ThePopTort

Medical Malpractice Victims Fight Wars, Lose Rights

“The king can do no wrong,” or in modern day military medical malpractice parlance, the doctor can be grossly negligent and the patient can’t sue.  Or at least, the right to sue is, shall we say, “ailing.”  This is not a new topic (see our past coverage here) but there a couple new twists to tell you about.  

First, it was reported late last week that one of two “pro se” cases just accepted by the U.S. Supreme Court this term concerns whether the “sovereign immunity” given doctors who commit negligence at military hospitals (because, of course, doctors at such hospitals are deities incapable of committing “legal wrongs”) should apply when the doctor also commits a battery (unlawful touching) on a patient.

Here’s the case:

Steven Alan Levin underwent surgery to remove a cataract in his right eye and have it replaced with an artificial lens at the U.S. Naval Hospital in Guam in March 2003.

Levin later said when the operation was performed, he had withdrawn his consent to treatment, but doctor's proceeded anyway. During the surgery, complications developed, and those complications -- and their remedies -- led to further pain and suffering and a multitude of follow up treatments.

In 2004 Levin had to undergo a corneal transplant to relieve the condition. He sued the doctor and the U.S. government for negligence and battery shortly thereafter.

The federal appeals court (9th Circuit) found that sovereign immunity applied even with regard to the battery claim.  But in the another case, the 10th Circuit found differently.  So now the U.S. Supremes get their hands on it.

Meanwhile, veterans receiving negligent medical care at VA hospitals have another kind rigmarole to go through, as illustrated by this case filed in federal court yesterday.  According to the Associated Press, 

Michael D. Nash of Louisville [KY] filed suit Tuesday in U.S. District Court in Louisville for what he calls medical malpractice.

Nash, who served in the Army in 1968 and 1969, went to the VA hospital in Lexington for medically necessary surgery on his penis. Nash’s attorney, Larry Jones of Jones Ward law firm in Louisville, said that after the procedure a nurse packed Nash’s groin in ice for 19 hours.

“It basically caused frostbite on his penis, which eventually caused gangrene,” Jones said. “In addition to robbing someone of their manhood, they’ve robbed him of the simple ability to urinate just like every other person who lives in this world.”

At first, Nash was prevented from suing, required to try to obtain compensation from the VA through the Federal Tort Claims Act.  However, the VA rejected his claim in July, finding “no negligence.”  When the VA rejects a claim like this, the patient can then sue in federal court.

Jones said the extent of Nash’s injuries are what prompted the lawsuit.

“If this was someone who had a little frostbite and a little burning for a couple of days, there would be no suit,” Jones said. “I would not wish this on my worst enemy.”

December – A Very Messy Massey Month

We thought we’d take this opportunity to update you on the goings on at Massey Energy, the nation’s most unsafe mining company.  (Recall that an April explosion at Massey's Upper Big Branch mine killed 29 miners).  We’ve covered Massey a number of times like here, here, here, but this December seemed especially eventful. 

Massey’s much-hated boss, Don Blankenship, finally quit.  But not before walking away with, “$2.7 million, a free house for life, millions more in deferred compensation, and a ‘salary continuation retirement benefit’ of $18,241-a-month that will continue for 10 years after his departure at the end of the year.…Per W. Olstad, a lawyer with CtW Investment Group, a shareholder group that has pushed for Blankenship to step down, [called it], '[A]n egregious payout. It’s way beyond what he's earned. Given how destructive his mismanagement has been, he simply does not deserve it.'” (As we have noted, Blankenship's salary was $17.8 million last year; at the same time, the company was offering $3 million to famillies for the life of the miners killed at Upper Big Branch.)

Blankenship then went on to plead the Fifth at a government hearing on the explosion   He also threatened and tried to beat up an ABC News cameraman.  (See the man in action, below!) 

To follow up on our story about Kentucky’s Massey mine that is so unsafe that the Labor Department has moved to shut it down under federal supervision, last week, a federal judge rejected Massey’s motion to dismiss the government’s claim.  NPR reports, 

Massey Energy has already begun closing the mine. But Judge Thapar also ruled that the case can continue. The Labor Department argues in an amended complaint that about 60 mine workers at Freedom will be exposed to threatening conditions underground during the several months it will take to dismantle and remove equipment.

