One of state lawmakers' oddest failures in the so-called “tort reform” wars is their seeming fear of questioning the insurance industry. Many lawmakers would sooner strip away the constitutional rights of everyday Americans than challenge this industry on what they do and why. What’s that about? Do they really think that premiums are simply dictated by the free market and the industry has nothing to do with why doctors in certain specialties or certain regions are price-gouged – and that there should be no industry accountability for this? (For those sharing that delusion, click here.)
For example, this week in New York City, the city council held a hearing about OB/GYN shortages in certain underserved urban areas. Every other word from the councilmembers was “insurance” - as if price-gouging of these doctors was somehow preordained. Of course, nothing could be further from the truth, as states like Illinois and California have shown. (For more, see CJ&D's testimony here.)
Yet no one from the industry appeared, no councilmember thought to blame or even question them, and no one seemed to care that when it comes premiums and claims data, New York State is one of the least transparent states in the nation. New York’s insurance laws are so bad that medical malpractice insurance companies basically disclose nothing to lawmakers or the public that could substantiate or refute their allegations about the financial health of the industry, why doctors are being charged certain premiums, or the impact of New York’s civil justice system. Meanwhile, public officials are asked to make policy recommendations based on outlandishly inaccurate information that cannot be analyzed by anyone except the industry’s own paid consultants.
So cudos to some smart Oregon lawmakers, who this week said, “wait a minute” to the “tort reform” politicians. Gov. John Kitzhaber says he’s pushing back until 2013 consideration of tort restrictions in medical malpractice cases, like “caps” on damages (which, by the way, are unconstitutional in Oregon) until a few more things can be studied. And among those things, hopefully, will be the insurance industry’s role in all of this. As Felisa Hagins, political director of SEIU Local 49, put it:
“I’ve also heard that malpractice insurance itself is the problem, and we don’t have a proposal to deal with the sideboards of insurance itself such as rate review, how money is transferred, how medical malpractice is sold in the state. I feel like we have to address that in some way,” perhaps, she added, similar to the way insurers are required to undergo rate review by the Insurance Division when filing rate hikes for individual and small businesses.
I had just about stopped watching “Headline News.” First it was their decision to have all their hosts try and convict Casey Anthony for murder as they sat in isolated TV studios, and then trashing the actual jury for disagreeing with them. (Or as manic host Nancy Grace elegantly put it: "Tot Mom's lies seem to have worked. The devil is dancing tonight." ) This was followed by Joy Behar getting the axe. What was the point of watching anymore?
Yet clicking through stations the other night, there was Erin Brockovich on HLN’s Dr. Drew Show! And she was breaking some “stunning” news (as Dr. Drew put it) about what might be causing the terrible Tourette's like symptoms hitting teenagers in Leroy, NY, which until now many have blamed “conversion disorder, or mass hysteria.”
But now we find out, as reported on Dr. Drew, that a1971 train derailment very close to where these kids go to school caused cyanide and 45,000 gallons of TCE to spill, and which was never cleaned up. Erin's team went to Leroy to start taking soil samples at the school – but were sent away.
HLN CORRESPONDENT JIM SPELLMAN: In that statement, Superintendent Kim Cox said the school district had hired an environmental consulting firm to review previous test results. But after being denied access to school grounds, [BOB BOWCOCK, ENVIRONMENTAL INVESTIGATOR] remains skeptical.
BOWCOCK: I will tell you that usually in settings or situations like this when I`m confronted by officials barring access to something, they usually have something to hide.
SPELLMAN: After taking some water samples at nearby residences, Bowcock headed to the derailment site where in 1970, over 30,000 gallons of toxic solvent TCE spilled after a train went off the tracks. Bowcock said he was surprised to find an untended cleanup site, some of the storage drums were leaking and corroded.
BOWCOCK: But what they`ve done is they`ve left 55 gallon drums of the soil, when they drilled the monitoring well, the contaminated soil came up because if you put it on (ph) on a drum, it should go to a hazardous landfill.
