bernard Parish returns to the courtroom of U.S. District Judge Stanwood Duval for further action.”

We'll keep an eye out.

 

Katrina Hospitals Victims “Literally dead in the water”

Since Hurricane Katrina in 2005, much has been written about deaths that could have been prevented but for the negligence of various institutions.  We’ve covered the responsibility of the Army Corps of Engineers,  and its “monumental negligence” for not maintaining the levees that collapsed.  But now, we are finding out that many excruciating deaths in hospital and nursing homes could have been prevented too.

A joint project of the New York Times and ProPublica has reported on a massive corporate failure at New Orleans hospitals to establish emergency backup power systems, causing patients to slowly die as they “languished for days awaiting transport.”

In fact, three years before Katrina, one of Pendleton Memorial Methodist Hospital’s senior executives wrote in a report that the hospital lacked the amount of generators needed “to accommodate an emergency flood with 15 feet of water,” and that one of hospital’s two main generators would be “nonfunctional in about two feet of flood water.”  The report, written in response to similar flooding that had already occurred in Texas, recommended that a $7.5 million fix be undertaken to avert such a disaster.  That warning was never heeded.

One of the patients who died at Pendelton was 73-year-old Althea LaCoste.  In her family’s lawsuit, they say she died horribly and, in turns out, unnecessarily, in “sweltering heat after nurses spent hours pumping air into her lungs by hand in the pitch dark...". 

Meanwhile, according to Robert Wise, vice-president of the Joint Commission, the accreditation body for most American hospitals, “There are many [hospitals] that still know they have to move their generator,” and that without power, will be “literally dead in the water.”

It seems there’s simply no end to the institutional negligence surrounding Hurricane Katrina.

In the News

Lead story in today’s New York Times about primary care doctor shortages.  Neither medical malpractice  insurance nor lawsuits are even mentioned as reasons for doctor shortages - and none of the typical complaining specialties (OB-GYN’s, surgeons) are mentioned either - except to say that specialties aren’t having shortages!

In the wake of the Wall Street meltdown, U.S. Supremes to hear arguments about whether state AG’s can investigate national banks that discriminate.

Florida Senate considers bill that “seeks to ban vaccines containing mercury” despite a bad ruling. 

South Florida Sun-Sentinel warns that delays in enforcing CPSIA standards mean parents should remain on guard against existing hazards.

And several good stories from last week that we should tell you about:

Major environmental victory as Shell Oil settles air pollution lawsuit—agreeing to reduce emissions from air pollutants by 80 percent within three years.

Utah Supreme Court says a state law that reduces workers’ comp. for people over 65 (who qualify for Social Security) amounts to unconstitutional age discrimination.

Another bad ruling from the U.S. Supremes upholding mandatory arbitration for union members in ageism disputes.

Another Starbucks employee wage dispute may be granted class-action status—this time in Florida. 

Last Thursday, U.S. Senate said no to capping whistleblower awards for citizens who bring False Claims Act lawsuits to recoup taxpayer money lost to fraud. 

Documents filed in lawsuit reveal, “Global Climate Coalition, a group representing industries with profits tied to fossil fuels, led an aggressive lobbying and public relations campaign against the idea that emissions of heat-trapping gases could lead to global warming,” despite receiving contrary evidence from its own experts.

Oklahoma county settles with man whose jailers refused to dispense prescribed medications and kept him in a “restraint chair,” ultimately requiring his legs to be amputated.

Pennsylvania hospital found liable after failing to follow treatment standards for a cyst removal that put a woman in a coma.

Story about dirty VA hospital equipment, which exposed 11,000 vets to infectious diseases, gets worse and worse as frustration mounts over the alleged “lack of information” being provided by the VA.

And finally, here we go again.  As with Katrina and Rita, insurance companies are making life even more unbearable for Hurricane Ike survivors in South Texas.

Katrina Victims Get Their Day in Court Against The Army Corps of Engineers

We’ve blogged before (here, here) about what today’s New York Times is calling “a groundbreaking civil suit,” brought by several Hurricane Katrina victims against the Army Corps of Engineers. 

We certainly don’t need to remind PopTort readers of the magnitude and human suffering caused by this catastrophe: 1,400 deaths (with many more unaccounted for), millions displaced, hundreds of thousands left without jobs or income.  And you may also recall that but for the failure of the levee system built by the Army Corps of Engineers, New Orleans would not have suffered catastrophic flooding during this hurricane.

To make matters worse, Congress immunized the Corps from liability for flood-control failures in 1928,  which has left Katrina victims with no ability to hold anyone accountable for this destructive, man-made blunder – or so they thought.

Turns out that the navigation channel built by the Corps in 1968, known as MR-GO (and pronounced “Mr. Go"), was built to help ships reach the Gulf of Mexico – not to control flooding.  In fact, critics have long referred to the canal as a “hurricane highway,” because it increased flooding by carrying storm surges into New Orleans.   According to the Times, “One geological expert testified on behalf of the plaintiffs that the channel was ‘one of the greatest catastrophes in the history of the United States.’”

Luckily for the hundreds of thousands of Katrina victims, a judge has ruled that the government can’t be immune for the damage MR-GO caused.  Now the case is going forward. 

Jonathon Beuregard Andry, one of the attorneys representing flood victims, said his clients “don’t want sympathy, and they don’t want something for nothing….[t]heir whole life is changed and they should be compensated for that.”

Katrina Victims Pry Out a Little More Justice

We’ve blogged before about the horrendous treatment of Katrina victims by insurance companies that refused to pay out their legitimate claims (see here, here, here).  In fact, Americans for Insurance Reform did a whole report on it.

So you can imagine how happy we were to read that the Louisiana Citizens Insurance Corporation’s board “approved paying up to $35 million to settle a class action lawsuit alleging that the firm took too long to pay off policyholders' claims after the 2005 hurricanes.”  By the terms of the agreement, the 30,000 or so victims in the “class” could get up to $1,000 each.

Even better, assuming the settlement is approved on December 15 by state District Judge Kern Reese, “the settlement would have no effect on other lawsuits against [the insurance company], including those from policyholders who argue the firm paid too little on their claims from hurricanes Katrina and Rita.

Prying the insurance industry’s fingers from its purse strings is rarely easy—but the civil justice system sure does provide a handy crowbar!