ThePopTort

“Tort Reform’s” 800-Pound Gorilla – The Insurance Industry

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.

Now, let’s hope the lawmakers get there, too.

Comparing States on the State of Patient Safety

It’s June, so it must be time for another patient safety study!  Actually, it could be March or August or December.  New patient safety studies seem to be coming out regularly these days, all of which reach the same conclusion – things are shockingly bad and only getting worse (and we would add, especially as more states enact laws making it harder and harder for injured patients to hold unsafe hospitals accountable in court.)   

Studies have just come out in two states – California and Oregon- which coincidently are states that are right next to each other, with one having had a $250,000 “cap” on compensation for patients for 36 years (California) and one with no cap (Oregon) as it is unconstitutional there.  Let’s compare!

First, Oregon.

At least 34 patients died as a result of preventable mistakes in Oregon hospitals last year, the same number reported in 2009 to the Oregon Patient Safety Commission.

While the number is small in comparison to the tens of thousands of people safely restored to health in hospitals each year, it is one of several indicators of stalled progress in reducing serious medical errors. In each of the past two years, for instance, Oregon hospitals reported 10 wrong site, wrong patient, or wrong procedure errors. Surgical teams accidentally left objects in patients 21 times in 2009 and 18 times in 2010, despite the commission setting a target of eliminating this type of error. 

So that's not so good.  But is California any better?  Hardly.  There, 12 hospitals were just "fined by state regulators for mistakes that killed three patients or threatened the health of others, state regulators announced Thursday."   These tragic deaths are bad enough but check out the stories of patients who actually survived:

—A 25-year-old woman having a baby had to be revived after she received intravenous drugs to control labor pain instead of a drug to control uterine bleeding at Contra Costa Regional Medical Center in Martinez. The woman had seizures and her heart stopped.

Health director Dr. William Walker said the medical center has taken measures to prevent the error from happening again and that he welcomed the attention to help educate other hospitals about the mix-up that led to the error.

—Last year, a patient was given 10 times the proper dosage of a drug used to treat an abnormal heart rhythm at Promise Hospital of East Los Angeles. The patient suffered a slow heartbeat and plunging blood pressure.

—In 2009, a patient being treated for a kidney stone at AHMC Anaheim Regional Medical Center in Orange County had a stent, or tube, inserted on the wrong side of the body—the left side. The stone was on the right side.

The hospital released a statement saying it has implemented a corrective plan to ensure that no similar error is repeated.

—Last year, several patients at Emanuel Medical Center in the Stanislaus County community of Turlock improperly received the anti-nausea drug droperidol. A federal warning indicates that the drug can cause life-threatening heart rhythm problems and should not be used on people with heart rhythm problems. Regulators said some patients who received the drug had such problems and others didn't have the required electrocardiogram testing before it was administered.

Emanuel spokeswoman Pennie C. Rorex said the hospital has had no further issues since implementing a state-approved rectification plan that included the removal of droperidol from its supply.

—A bit of a fetal scalp electrode, used to monitor fetal distress, was left in a woman who had a cesarean section in 2008 at Kaiser Foundation Hospital in San Francisco.

Area manager Christine Robisch said such situations are extremely unusual, but that staff responded to the incident by immediately taking care of the patient, reporting the incident to the state and taking corrective action.

—A fragment of a surgical sponge was left in the eye of a patient who had eye surgery in 2009 at Mills-Peninsula Medical Center in Burlingame, in San Mateo County.

—A foot-long metal retractor was left in a 66-year-old woman who had abdominal surgery in 2010 at Scripps Memorial Hospital in Encinitas in San Diego County.

In 2009, a 28-inch-long guide wire used for a cardiac catheterization on an 82-year-old patient at Scripps Memorial Hospital in La Jolla was left in the femoral artery and only discovered 29 days later during a second catheterization.

Scripps spokeswoman Janice Collins said the hospitals self-reported both incidents to the state and notified the patients—who were unharmed—and their families. She said changes were implemented to prevent such incidents from occurring again.

Palomar Medical Center, Pomerado Hospital, Promise Hospital and Mills-Peninsula Medical Center did not return calls from The Associated Press seeking comment.