Here’s more about the battle between the government and Massey.  The company is also now weighing takeover offers.

And as for Massey’s miners, the company agreed to a fourth settlement stemming from the Upper Big Branch explosion, this one for the family of Benny Ray Willingham, killed at age 61 five weeks before he was scheduled to retire. (See one of our earlier posts, noting the reaction of Willingham’s daughter Michelle McKinney to Massey’s offer of  $3 million to each family, saying, “her family isn't interested and she'd prefer to take every cent CEO Don Blankenship has.”)

And yes, there’s more. News broke a couple days ago that last month, a gay coal miner has sued a Massey subsidiary, “alleging that co-workers in several mines have repeatedly harassed him because of his sexual orientation” including “verbal abuse and invective and lewd gestures by his supervisors and other miners, even after he complained to management.”  For example,

For three months in early 2009, Hall worked at No. 5 Block Mine, where the superintendent knew him from the Winifrede mine and would laugh at the abuse directed at Hall, the suit maintains. Hall became worried when the slurs escalated to violent threats, including "I would like to see all [expletive] die."

In April 2010, Hall returned to the No. 2 Gas Mine, where mine foreman Randy Thomas engaged in persistent harassment, according to the suit. Mine superintendent Carl Lucas did nothing to stop the abuse, the suit alleges.

Eventually, Hall met with Spartan Mining Co. president John Jones, vice president Larry Ward and human resources director Kyle Bane, according to the suit. After promising to take care of the issue, they suspended Thomas for three days and transferred Hall to the Slab Camp Mine, where he continues to face threats and harassment, the suit maintains.

Hall accuses Spartan Mining Co. and its management of creating an oppressive and hostile work environment, and making no effort to resolve physical threats based on his sexual preference.

We can only hope for a better 2011.

Obama, Coal Mines and Maybe Some Hope?

The Wall Street Journal has an article today about the plight of the unions, post-midterm elections. It hardly needs to be said that the new Congress won't be spending much time improving the health and safety of workers, patients and communities.  Unions, for one, are going to refocus attention on regulatory agencies and the Department of Labor for help on issues most important to workers.

As PopTort fans know, lately we’ve been pretty hard on regulatory agency failures to protect the health and safety of everyday Americans (some examples here, here, here.)  It’s the reason why the civil justice system is such an important complement to our regulatory structure, as the U.S. Supreme Court has said.

But we were certainly heartened to see the Labor Department’s unprecedented action yesterday asking a federal judge to shut down immediately Massey Energy's Freedom Mine No. 1 in Pike County, Kentucky “to protect the lives of those who work there.”  Those 130 workers, by the way, are non-union, perhaps one reason why safety protections had gotten so out of control.

The Department filed for a preliminary injunction citing the mine’s “persistently dangerous conditions” (like more than 700 safety violations just this year.)  This step is “the toughest enforcement action available to federal regulators.”  So wow, that’s definitely new.  NPR reports,

The move is viewed by mine safety experts as one response to the deadly explosion in April at Massey's Upper Big Branch mine in West Virginia.  Twenty-nine mine workers died in that tragedy, which has triggered civil and criminal investigations.

For 33 years, the agency has had the authority to take mining companies to federal court when they have serious and persistent safety violations. But this "injunctive relief" section of the Federal Mine Safety and Health Act has not been invoked until now.

Of course, Massey says it has  “struggled to comply with newer MSHA standards” because it's an older and larger mine but “Massey does not believe the mine is unsafe.”  (Thank goodness this new Congress won’t be touching MSHA standards - we hope.)

Meanwhile, however, that whole “revolving door” thing is still alive and well, unfortunately.  West Virginia's mine safety chief Ron Wooten, “who had led the Office of Miners' Health Safety and Training since August 2006, resigned on Wednesday. No reason was given for his departure, but Wooten had filed papers with the state Ethics Commission earlier this year requesting permission to seek a job in the state's coal industry.”

Fortunately, his replacement – at least for now -  is C.A. Phillips, who used to work in the mines “and held several positions with the United Mine Workers of America union.” 

“This marks a new day for West Virginia's miners, as there will now be someone in that office who understands what it means to pack a lunch bucket and go to work in a coal mine every day,” [United Mine Workers] union president Cecil Roberts said in a statement. “There is no one more qualified to hold this position than C.A. Phillips.”

