ThePopTort

New Yorkers for Patient & Family Empowerment Begins!

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!

Chewing Over Deterrence and the Tort System

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.

Juries and Nursing Homes - What Would We Do Without Them?

A couple years ago, Cornell University Law Professor Valerie P. Hans and Duke University Law Professor Neil Vidmar, leading experts in the field of jury research, wrote an article (based on lots of earlier research) in Judicature magazine dispelling boatloads of anti-jury myths about juror attitudes towards Big Business.  They said,

“[a]lthough the research finds that juries treat corporate actors differently, the differential treatment appears to be linked primarily to jurors setting higher standards for corporate and professional behavior, rather than to anti-business sentiments or a ‘deep pockets’ effect.  Members of the public, and juries in turn, believe that it is appropriate to hold corporations to higher standards, because of their greater knowledge, resources, and potential for impact.… [The] distinctive treatment that businesses receive at the hands of juries is a reflection of the jury’s translation of community values about the role of business in society.”

For all anxious senior citizens facing long-term care decisions, or boomers with parents in nursing homes today, take heart in yesterday’s verdict courtesy of a very wise California jury, which performed just intended: imposing maximum damages - totaling nearly $619 million - against one of the country’s largest nursing home chains, Skilled Healthcare, in a class action lawsuit for health code violations.  The case, on behalf of a class of some 32,000 patients, took seven months.  The company has 78 nursing facilities in seven states.  “’This is a really strong statement to Skilled Healthcare that they have to follow the law,’ said plaintiff's Attorney Michael Thamer, who delivered the closing arguments in the case and specializes in fighting corporate abuse. ‘They need to know that they are going to be held responsible.’”

One blog reported,

[The case] will continue as a judge decides whether to grant an injunction to trial attorneys and Humboldt County's district attorney, who are seeking a demand that the firm stop operating with fewer staff than mandated by the state.

[Plaintiff attorney] Thamer said the jury determined that the chain had engaged in “oppression, fraud or malice” in violating state staffing standards. He said the case was meant to underscore the importance of following state nursing home staffing laws, “because the consequences are so profound when they are not.”

Patricia McGinnis, executive director of the California Advocates for Nursing Home Reform, said she had never heard of such a substantial jury award in a nursing home case.

"It's not a verdict, it's a statement," she said. "If you're getting paid to provide the care, you've got to provide it."

Always important to keep in mind - civil juries really are the last line of defense against corporate abuse. 

California Nursing Home Verdict Tells a Bigger Story

We realize that we’ve been a bit focused on national calamities this week. But honestly, when it comes to issues we’re concerned about here at ThePopTort – corporate accountability, regulatory failures and the importance of civil courts as the last line of defense – the BP spill and the financial collapse (not to mention Toyota and the  Massey Energy mine explosion) are the gifts from hell that keep on giving. (Like here, here, here here.) 

While it may seem like we’re shifting gears with this story, we’re really not because it kinda sums up everything you need to know about the above.

Yesterday, a California jury awarded a family $1.1 million (compensatory damages) for elder abuse and neglect that led to the death of 79-year-old Frances Tanner in 2005, but it did something even more important.  It found that the behavior of Colonial Healthcare and its parent company, Horizon West Healthcare Inc., was "malicious, oppressive or fraudulent," and sent it a stern and unmistakable message: a $28 million punitive damage award, to compel the company to clean up its act and stop killing and harming patients.  One attorney reported, “I talked to jurors and they wanted to send a message and an incentive for the facility to spend more of its profits on patient care.”  This is exactly punitive damages's role, to hold a company accountable especially when regulations fail.  It shows how important it is for states to retain their power to protect the public health and safety. 

May we remind you that California has a severe cap in place for patients injured by medical malpractice. This fortunately does not extend to punitive damages.  But many states do severely cap punitive damages and there was actually a movement to broadly cap compensation in nursing home cases in the federal health insurance law – an effort that fortunately failed.

But what this case points up is the absolute stupidity of legislative  “caps”, especially when politicians in Washington or state capitals step in and take authority away from the state officials and state civil courts, deciding that they know best how to compensate someone for harm and how to hold a company responsible.  Here’s Democracy Now!'s take on the BP liability cap:

Nursing Home Abuse, Compensation Limits and MICRA

If you know anything about what goes on in nursing homes these days, like our friends do at NCCNHR: The National Consumer Voice for Quality Long-Term Care, you might find it hard to believe that any politician would want to limit compensation to seniors who are abused or neglected in nursing homes.  House Minority Leader Boehner’s health care bill, for example, would have imposed extreme national liability limits in nursing home cases.