It`s so - it`s so hazardous that they had to put this berm in to protect the stuff from spilling back out. You have a sign like that, and 55 gallon drums rotting away, leaking material out into the environment right now, draw your own conclusion.
…
PINSKY: And Erin keeps telling me this is a big deal. This is something unlike anything either she or Bob has ever seen in their career. Tell me why.
ERIN BROCKOVICH, ENVIRONMENTAL ACTIVIST: Well, for some of the reasons, I mean first of all, for a couple of factors. I mean it took agencies so long to respond to a spill.
PINSKY: Twenty-five years.
BROCKOVICH: Twenty-five years.
PINSKY: So was there leeching of the spill for 25 years?
BROCKOVICH: Absolutely.
PINSKY: There’s documentation of wells being contaminated during that time.
BROCKOVICH: Absolutely.
PINSKY: People are getting jugs of water sent to them so they don’t drink the well water by the railroad company.
BROCKOVICH: Absolutely.
PINSKY: And then when they finally do respond, Bob, you say the site itself has been rendered into a toxic dump?
BOWCOCK: Oh, absolutely. They`ve gone in and excavated some of the materials to do their testing, put it in 55 gallon drums and left in there to rot and just go right back into the environment.
PINSKY: OK. So are we - are we saying that - I just want to add up the score. Summarize it for me, Erin, if you could, that this is an extraordinary situation. Bob, the dump site is unlike anything you’ve seen where the remediation site has become its own toxic spill.
BOWCOCK: Yes.
The EPA says there’s no connection to the train derailment. Others say, "if this spill happened in 1971, why are we only see health problems now?" Brockovich responded:
BROCKOVICH: But very quickly just to share with you what people are reporting to me from the area, they are reporting that they grew up in that area and they`ve seen and they know of dumping. They’re reporting as adults now that as children they were told not to drink the water in or around the ball field.
I have people reporting to me who grew up in the area whose sons have tics, who were born with rare birth defects. I have children who grew up in the area who are reporting to me they had bone cancer at the age of 10. I have children who grew up in the area who are reporting to me as young adults in their early 20s that they`ve been diagnosed with acute lymphatic leukemia.
I`m getting reports from people who still live their on Maple Avenue, that there’s eight known families with very rare cancers, moving on to Erie Street, there’s more cases of cancer being reported. I have people reporting to me that their two and a half-year-olds have tic-like syndromes.
PINSKY: I`m going to stop you because we can’t substantiate this, but we get - we get the idea.
BROCKOVICH: Right. I understand. And these are all reports that we are clearly substantiating as well.
But I want something that people to understand for 21 years that I’ve been doing this, these people who come from these areas, they’re the first not to panic. They want answers and they’re reporting information to me that can help us get answers for these 12 girls, for them, and for the community as a whole.
These people have a lot better things to do in their life than sit around and make up these symptoms that can be clearly substantiated and send them to me. So what it`s telling us is that, yes, the 12 girls are exhibiting problems, but yet many other people are as well.
The constant drumbeat of the attacks on consumer protection laws by big business and their friends on the editorial board of the Wall Street Journal is making me think, wouldn’t it just be easier to just let corporate miscreants do what they want? So what that the giant medical device industry keeps paying off doctors to implant dangerous heart devices into patients. Some measly DOJ fine isn’t gonna stop that, right?
If you’re with me, I want to tell you that there are some great things happening around the country. In fact, speaking of hearts, in Ohio, the Cleveland Plain Dealerreports,
While we're in the middle of one of the busiest shopping seasons of the year, the Ohio House is preparing to tear up the Consumer Sales Practices Act as a little gift to the state's auto dealers [with] a change that would make it easier for companies that cheat consumers to wriggle out of serious consequences. … It wouldn't do away with the law wholesale. Instead it surgically removes the law’s heart.
Make more sense than giving this law a defective pacemaker. Then in New Jersey, Sy Larson, President of AARP New Jersey writes in the Daily Record,
Some of the regulations that currently protect all of us, as consumers, may no longer be enforced if some new rules being considered by the New Jersey Division of Consumer Affairs are implemented.