West Virginia Coal Mine Refrain

While the corporate disaster du jour – the BP oil rig explosion and spill, which gets more distressing by the hour  – may be pushing the Massey Energy mine disaster off the national front pages, there are some very important stories still coming out of West Virginia since our last visit.  Here’s the rundown:

Massey Energy is offering each family $3 million.  Michelle McKinney, daughter of Benny Ray Willingham, said “her family isn't interested and she'd prefer to take every cent CEO Don Blankenship has.”  (Blankenship's own salary, by the way, was $17.8 million last year.)

It's been reported that “The widows of two men killed [i.e., suffocated in a fire] in a 2006 fire at a coal mine run by Massey Energy Co.’s Aracoma unit sued the U.S. Mine Safety and Health Administration, alleging improper inspections were linked to the deaths.”  This case is unusual because the agency itself is being sued.  The complaint says that “MSHA found at least 20 specific safety violations that contributed to the accident that killed Mr. Bragg and Mr. Hatfield.  For almost every violation, MSHA determined that its inspectors were at fault for failing to identify or rectify grave and obvious violations during its numerous inspections of the Alma Mine prior to the fire.”

The United Mine Workers is calling for Blankenship's ouster, but he apparently "has the full support and confidence of the Massey Energy Board of Directors. ... The statement comes as several shareholder groups have indicated they could seek Blankenship's removal as CEO at an annual meeting scheduled for May 18, as well as the ouster of several of Blankenship's allies on the board of directors." The board, by the way, is being sued by a number of institutional investors.

Meanwhile the news about the safety of Massey mines is not getting better.  Massey “was caught recently operating three other mines where safety rules were violated and miners had to be evacuated by inspectors for the Mine Safety and Health Administration (MSHA).  MSHA said each of the surprise visits was prompted by anonymous tips that the agency received about conditions at the Massey-owned mines. ‘What’s especially troubling is that one of the complaints came in just days after the explosion at Upper Big Branch Mine,' said Joseph Main, assistant secretary of labor for mine safety and health.’”

Speaking yet again of the MSHA, Joe Main said in Congressional testimony this week, “We realize the current ‘pattern of violations’ program is broken and must be fixed,” Main said. “It is too easy for mine operators to evade responsibility and too hard for the government to hold bad actors accountable.”

And finally, West Virginia is certainly not alone. In Kentucky, “Two miners were killed when a roof collapsed in a coal mine with a long history of safety problems.… State and federal records show more than 40 closing orders for the mine over safety violations since January 2009.  Inspectors from the State Office of Mine Safety and Licensing have issued 31 orders to close sections of the mine or to shut down equipment because of safety violations since January 2009.  Federal inspectors cited the mine 840 times for safety violations since January 2009, and closing orders were issued 11 times. The records show that 214 of the citations were issued in the first four months of this year, and that inspectors have issued closing orders twice so far this year.”

UPDATE: NPR JUST REPORTING THAT THE JUSTICE DEPARTMENT IS CRIMINALLY INVESTIGATING THE MSHA FOR POSSIBLY TAKING BRIBES. 

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.

Chipping Away at Justice: More Workers’ Comp. Woes

For employees with obvious work-related injuries, forcing them into workers' compensation systems in this country, with paltry benefits and increasingly difficult eligibility standards, is bad enough.  (See here,  here,  and here.) 

But for workers sick due to occupational exposure to chemicals, it’s beyond unjust.  A piece in yesterday’s New York Times told the infuriating story of Ed Abney, 53, of Berea, KY, who spent more than 20 years cleaning metal piping with trichloroethene (TCE) at a defunct Dresser Industries plant (Dick Cheney acquired Dresser while at Haliburtan).  He now suffers from Parkinson’s disease, which is pretty clearly linked to this chemical, but he can’t recover anything under Kentucky’s Workers Comp. law.

The problem is, as with most injuries like this, the standard of proving that he contracted Parkinson’s due to TCE, is impossible to meet.  But as E. Donald Elliott, a Yale Law School professor specializing in workers’ comp. cases put it, simply being exposed to a risk in the workplace “should in itself be a compensable injury.”