Unfortunately, many states have done this already, like California’s broad MICRA law which imposes one-size-fits all caps on injured patients in that state.  But even MICRA has exceptions, and we’re hoping they apply in this highly unsettling elder abuse story out of Ventura County, CA, involving a 71-year-old woman named Maria Arellano.  

Arellano, who was left unable to speak after suffering a debilitating stroke, was living in the Fillmore Convalescent Center in 2006 when her family began noticing bruises on her body.  After expressing concerns about the bruises to center personnel, the family was essentially rebuffed—so they set up a hidden camera.  The resulting footage revealed that center employee Monica Garcia had been “slapping Arellano, pulling her around by the hair, bending her neck, fingers and wrists, and treating her violently in a shower chair.”

A civil suit was then filed against the center on Arellano’s behalf.  Although Arellano’s attorney, Gregory Johnson, offered to settle the matter for $500,000, the center refused, never even offering to resolve the matter with mediation.  “There was a lot of arrogance [on the part of the center],” said Johnson.

In the end, a jury awarded Arellano significantly more that her original settlement offer—which brings us back to MICRA—and more specifically, the question of whether it applies to the Arellano case.

Turns out, the California Supreme Court has said that in cases like Maria Arellano, where the abuse was clearly motivated by “malice,” the answer is no.  (See Covenant Care, Inc. v. Superior Court (2004); Delaney v. Baker (1999).)  We’re especially glad to know this, given that another resident who lived across the hall from Arellano at the center (also a non-verbal stroke victim) may have been subject to the same abuse.  His case is pending.

Unfortunately, for most other California patients, the nightmare of MICRA continues.

Documents Show Lilly Marketed Zyprexa for Dementia, Knowing It Did No Good

Regular readers of ThePopTort may recall that in February, we ran a piece suggesting that drug companies were fast becoming America’s “new bottom-feeders,” displacing the likes of say, telemarketers as society’s number one social pariahs.  Well, this next item sort of takes that premise to the next level—and then some.

A group of insurers is currently enmeshed in a nasty legal tussle with drug giant Eli Lilly over the company’s illegal “off label” marketing of the anti-psychotic drug, Zyprexa.  If you’re having déjà vu about now, that’s probably because the company has been in similar trouble before, downplaying the fact that the drug could cause significant weight gain and diabetes, while employing a variety of nefarious tactics  to convince doctors to prescribe the stuff to elderly people to help alleviate dementia, sleep troubles and irritability (even though it knew the drug didn’t work for those conditions).

But what makes this latest courtroom drama so interesting is that U.S. District Judge Jack Weinstein ordered the release of  internal Eli Lilly documents that illustrate just how far the company was willing to go to defraud the public in its efforts to make Zyprexa a “$6 billion” drug.

For example, documents reveal “Lilly employees compiled a guide to hiring scientists to write favorable articles, complained to journal editors when publication was delayed and submitted rejected articles to other outlets.”

And despite the fact that various internal studies “didn’t find Zyprexa was effective in treating dementia,” but did find “death rates among older dementia patients on Zyprexa...were two times higher than their counterparts taking placebos,” Lilly continued marketing to seniors, as they were the “2nd biggest money producing segment” of Zyprexa sales.

In one particularly disgusting 2002 email exchange, Lilly researcher Peter Feldman told the company’s global marketing director, Denice Torres, that Lilly intended to stop studying Zyprexa’s potential benefits for elderly people because doing so would risk “killing the goose that lays the golden eggs to save on poultry feed costs.”  Torres concurred, emphasizing how “elderly” customers remained an important “focus” of the company’s marketing efforts.

In yet another email, marketing executives advised sales people to downplay the weight gain associated with Zyprexa by characterizing it as a “manageable side-effect,” and to “continue to address the diabetes concern only when it arises.”  The document then went on to urge its readers: “Get back to selling!”

