ThePopTort

Attack of the Drinking Water Killers

Lest you think that hydro-fracking is the only threat to your drinking water these days (check out Sean and Yoko’s anti-fracking press conference on Friday, with Sean pleading to save the drinking water at his – formerly his dad's – upstate New York home), let me assure you that this is but one of the many ways the oil and gas industry have tried to poison you. Or as Yoko unforgettably put it, “Fracking kills. So it’s such a pity that we're going to do that, we’re going to commit suicide all together?" Learn more here. 

Today, jury selection begins in the state of New Hampshire’s case against ExxonMobil and Citgo.  The state is asking these companies “to pay more than $700 million in damages to monitor and clean up groundwater contamination caused by the gas additive MTBE — methyl tertiary butyl ether — now banned in New Hampshire.”

The lawsuit — filed in 2003 — is the only one brought by a state to reach trial on the issue of MTBE groundwater contamination. Most of the other MTBE cases nationwide were brought by municipalities, water districts or individual well owners, and all but one was settled or dismissed.… New Hampshire banned its use in 2007 [and] roughly 60 percent of New Hampshire’s population gets its drinking water from wells.

MTBE is a highly toxic chemical that has been added to gasoline since the late 1970s and has contaminated water supplies in every state in the nation. U.S. Geological Survey experts estimate that there may be 250,000 leaking underground storage tank releases of MTBE. (See our coverage last year when the industry was trying to get immunity from Congress.)

The oil companies are claiming preemption – that “by adding MTBE to gasoline, they were complying with a U.S. mandate to supply fuel that would burn more cleanly,” even though there were obviously safer alternatives that wouldn't poison underground aquifers supplying half of the nation’s drinking water. And they’re claiming that the statute of limitations has run. And they’re claiming, “This case is not about health risks or personal injuries … There is not a single recorded case of anyone getting sick from drinking water with MTBE. The majority of the state’s damage claims are based on computer models and projections not on actual testing or data.”

Wow, that’s ball-sy of them, especially since New Hampshire sued in 2003, every other oil company has already settled with the state.

The fact is that that these companies had extensive knowledge of the toxicity of MTBE in groundwater yet voluntarily used it as a gasoline additive for decades without alerting their customers, the public, or Congress of the potential hazards.  That is certainly what a California jury believed in 2002, when it decided that the several major oil companies acted “with malice” and were liable for polluting ground water with MTBE and withholding information. 

Over to you, New Hampshire jurors!

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.

Needles, Injections and Rational Phobias

You may know that “fear of needles” is an actual medical condition.  There are a few fancy words for this phobia.  One, “aichmophobia,” has its own Wiki page.  Another, “trypanophobia,” is the subject of a blog written by a “a medical student with needle phobia.”  That can’t be good.

Many people have needle phobia – officially 10% of American adults, but “it is likely that the actual number is larger, as the most severe cases are never documented due to the tendency of the sufferer to simply avoid all medical treatment.”  That can’t be good either. 

One South Carolina doctor says “seven out of 10 of his patients are afraid of shots.”  He’s trying to solve that problem by pushing flu shots with new, smaller needles.  Others have tried different remedies (like “Jet Injectors [which] work by introducing substances into the body through a jet of high pressure gas [which] eliminates the needle [but] causes more pain,” or “Inhalation General Anesthesia” [which] will eliminate all pain and also all memory of any needle procedure.”  Who knew the Men in Black Neuralyzer was actually real? Yikes.) In other words, treatments for needle phobia are generally dreadful.  Unfortunately, today’s PopTort, which adds to the recent glut of news stories about contaminated needles, isn’t going to help. 

Let’s even put aside discussion of new stories (like here, here) about just how disgusting and unsanitary the New England Compounding Center has turned out to be, responsible for producing contaminated steroid shots, mostly for back pain, resulting in the deadly meningitis outbreak. It was just announced that 17 people from Western Pennsylvania have sued and are seeking class action status on behalf of those potentially exposed to hepatitis C at UPMC and Maxim Healthcare Services after David Kwiatkowski, a former UPMC radiology technician, infected syringes “after he used them to feed his drug addiction.”

According to the complaint, on May 7, 2008, a UPMC hospital employee saw Mr. Kwiatkowski enter an operating room, lift his shirt and put a syringe in his pants. The hospital found that the syringe contained fentanyl, a painkiller.  Other syringes were found on him and in his locker.  He was terminated, but continued to be employed by Maxim, a staffing agency...

UPMC has already been sued by patients of other hospitals in other states alleging that the hospital system and Maxim did not report Mr. Kwiatkowski to any government agency.

In the two years after he worked in Pittsburgh, Mr. Kwiatkowski went on to work in at least eight more hospitals, including Johns Hopkins in Baltimore from July 2009 to January 2010, and Hays Medical Center in Hays, Kan., in May 2010.

