ThePopTort

A Tale of Two (or Three) Settlements

If Charles Dickens were to come back to earth, I’ve got a great novel idea for him because let me tell you, the plight of the French peasantry has nothing on these folks.

As we’ve been covering here at ThePopTort, the horrendous situation created by Indiana’s $5 million overall incident “cap” on damages is finally hitting home.  Yesterday, Ken Feinberg, who has done such a bang up job for victims of the Gulf oil spill on behalf of BP (not really), and who was tapped to do the same on behalf of the state for victims of the Indiana State Fair stage collapse, announced yesterday that the families of the seven people killed will get $300,000.  And get this (not that we should be surprised).  Just as he did for BP,  Feinberg is pressuring these families to sign quickly and requiring a complete liability release, so if they take this paltry sum, these families can’t even challenge the cap in court:

If families and victims agree to the payments, they wouldn't be allowed to sue the state. Indiana law caps the state's liability at $5 million, and some victims' families have already filed lawsuits challenging that limit. The offers must be accepted or rejected by Monday....

Attorney Mario Massillamany said his client Lisa Hite suffered head injuries and a fractured heel but was offered only about $7,000. Her medical bills are already six times that amount, let alone her lost wages and future bills.

Plus they offered "$500,000 to a 17-year-old boy who suffered full-body paralysis."  Yet Indiana isn’t alone in its cruelty.  On Monday a Philadelphia area jury awarded $14 million to a young women who had to have her leg amputated while still a high school student, when a school bus plowed into a group a students.  But Pennsylvania has a $500,000 liability cap for municipalities and school districts, so the judge is going to have the ignore the jury (whose award included $3 million so she can get things like prosthetics) and reduce the award to the cap – if she’s lucky.  As AP writes, like Indiana’s law,

The $500,000 cap applies to all awards stemming from a single incident. And seven others have sued over injuries from the crash. If the cap is upheld, Zauflik could be left to share the $500,000 with any others who win damage awards.

Meanwhile, yesterday a big settlement was announced for the families of those 29 miners killed last year in the Massey Energy Upper Big Branch mine explosion in West Virginia.  The company, now owned by Alpha, will pay $46.5 million to the families of those killed and to the two co-workers who lived.  That’s $1.5 million per family.  The company will also “spend $80 million to boost safety in all of its underground mines and set up a $48 million fund for mining-safety and health research. Alpha Natural Resources also agreed to pay $34.8 million in fines and fees that Massey Energy owed to the Mine Safety and Health Administration.”

CBS reports,

“The settlement was bitterly criticized by some of the dead men's relatives, who said they won't be satisfied until charges are filed against those they consider responsible for the catastrophe, the nation's deadliest mine accident in 40 years.

Gary Quarles, whose son Gary Wayne Quarles died in the disaster, said: "I want to hear names, and I want to know what they're going to be charged for. Today would have been a fine day for them to have told us.” The families still want criminal prosecutions.

Yes, the settlement begs for more.  But compared to victims of disasters caused by government entities, at least they’ve left the starting gate.

Abuse and Civil Justice

It’s hard to talk about Penn State’s sexual abuse and cover-up scandal/tragedy without becoming physically ill, but that’s certainly no excuse for sweeping any aspect of this story under the rug.  So we’ll approach the angle that we know best – civil justice.

Today’s Philadelphia Inquirer has a piece about Penn State's potential liability, “broad parameters” of which were laid out by state Attorney General Linda Kelly who “has charged athletic director Tim Curley and Gary Schultz, university vice president for finance and business, with failure to report the abuses and lying to a grand jury.”  And, “on at least one occasion, alarming information was made known to legendary football coach Joe Paterno and university president Graham Spanier.”

The school’s legal liabilty comes in because much of this happened on school premises. Because abuser Jerry Sandusky, "who retired in 1999 but held emeritus status, had wide access to university athletic facilities and other areas of the campus …. 'the legal issues are relatively simple,'" said one attorney.