Let’s Hope Oklahoma-style Anti-Civil Justice Laws Don’t Put Seniors at Risk

It’s pretty clear that those of us at ThePopTort don’t like it when lawmakers tell jurors what to do by legislatively “capping” compensation that juries can award.  But when state lawmakers do go down that mistaken road, they must, at the very least, have exceptions for gross negligence or reckless misconduct.  That’s what Oklahoma recently did. 

And a story we found from the Tulsa World shows why exceptions like this are so important.  A whistleblower suit brought by a former housekeeper at the Cimarron Pointe Care Center (one of six Oklahoma nursing homes and one assisted living facility owned by one Eddie Martin), provides a troubling glimpse at exactly how egregious resident abuse can be.

The former housekeeper, Diana Harris, saw “a male resident who had been left in his own waste for so many hours that he had feces caked on to his leg from his hip to below his knee, and had wet himself at least one time."  When Harris reported this to a supervisor and two aides, the decision was made to leave the man “for the next shift”—which didn’t come on for another two and a half hours.  

Harris also reported that an elderly woman who was paralyzed below the waist and had soiled herself, managed to roll into the hallway and ask for help, only to be “laughed at” by nurses.  Still another resident, who was unable to sit up alone, was left on a bench in the shower, which resulted in her falling and being injured. 

Once the staff learned Harris intended to go beyond just alerting her supervisors to these abuses (which was obviously not working) and involve her husband, a retired private investigator with a reputation for exposing elder abuse, she was fired.

Needless to say, we know nursing home abuse, such as that witnessed by Harris, is a terrible, ongoing problem in America—and one that lawsuits can be instrumental in helping to remedy.   Here’s hoping that if any of these residents do bring suit, Oklahoma law allows the cases to go forward.

Louisiana Anti-Senior Citizen Bill Defeated!

Great news, civil justice fans! It’s an “ask and ye shall receive” kind of day here at ThePopTort!  Just one day after we told you about a horrendous anti-civil justice, anti-consumer, anti-senior citizen law that was under consideration in Louisiana, the state’s House of Representatives voted overwhelmingly to give it the old heave ho!

The measure, as we explained yesterday, would have made it extremely difficult for nursing home residents who have been injured by incompetent or negligent staff to bring a lawsuit.  And it would have severely limited compensation to these residents - subjecting them to the state’s draconian malpractice caps.

Thankfully, by a 60-38 vote, the bill was mercifully launched into the ether.

Rep. Chris Roy, (D-Alexandria), delivered an “impassioned opposition” to the bill, urging his colleagues “not to believe the malarkey” that the bill was somehow “consumer oriented.”

Props to the AARP, Louisiana Association for Justice, and other groups who fought hard to defeat this unbelievably mean-spirited bill!

Louisiana Bill Seeks to Deprive Civil Justice to Seniors

Several weeks ago, we celebrated the demise of a Tennessee bill that would have severely limited compensation for nursing home patients who had suffered the worst kinds of abuse and neglect.  The “Kill Old People Cheap Act,” as it had come to be known, thankfully, never made it out of committee.  Unfortunately, the same cannot be said for a similar bill currently under consideration in Louisiana.

The Louisiana law, known officially as “HB 72,” is aimed at restricting nursing home residents’ ability to seek justice in court for injuries caused by non-medical staff performing “patient-related services.” (That is, injuries incurred through common daily activities such as moving from place to place, eating, bathing, and dressing.)

In a nifty bit of legislative jujitsu, the law would accomplish this cruel objective by expanding the state’s current definition of “medical malpractice” to encompass these day-to-day activities—thereby subjecting them to the state’s draconian malpractice caps.

Needless to say, HB 72 represents the opposite of showing respect for one’s elders.

Ding Dong the Wicked Legislation is Dead!

Yesterday afternoon, the Tennessee Housing Subcommittee deadlocked (essentially killing) legislation pushed by the nursing home industry that would have limited compensation for nursing home patients who suffer the worst abuse and neglect.  

The “Kill Old People Cheap Act” as it was called by Representative Henry Fincher would have severely limited compensation to patients and families for injury or death caused by a nursing home.  As Rep. Fincher said

The problem with the bill is that there's no guarantees of patient care.  All it does is guarantee that corporations will make money at the expense of hurting and killing elderly patients. That's not the right policy in the state of Tennessee.

Advocates from AARP and others are planning on going back to the drawing board to see if they can’t “find an answer that's going to provide more quality for patients in nursing homes.”

Right on!