Indeed, these new rules being considered by the division actually would allow businesses, in some cases, to ignore established laws that protect consumers — without notifying the public of the act. …
Consumer protections such as The Used Car Lemon Law and The Telemarketers Do Not Call Act are just two of the many consumer protections that could be rendered essentially worthless.
Look, you know you’re absolutely dying for more telemarketers in your life. Don’t you lie to me!
Now let’s turn to the property/casualty insurance industry, who were skewered pretty badly by a Huffington Post piece today:
Because of their protective role in the lives of ordinary citizens, insurers have long operated as semi-public trusts. But since the mid-1990s, a new profit-hungry model, combined with weak regulation, has upended that ancient social contract.
Weak regulation? That's just silly. It's no regulation, more like it. In New York, writes the Buffalo News:
Insurers in New York no longer have to file their rates with regulators and obtain approval before issuing commercial insurance policies to companies, nonprofits or government agencies that are considered large and sophisticated.
Ooh, sophisticated! So in other words, just let the insurance industry regulate itself cause the "free market" works so well when it comes to insurance.
Actually, that’s a little tease. Stay tuned tomorrow – we’ll have a lot more on that! Promise.
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.)
If you live in New York State, there’s a new health care sheriff in town – us!
A brand new website has been launched for a new campaign called New Yorkers for Patient & Family Empowerment (Patient & Family campaign), a joint project of the New York Public Interest Research Group (NYPIRG) and the Center for Justice & Democracy. The site is all about empowering us, the patient (as well as families and caregivers), as we interact with the increasingly complex healthcare system, strengthening our access to information and improving healthcare quality and safety.
Writes Patti Singer, health reporter at Rochester’s Democrat and Chronicle, the site “provides links to state data on hospitals and nursing homes. That information can be a little dense to the uninitiated, but it’s worth the slog to get your bearings. The site provides links to complaint lines and services such as respite for people caring for elderly loved one. Explore for yourself at http://www.patientandfamily.org/."
There is information about filing complaints about hospitals, nursing homes, adult homes, and managed care. There are links to websites that allow consumers to compare safety information on doctors, hospitals, and nursing homes. And it’s arrival on the scene is none too soon. As the website notes,
A dozen years have passed since the Institute of Medicine released its shocking 1999 report, To Err Is Human, yet little has changed in the daily experience of patients in hospitals and other medical centers. That report concluded that between 44,000 and 98,000 Americans die each year from medical errors — the rough equivalent of the downing of one jumbo jet per day — making medical errors the leading cause of death in the United States. It cited medical errors as a major factor in the nation's high health care costs, estimating the annual cost at $17 million or more.
Despite this clarion call for safety, a November 2010 report by the Health & Human Services Inspector General found that one out of every seven hospitalized Medicare beneficiaries is seriously harmed in the course of their care, and at least 44 percent of these events are preventable. So while some health care providers have improved safety, substantial risks remain unaddressed and new risks continue to arise.
This continued failure to address recurring problems of patient safety is unacceptable. Promises and assurances that health system providers are "doing the best they can" are not enough. The New York Public Interest Research Group (NYPIRG) and the Center for Justice & Democracy (CJ&D) have worked in coalition on many occasions over the years to protect patients' rights and promote transparency in healthcare. In light of the 2010 Inspector General report's disturbing findings, our groups realized that a more sustained effort is needed. Our organizations have jointly launched New Yorkers for Patient & Family Empowerment in order to focus greater attention on these issues and to empower patients and their loved ones to achieve greater safety and dignity for patients.
Yet another movement worth spreading around the country!
New York State is becoming even more fractured over fracking (see our earlier coverage here). Hydro-fracking, you may know, is a gas-drilling method that involves blasting millions of gallons of water and chemicals into wells at high pressure, often creating significant methane gas releases and contaminating drinking water supplies.
First, take a look at this Thomson Reuters story, reporting on two ideas now being considered by New York State lawmakers, “that would give property owners more options and, perhaps, an upper hand in court, including shifting the burden of proof from landowners to gas companies and creating an industry-supported remediation fund.” Here’s specifically what’s under consideration:
In New York, as in most other states, the plaintiff carries the burden of proving not only that the company caused the pollution, but that it did so through negligence. The time and expense required to mount such a claim and see it through the appeals process can be prohibitive to many homeowners.