One of the worst outbreaks was at Exeter hospital in New Hampshire, where the Centers for Medicare and Medicaid Services recently said the hospital now may lose its Medicare provider agreement.  Explains the Associated Press,  

The agency’s inspection was triggered by the case of David Kwiatkowski, a former cardiac catheterization lab worker who is accused of stealing drugs from the hospital and replacing them with tainted syringes that were later used on patients. Thirty-two people have been diagnosed with the same strain of hepatitis C he carries since the investigation began in May.…

Kwiatkowski, a traveling medical worker whom prosecutors describe as a "serial infector," was hired in Exeter in April 2011 after working in 18 hospitals in Arizona, Georgia, Kansas, Maryland, Michigan, New York and Pennsylvania.

He moved from hospital to hospital despite having been fired twice over allegations of drug use and theft. Thousands of patients in those states are being tested to see if they, too, were infected with hepatitis C, a sometimes life-threatening virus. A handful of patients in Kansas also have been found to carry the same strain Kwiatkowski carries.

Incredibly, while all this was going on, New Hampshire lawmakers decided to enact a terrible, anti-patient law that will reduce the accountability of negligent hospitals, over the objection of the Governor whose veto  was overridden, the state’s powerful Union Leader newspaper, medical malpractice insurers, patients and attorneys.

To be a phobia, the fear has to be somewhat irrational.  Yet every day, we’re bombarded with stories about people dying from contaminated needle injections in medical settings.  Meanwhile, lawmakers continue to pass laws trying to solve the massive problem of medical negligence on the backs of injured patients.  So who’s irrational now?

How to Cure Medical Malpractice OCD

Back in 1994, the television show TV Nation featured a hilarious segment called “Pets on Prozac,” about pets with OCD (obsessive-compulsive disorder) like Willie the dog, who was so fixated on his log that he really couldn’t function as a regular dog. There were also dogs who could not stop chasing their tails until, in some cases, they actually bit ‘em off. Ouch!  These poor animals needed help and since electroconvulsive therapy was probably not an option, they tried the next best thing - Prozac.  Now what’s this have to do with us?

Well, I’m thinking that some folks in the U.S. House of Representatives may want to take a look at this TV piece (see below, although not the best quality but you get the idea), and then get some help for their obsession with H.R. 5, the anti-patient medical malpractice/drug/nursing home bill, which we’ve covered many times (like here, here).  Let’s review.  First, the House assigned the bill to two committees.  Each one had a hearing.  Each committee then marked up the bill and sent it to the House floor.  Then, the House passed the bill on a largely partisan vote.  Then, the House leadership brought the bill back to both committees - again.  And then one committee marked it up - again.  Then the other committee marked it up - again.  And now, as part of a new budget package, it’s probably going to hit the House floor - again.  As Willie’s owner said, “Willie has to look at his log, stay with his log, he doesn’t see the big picture.”  This sounds awfully like the U.S. House of Representatives and its relationship to H.R. 5.

This latest round of looking at the bill, staying with the bill, passing the bill, etc., is because some members of Congress think stripping injured patients’ of their legal rights (so that Medicaid and Medicare must pay for their care instead), will save taxpayers money.  Now don’t get me wrong, I’m not advocating shoving Prozac down anyone’s throat to stop nonsensical thinking like this. There have been enough problems with that drug.  But short of pushing pills, there actually is a solution to this obsession, and all it takes is reading the latest publication by the insurance firm A.M. Best,  Looking for money?  Go no further than the astonishing profits of the medical malpractice insurance industry.  Here’s what Best says:

The medical professional liability insurance (MPLI) sector continues to stand out among insurance sectors for its ability to garner profits and generate returns far in excess of the composite averages of its property/casualty peers, according to a recently released A.M. Best Co. special report.

The report, "Medical Professional Liability Outperforms, But Is This Sustainable?" states that the MPLI sector in 2011 posted underwriting and operating results that outpaced the U.S. property/casualty industry composite.

In fact, for years med mal insurers have been doing better than the property/ casualty insurance industry as a whole, which itself has been remarkably profitable. (See this report for more.) Looking for money?  Take it out of the pockets of these profiteering medical malpractice insurance firms.

States should do the same.  And that includes state lawmakers who think it might be a great idea to save money by having hospital risk managers approach unrepresented injured patients (or families of those killed) with low-ball offers.  See our discussion of the Boston proposal here and an op ed about it, which  appeared in the Boston Globe.  And there's an even worse proposal on the table in New Hampshire.

So to all you lawmakers out there: Stop trying to solve deficit problems on the backs of injured patients and look to the insurance industry instead.  You'll make everyone much happier – and without pills!

Civil Justice Protects Kids

There may be nothing more emblematic (and fun!) about the holidays than kids.  But sometimes, kids aren’t having too much fun, especially when certain people let them down.  So here at ThePopTort, we thought it would be an especially good time to talk about how the civil justice system provides a unique and essential line of protection for them.