The results speak for themselves, right?  I’m hoping that one of the reasons President Obama continues to oppose capping compensation for patients are studies like this.  And the one sure to be released next month, and the next month, and so on and so on and so on.

When Child Sexual Abuse Calls Out for Civil Justice

Today we focus on an issue that is extremely disturbing and sad – the sexual abuse of children.  The civil justice system has become an extremely important vehicle for abuse victims to obtain justice.  It’s something to remember when politicians start talking about enacting legal obstacles that would prevent injured people from getting into court, or limit their compensation  - i.e., “tort reform.”

First, a trial has begun in Portland Oregon against the Boy Scouts brought by a man who, when he was about 12, was sexually abused by a scout leader – a convicted pedophile who admits to doing this.  The New York Times reports that “Scout leaders have been found guilty of sexual abuse crimes in various cases across the country for more than two decades” and now, lawyers say, files show that this went on with the knowledge of national and regional scout leaders.  This was even after complaints of abuse arose, and “sometimes even after they had been convicted of sexual abuse.”  They also say claims of abuse began “as early as the 1920s.”  (The Boy Scouts say “the files demonstrate proactive efforts to stop it.”)

In Delaware, the legislature is considering a bill “that would allow victims of child pornographers to sue their victimizers in civil court and win mandatory minimum judgments of $150,000.”   The bill would also extend the statute of limitations from two to three years, or until “the end of a criminal prosecution or the victim turns 18 -- whichever comes last.” 

Meanwhile in Delaware, fallout continues in the case of Dr. Earl B. Bradley, the pediatrician who allegedly raped or sexually abused 103 children.  The dean of Widener University School of Law is “independently examining how the doctor continued to practice despite at least a decade of questionable behavior.”  In fact, a lawsuit brought on behalf of a 3-year-old girl has now been filed against the Medical Society of Delaware and three Delaware doctors saying, among other things, that they failed to act on warnings of Bradley’s “unprofessional conduct,” including a complaint filed by Bradley’s sister (which the medical society denies).

Speaking of statutes of limitations, this week a hearing was held in Connecticut that would “make Connecticut the fourth state in the nation to eliminate the civil statute of limitations in child sexual abuse cases.”  Some witnesses raised the Roman Catholic Church scandals. 

Speaking of which, The Daily Beast reported on St. Patrick’s Day that in the United States, “more than $1 billion has been paid to victims” with most receiving “$5,000 and $500,000, depending on the length and level of abuse.”  But in Ireland, where a report last year said “abuse in church-run homes in Ireland was ‘endemic,’” the Bishop of Ferns, Denis Brennan, has asked parishioners to help the Church pay for compensation to abuse victims, prompting denunciations from outspoken singer Sinead O’Connor (a victim of childhood violence herself,) who said, “To expect little old ladies and little old men to cough up money for sex abuse scandals is outrageous.”

In a country with a strong civil justice system grounded in notions of accountability, like here in the U.S., it’s hard to imagine such a thing.  We’re just sayin’

Today’s Distressing Safety Checklist

If you’re planning to go outside today, don’t get hurt, be careful driving, watch what you eat – or at least, be very very careful!  Here’s what we found in the news today:

1. A revealing yet frightening column in the New York Times written by medical students who say that the culture of medicine fails miserably to emphasize and teach patient safety.  Contrary to those who blame malpractice litigation for the culture of secrecy in medicine (we don’t! ), this column reveals that even medical students who see errors and try to speak up “run the risk of being labeled ‘troublemakers’ and ‘naïve,’” and they “suggest a pressing need for a cultural shift, one that dissolves the secrecy surrounding medical errors and allows trainees and seasoned doctors to speak openly about their mistakes and those their colleagues have made.”  Can we please stop blaming injured patients and their lawyers for this now?

2. Following evidence at trial that a unit of Kimberly-Clark “encouraged surgeons to use a ‘pain pump,’ in an unapproved and unsafe manner” that “caused severe cartilage deterioration” and left a “38-year-old father of four with constant pain and a disabled arm,” a jury awarded him $4.75 million, setting the stage for other cases. 