A bill that stalled in both houses of the legislature this year would impose strict liability on gas companies, essentially stripping away the requirement that plaintiffs prove negligence. But that proposal, industry attorneys said, may be untenable because gas companies could be held responsible when natural phenomena trigger the migration of gas into water supplies.
Natural phenomena. What, like fracking causes earthquakes? Yet another great side-benefit!
The other proposals is a remediation fund proposed by Comptroller Tom DiNapoli. Although Thomson Reuters writes that this proposal “is aimed at keeping some cases out of court altogether,” DiNapoli’s office actually wrote us in September and said, “not true.” So we shall see.
Meanwhile, Thomson Reuters reports, “State officials have said if fracking is officially sanctioned, the DEC could begin issuing drilling permits as early as next spring, but DEC Commissioner Joe Martens said last month that it could take the agency longer to sift through the thousands of comments.” But some cities are already saying a big “no thank you” to that. First Albany and Buffalo – and now Syracuse, or as conservative columnist David Brooks might call these cities, hotbeds of “extremism” and “not-in-my-backyard activists.”
Everyone’s entitled to their opinion, I guess. Watch one of them - Kathleen Joy, Syracuse Council majority leader - on Democracy Now today. Sound like an extremist to you?
Don’t get me wrong, I'm not one of those anti-government types complaining about “too much government” or holding signs like “Government, keep your hands off my Medicare.” I like my roads, fire departments and socialized medicine just fine, thank you very much.
But governments – and people who work in government - sometimes do very bad things to other people. Shouldn’t they be held accountable just like anyone else? There have been a few interesting stories in the news lately which highlight this point.
First of all, the deadline for filing claims in the Indiana State Fair stage collapse, which we’ve covered here, was Tuesday, and the number of claimant has now reached 100. But because of the Draconian $5 million cap on liability for the state, most of the injured will get nothing, and the catastrophically-injured won’t get anything close to what they need to survive.
To provide another sense of the inequity of this, contrast this situation with 15 women who were raped and molested by jailers Oklahoma. Yesterday, the county agreed to settle those claims for $13.5 million.
In New York this week, a few “bad government” stories have also come to light. The New York Times writes about a preemptive lawsuit being brought by a tenant named James Whelan who is fighting eviction, but the suit is about keeping his name off a tenant blacklist created by state government for tenants who are trying to stop illegal evictions! Incredibly,
The New York State Office of Court Administration sells to private companies the names of everyone who is sued in housing court for eviction on the very day the case is put on the calendar. Those companies then compile the information and sell it to landlords looking to avoid difficult or irresponsible tenants.
But those screening lists do not make a distinction between renters who ultimately win their cases (perhaps they withheld rent because they had no heat) and those who lose …[!]
Mr. Whelan’s lawyer, James B. Fishman, says this practice has a chilling effect on tenants’ rights, as some people opt to move out rather than face their landlord in court and risk being blacklisted for years. (Companies that curate these lists are supposed to purge names after seven years, but some are notoriously sloppy.)
In the meantime, while New York City’s chief lawyer Michael Cardozo is running around town arguing that the legal rights of everyday New Yorkers should be stripped because their injuries are too costly, the city itself just had to pay $70 million to the feds and a whistleblower because the city was defrauding Medicaid. The New York Timeswrites:
Preet Bharara, the United States attorney for Manhattan, reacted angrily to Mr. Cardozo’s contentions that the settlement reflected a mere technical problem, and that it accounted for “less than half of 1 percent” of the $18 billion cost of the program in the city over 11 years. He noted that the Justice Department’s original complaint, filed in January, had alleged tens of millions of dollars in improper billing, and that the settlement was within that range.
“It is unfortunate that Mayor Bloomberg’s counsel would contradict the stipulations that he personally signed and submitted to the court, in which he acknowledged that the settlement was fair and reasonable,” Mr. Bharara said. “The city’s argument that this case was about ‘paperwork’ was specifically rejected by Federal District Court Judge Jed Rakoff when he denied the city’s motion to dismiss this case.”