But it’s not.  And the really sad thing is, as the Times suggests, had Mr. Abney not been forced into the workers' comp. system and allowed to sue in court, with an attorney who could afford to fight a complex and expensive case against the insurance and chemical industries, he and other workers like him probably would have won their cases and been compensated.  It’s another sad example of what happens when you have laws that keep cases out of the tort system.

Six Flags: More Flags, Less Safety

The slogan of the famed theme park chain, Six Flags, may be “More Flags, More Fun,” but the reality was something very different for Kaitlyn Lasitter.  On June 21, 2007, Lasitter, then 13, was riding the “Superman Tower of Power” at Six Flags Kentucky Kingdom when a cable broke, severing both of her feet.

Now, nearly 1 ½ years later, the park has reached a confidential out-of-court settlement with Lasitter’s family, who had sued Six Flags for negligence in ”inspecting, testing, maintaining, and operating the
ride.” The Lasitter’s attorney, Larry Franklin, described the family as being “relieved.”

“The word ‘happy’ is not used in this family,” Franklin said. “There is no way you can be OK when your daughter’s legs are cut off.”

Franklin says the Lasitters plan to move from their Louisville home “to get a fresh start,” in hopes that Kaitlyn will no longer have to suffer “taunts and bad jokes” related to the horrific incident.

In addition to the taunts, Kaitlyn reportedly continues to battle “pain and depression,” as well as uncertainty about the future.

“You don’t put something like this behind you,” Franklin said.

Lawsuits Help Keep Us Safe—From Hate!

The news was loaded with stories today about how people are putting the civil justice system to use—to fight hate crimes!  That’s right civil justice fans, often lost in all the “tort” talk is the way lawsuits help compliment the criminal justice system in holding accountable those engaged in bigotry and violence.  See CJ&D’s report on this – the section called “Hate Crimes”

Case in point: a Manhattan-based group, Hispanics Across America, is considering a wrongful death lawsuit against the parents of seven teenagers charged in the allegedly race-based, fatal stabbing of an Ecuadorian immigrant.

"Parents that teach their children hate are just as responsible as the kids who commit the crimes," said Fernando Mateo, president of Hispanics Across America. Feeding and sheltering children isn't enough, Mateo said. Children need to be taught values.

"We cannot harbor terrorists in our homes," he said.

Meanwhile, the Southern Poverty Law Center is hoping to put one of the nation’s largest Ku Klux Klan groups out of business by suing them for their involvement in the beating of a Latino teenager. 

“The goal is to deter future violence,” said Booth Gunter, a spokesman of the law center.

Sounds good to us!

Justice Where it Counts: Man’s Penis Amputated Without Consent

Just when you think medical errors in hospitals couldn’t get worse, check out this article about a Kentucky man who wanted to be a circumcised to help treat an inflammation, but ended up with a whole lot more (or less!) than he bargained.

Philip Seaton, 61 woke up in the hospital without a penis.  He and  his wife are, understandably, suing the doctors who cut it off.

The doctor’s post surgical notes showed that the doctor thought he detected cancer, and so removed the penis without his consent, according to Seaton’s attorney, Kevin George.  Although a later test did confirm the presence of cancer, George pointed out “It was not an emergency…It didn’t have to happen that way.”

Turns out this isn’t the first instance of a preventable penis amputation in a hospital!  Doctors in Tennessee settled one.  And another, involving an Indianapolis man who was awarded compensation when his penis and left testicle were removed without his consent during surgery.

Insurers Need to Be Held Accountable

CJ&D Executive Director, Joanne Doroshow, wrote a poignant op-ed about Kentucky's medical malpractice situation that appeared in an east Kentucky newspaper over the weekend.  Here is an excerpt:

In 1997, Kentucky resident Bill Rogers, then 52-years-old and married to his wife Lela, went to the hospital for a treatable infection on this thigh. Doctors began treating him alright — unfortunately, with the wrong antibiotics. The infection got worse and spread. Within a month, doctors had to amputate Bill’s penis.

In the heated debate over medical malpractice insurance for doctors, there is typically little discussion of cases like Bill Rogers. Indeed, each year up to 98,000 people die from medical errors in hospitals. Hundreds of thousands more are injured, many in catastrophic and life-altering ways like Bill.