3. Speaking of medical devices, especially the really dangerous ones that manufacturers can now produce without any fear of liability, the FDA just approved a new Medtronic heart valve “under its humanitarian device exemption policy” i.e., “a device is approved for limited use on the assurance that its health benefits outweigh the risk of injury or illness.”  And somehow they’re trusting Medtronic on this?

4. As to Toyota’s sticking-throttle recall, turns out that “it knew there were problems with accelerator-pedal assemblies from supplier CTS late last year” but did nothing, and “Toyota continues selling models involved in the recall, expecting that they work fine because they are new and the throttles don't seem to begin sticking until the vehicle ages.”  Yikes!

5.  And then on the food front, “A Rhode Island meat company recalled 1.24 million pounds of pepper-coated salami on Saturday, after officials conducting a months-long, multistate investigation of a salmonella outbreak compared shopping receipts of those who got sick. ..the recall by Daniele International Inc. comes amid an outbreak that's sickened 184 people in 38 states since July."

Uh, on second thought, maybe stay home today?

In the News

Wyeth is the “wind” beneath the Medical Device Act’s “wings!”

On the other hand, the Peanut/Salmonella fiasco hasn’t delivered the faintest breeze under the FDA. 

Disturbing news about the EEOC—add it to the post-Bush clean-up list…  

We’ve said it before, but it’s worth repeating—the Supreme Court finally got it right with the Williams case—Bob Peck deserves his trip to Paris (as well as the Oregon lawyers and Ms. Williams, who fought the tobacco industry for 10 years)!

Baby formula—it isn’t rocket science…or is it?

Shareholder’s are taking their place in line in an effort to hold AIG accountable.

Speaking of AIG…What is the opposite of loyalty, remorse, and/or shame?  Check out Hank Greenberg’s recent performance in front of Congress.

Philip Morris USA v. Williams, Back Before the Supreme Court!

Well, civil justice fans, we would be remiss in not commenting on yesterday’s U.S. Supreme Court arguments in the nine-year, Homeric Odyssey of a case, Philip Morris USA v. Williams.  Unfortunately, the size and scope of the story are such that it’s impossible to thoroughly discuss within the narrow confines of this humble blog without sounding, as Tom Cruise famously described Matt Lauer, “glib.”

Suffice it to say, as Williams’s attorney, Robert S. Peck of the Center for Constitutional Litigation (we’re big fans of Bob) pointed out: “This case involves a massive market directed fraud driven by high level decisions to deceive customers and knowingly endanger their health in order to generate enormous profits.”  At issue are punitive damages awarded and upheld twice by the Oregon courts.  The Supremes can’t seem to let it go!  We hope the Court sides with Bob and his client.  On the other hand this court has been judicially active beyond belief, so you never know.

We strongly encourage readers to follow the case closely (and we’ll do the same!) as the outcome could have far-reaching implications for punitive damage awards, which are a proven and essential tool in deterring corporate misconduct and protecting consumers.

In the News...

Last month we briefly mentioned a couple of wacky ballot initiatives in Oregon that would have made it harder for people to gain access to their courts. Over the weekend the proponents of such measures conceded defeat after failing to obtain enough signatures. I guess Oregoners want their civil justice system.

The victims of the Exxon Valdez oil spill still don't have closure with their compensation from the oil company.

The American Association for Justice released a report last week ranking the worst insurers for consumers

The rankings show a distinct pattern of insurance industry greed amongst 10 companies that refuse to pay just claims, employ hardball tactics against policyholders, reward executives with extravagant salaries, and raise premiums while hoarding excessive profits.

In the News...

The NY Times reports on new study showing that quality of health care varies widely depending on your race and where you live. (NY Times)

Say whaaaat?  An actor in a fake gun fight at the "Wild West City" theme park was shot by a real bullet.  He's now paralyzed and has filed suit. From the article:

"It's reckless misconduct in operation of the theme park in allowing a 17-year-old who had no firearms training to have access to firearms and live ammunition," said Andrew A. Fraser, lawyer for the wounded actor, Scott Harris.

Umm....yeah. (AP)

Ballot initiative madness in Oregon.  A conservative group is pushing two initiatives this year that would make it harder for people to gain access to the courts. (AP)