How about just following the law? That might help.
Do you know that if you live in New York State, insurance companies don’t have to publicly disclose anything to you about why your insurance premiums are going up? New York State is so non-transparent that it’s big news when any of them agree to release anything.
So let me tell you about this big news: eight health insurers in New York State, with 90 percent of the market of small group and individual insurance plans, have now - gulp – formally ended their fight to keep secret documents showing why they want rate hikes. Now they say, “the filings were no longer due confidentiality under a ‘trade secrets’ exception to freedom of information laws.” (As the New York Timesnotes, “Some of the insurers have argued that disclosure would hurt their competitive position, and that the filings were too technical to be understood by consumers.” Kinda like how credit default swaps ended up costing you your job and your home. Too technical.)
Says Benjamin M. Lawsky, superintendent of the State Financial Services Department,
“Transparency will promote competition and allow the public to make effective comments as part of the rate review process. I applaud these companies for their decision and hope the remainder of the industry will soon see the light.” …
Elisabeth Benjamin, founder of Health Care for All New York, a consumer advocacy group that has long battled for disclosure, said New York’s experience would have a domino effect nationally. “Consumers in Maine had to go to court to get some of this stuff that we’re going to get now,” she said. “I think the industry is going to have to do this everywhere.”
Well wait a minute. This “trade secret” argument is what companies always use to keep information from the public. If New York health insurers are finally giving in, forget the other health insurance carriers. What about the rest of the insurance industry – in New York State? Their rate filings are all still secret.
Actually, it just so happens that yesterday, J. Robert Hunter, Director of Insurance for the Consumer Federation of America (and former Federal Insurance Administrator and Texas Insurance Commissioner), noted in a statement before a New York State work group examining that other controversial health care insurance line – medical malpractice - that “the lack of transparency in this state is a serious problem and surely results in less patient safety.” He goes on to list several types of missing data, the release of which would benefit policyholders and policymakers alike. In fact, as we noted before, when Illinois forced out this data and better regulated rates, premiums for doctors dropped, competition among companies increased and new companies were able to enter the market.
Seems so smart. Wonder if those Occupy folks have noticed yet?
I’m glad someone else caught CNN’s new celeb “anchor du jour” Erin Burnett offering a “condescending and reductionist” analysis yesterday while covering the Occupy Wall Street movement. Of course, it isn’t the first time this ex-Goldman Sachs/Citigroup employee used her TV perch to serve as a mouthpiece and apologist for Wall St. abuses, but at least people are noticing.
Speaking of Occupy Wall Street, which is marching today along with at least 15 major unions not too far from ThePopTort’s offices in Lower Manhattan, a group of them have now filed suit against New York City and the NYPD for tactics used in arresting 700 peaceful protesters on the Brooklyn Bridge last weekend.
A lot of people have been taking note of how the NYPD has been handling this protest, which is mostly taking place in an area that has been a virtual police state since 9/11 - just between the World Trade Center and the New York Stock Exchange. We know. We used to work a couple blocks away. (Just forget trying to cross a street without navigating block-long barricade.) While the NYPD has been getting lots of media attention for their anti-terrorism work, they’re also getting tons of attention for their abuses. And it’s not just the Occupy Wall Street protestors or the city’s Muslim community that has grounds to complain.
[New York City] paid out $135 million to settle claims made against the NYPD last year - a soaring 71% jump in settlements against the department from a decade ago.
The surge - part of a half-billion dollars paid out by the city - included $56.4 million for alleged police misconduct, including excessive force and false arrest, an analysis by City Comptroller John Liu found.
Advocates said the number marks a disturbing trend: in 2003, Mayor Bloomberg’s first fiscal year in office, the city paid out $68 million in NYPD tort claims.
“This number and the increase over past decade cry out for close monitoring of the police,” said Donna Lieberman, head of the New York Civil Liberties Union.
“The NYPD’s hyper-aggressive tactics create a situation that is ripe for litigation,” she said.