Lawsuits can be especially useful in revealing cover-ups and wrongdoing by institutions that are supposed to protect kids, as the many priest lawsuits have shown.  The latest example of this can be found in a recent case out of Chicago.  The archdiocese there has reportedly agreed to pay nearly $1.4 million to a man who was allegedly abused by a priest from 1987 to 1992.  Documents released as part of the settlement reveal that the archdiocese was aware of the allegations against the priest.  “How many more documents like this are they keeping secret?” asked Barbara Blaine, president of the Survivors Network of those Abused by Priests (SNAP).

Meanwhile, a New Hampshire woman has filed suit against her former school district, alleging she was sexually abused by a guidance counselor more than three decades ago, several years before a different former teacher allegedly abused two other women.  Peter Hutchins, the attorney for the three women, said the link between the women's suits is that the administrators were the same in each alleged instance.  It “leads you to believe there was some type of breakdown, an environment of permissiveness and tolerance of this conduct," Hutchins said. The district’s attorney said he didn’t know if the accused guidance counselor, who is now nearly 80, was aware of the allegations.  The teacher named in the other two suits has been placed on paid leave for the time being.

Finally, the parents of a young girl are suing several police officers in a Galveston, TX federal court, alleging that two years ago, when the girl was just 12, the officers (who were in plain clothes) drove up to the girl’s house in an unmarked van and immediately grabbed her, saying she was being arrested on prostitution charges.  At that point, according to the lawsuit, the girl resisted the officers and started screaming for her father.  The officers responded by “beating her about the face and throat.”  Reportedly, the officers had been dispatched to the area to look for three white prostitutes.  The girl in question is African American—but the officers allegedly thought she was a prostitute due to her “tight shorts.”  The attorney for the officers denied that his clients engaged in any wrongdoing. 

Hospital Accountability Can Be Such a Burden…

Check out this article in Sunday’s New Hampshire Union Leader observing that New Hampshire, unlike 27 other states, “does not require hospitals to report serious, preventable medical errors to the state, the patient or to the family left behind if the patient dies as a result of the mistake.”

Luckily, steps are being taken to help reverse the trend.  As we’ve been reporting, Medicare has stopped footing the bill for so-called “never events” like leaving surgical objects inside people or giving them the wrong type of blood. 

And New Hampshire’s Medicaid financial director, Marilee Nihan, told the Leader that beginning this December, hospitals filing Medicaid claims will have to specify if the diagnosis existed upon admission.  “That will allow us to analyze what kind of errors we have and…whether the need for treatment was present on admission or acquired during the hospital stay,” said Nihan.

Still, the trend toward improving patient safety by holding hospitals accountable for their mistakes has its detractors.  Chief executive of Concord Hospital, Mike Green, bemoaned the fact that requiring such additional reporting would be “an additional burden to hospitals.”

Then again, given that 98,000 people die in hospitals due to medical errors each year,  we’re hoping that Mr. Green, and medical professionals like him, can dig deep and find the muscle to carry that extra “burden.”

Uranium-Tainted Water Anyone?

The Associated Press recently reported that a water company in Tamworth, New Hampshire knowingly delivered water to customers that was contaminated with uranium. Besides possibly causing cancer from radiation, uranium can also cause kidney toxicity.

Even more shocking, Lakes Region Water Company allegedly delivered the radioactive water during a three-week period last year from a well that the state Department of Environmental Services (DES) had ordered shut off in 2004.  At that time, the company told the agency that the well had been closed, with all pipes and electrical connections severed.  But three years later DES discovered the supposedly “out of service” well was still being used—and it was still loaded with uranium.

To add insult to serious injury, Lakes Region Water Company failed to properly seal its wells, which exposed local water drinkers to insects, animals, and E. coli, and left the town of Tamworth, New Hampshire without water for weeks.   Residents have now filed a class action suit to get some relief from the outrage.

DES official Dave Gordon told the Concord Monitor that unlike bacteria, where just a little can make a person sick, uranium-related risks increase along with the amount ingested.

JoAnne Rainville, a nurse in Tamworth who was one of hundreds of people exposed to the poisonous water, told the AP “The water was polluted with high levels of uranium and arsenic….People right now are living under a shadow of what are the long-range effects.”

No Caps in New Hampshire

I live in New York, I don't own a car and take the subway to work everyday.  So, I really like public transportation.

So I'm all for New Hampshire's plan to build a commuter line connecting suburban New Hampshire to Boston.  But they don't have to take away the rights of people who could be injured or killed to do so.

On Monday, the House of Representatives passed legislation that would arbitrarily cap damages should someone be harmed or killed.  Governor John Lynch has said he supports the legislation, so now it is up to the Senate next week.

The New Hampshire's Supreme Court has previously ruled that caps are unconstitutional in the 'Live Free or Die' state, however it may be a while to see how this legislation goes.