And as we also noted, the solutions to this “pay out” problem lie not with taking away people’s rights but with reducing the misconduct that leads to claims in the first place. Lets hope it doesn’t escalate now.
Our legal system protects us all from injury and disease, whether or not we ever go to court. This is because the prospect of “tort” liability deters manufacturers, polluters, hospitals and other potential wrongdoers from repeating their negligent behavior and provides them with an economic incentive to make their practices safer. This phenomenon is not a fabrication invented by attorneys. It has been recognized and documented by everyone from conservative economists like Richard Posner, to Rand’s Institute for Civil Justice, to William L. Prosser, the father of modern tort law. (Just ask any first year law student.)
Imagine the amount of money the civil justice system actually saves the economy in terms of injuries and deaths that are prevented due to safer products and practices, wages not lost, health care expenses not incurred, and so on. Weakening the tort system with laws like "caps" on damages lessens this deterrence function, makes corporations more unsafe and costs us all more money. Pretty basic.
To say this message is often lost in the current political discourse about the tort system is a bit of an understatement. More like its been ground down, chewed up and spit out into something not quite recognizable anymore.
To wit, in Tennessee, a new law goes into effect this week that will "cap" damages and severely limit the legal accountability of nursing homes for abuse and neglect, which comes,
[J]ust a couple of years after the legislature in 2009 vastly reduced oversight of the 325 nursing homes in the state by eliminating regulations mandating that nursing home operators file detailed reports on adverse events affecting patients. Also eliminated were requirements that the state investigate those incidents. Officials said the change was needed so they could spend their time investigating more serious complaints.
Yeah right. According to the Tennessean newspaper,
A report issued this year by the U.S. Government Accountability Office gave the state Health Department failing scores for its performance in investigating serious complaints against nursing homes. It said there was a backlog of cases that had gone uninvestigated, and it cited a staff shortage as a factor.
Really, the last thing Tennessee should have done is block the critical last line of defense against unsafe nursing homes – the tort system. Yet that’s just what they did. The paper reports,
The new limits on lawsuits could shut down yet another avenue of complaints — the courtroom. Plaintiffs’ lawyers candidly admit that the new caps will keep many nursing home malpractice claims from ever getting to court, in part because lawyers will be less inclined to take the cases. … Tennessee nursing homes already rank near the bottom nationally in two key areas of care, according to federal data. Without the threat of lawsuits, some attorneys and advocates think, it will sink even lower.
Meanwhile, in another area of the country, Michael A. Cardozo, New York City’s corporation counsel, is calling for, among other things, “caps” on compensation for people killed or injured due to negligence in city hospitals and for other city misconduct - in order to save the city money.
As we’ve noted, the largest portions of total payouts against the city have always been for police misconduct and horrendous preventable injuries – brain damage, blindness, etc – due to negligence in city hospitals. Patient safety efforts in city hospitals remain abysmal and they promise to only get worse now that all hospitals in the state will no longer be accountable for causing brain damage in newborns. Why on earth would the city want to reduce payouts by cutting off people’s legal rights, further weakening the deterrence function of the tort system leading to even more unsafe hospitals, and to accompanying increases in cost and physician utilization inherent in caring for newly maimed patients?
And here’s the biggest irony. Reports the New York Times,
… Mr. Cardozo also pointed to the city’s own use of lawsuits to generate revenue, as well as defenses that have helped the city to protect its finances.
The city, for example, won a $104 million verdict against Exxon Mobil for allowing a gasoline additive to infect groundwater in Queens, Mr. Cardozo said. It also won $9.5 million from Amtrak for failing to reimburse the city for the cost of fixing two bridges, he said, and $8 million from the state for improperly charging the city for Medicaid expenditures.
The deterrence function of the tort system isn’t the only thing lost on Mr. Cardozo. His own hypocrisy seems lost as well.
All opinions expressed on this blog are those of the authors only. Any disputes should be addressed to the authors or commentators. The Pop Tort invites comment to further the debate on issues addressed, but we reserve the right to deny or remove any post or comment.