The university had known that a dangerous condition existed on its premises but did not take steps to correct it.…

"My goodness, they had notice of particularly dangerous conduct as it relates to defenseless 10-year-old children and not only do they not take steps to remedy the condition but they provided him with the means to perpetrate these acts."

And while news coverage of this scandal may eventually fade, stories about horrific abuse by Catholic priests clearly is not ending anytime soon.  Yesterday, a Florida jury awarded $10 million in compensatory damages and $90 million in punitive damages in a case against one such priest.

Unlike many other lawsuits brought against the church, this one was against the priest himself, Rev. Neil Doherty.  The Miami Herald writes:

This is the first case of more than 20 filed against Doherty that has reached a jury — dozens of others have been settled out of court for around $50,000. Even more uncommon was the fact that Doherty, not the archdiocese, was named as the defendant in the case.

Jessica Arbour, one of the lawyers representing [Andres] Susaña, said her firm, in an unusual move, decided to explicitly name Doherty in the lawsuit, filed earlier this year.

“This was a chance for [Susaña] to be empowered and hold Father Doherty personally accountable for what he did,” Arbour said.

The dozens of other cases filed by Arbour’s law firm have sued the Archdiocese of Miami, accusing it of covering up Doherty’s abuse and putting him in a position where he could further abuse boys.…

Jeff Hermann, an attorney also representing Susaña, said the jury’s decision sets a benchmark for future cases.

“Now, we have a measure about what a jury thinks a victim should receive,” Herman said. “It sends a message … we hope the message this sends can protect other children in the future.”…

Susaña said for him, the lawsuit was less about money and more about seeking justice: “There isn’t any amount of money that can make up for what I’ve been through.”

For more about Penn State, see video below.  Sigh.

 

On Being Honest In Medical Care

At least since Watergate, there’s been one truism in American politics: it’s always the cover-up that gets you.  Not so clear in health care, though.  In fact, when doctors and hospitals cover up their negligence, the end result may be as unclear as the outcome of the sexual harassment scandal involving one “he-shall-remain-nameless” Presidential candidate. 

The Philadelphia Inquirer has an article about a terrible instance of medical malpractice at suburban Abington Hospital, which resulted in the death of a newborn.  Writes the paper, “Within a week, John J. Kelly, Abington’s top doctor, invited Destinee's parents into a conference room. He told them everything that happened, what had gone wrong. Others involved in Destinee's care joined him. All expressed their sorrow.”  But Destinee's father, Ricardo Blake, was understandably still angry that the hospital killed his baby and he filed a lawsuit, “citing the meeting.”  And why shouldn’t he, really?  The basic rules for everyone else are, if you do something wrong and willingly confess to it, your admission is allowed in civil court -- especially when the harm is so catastrophic.

But in Pennsylvania as in many states, legislation is pending to allow “a doctor to apologize to a patient, and prohibit this apology from being used in court by the family.”  But even Stewart J. Greenleaf (R., Montgomery-Bucks), who heads the Senate Judiciary Committee, says these bills go too far, proscribing that “explanations of fault - beyond apology - would be protected speech as well.” 

I dare say that “going too far” describes much of what’s happening these days to protect malpracticing physicians.  Last week, Sen. Charles Grassley (R-IA), “demanded that the government reopen a public website with data on malpractice and disciplinary cases involving thousands of the nation’s doctors.”  That's the National Practitioner Data Bank.  We reported earlier on the Obama Administration’s September 1 closing of the public portion of the NPDB.  Said Grassley, “The shutdown ‘flies in the face of (the) mandate to enhance the quality of health care.’ … ‘Department officials are misguided if they think they can make this issue go away.’”

While Sen. Grassley is fighting to open up NPDB, “1 in 5 doctors complain that easier access to medical information over the internet ‘has been detrimental, leading to misinformation and incorrect self-diagnosis.’”  Why?  Writes MedScape, “’Clinicians and their patients need to be aware of misleading information posted by patients or particularly by pharmaceutical companies who often post videos to make it seem like they are coming from a patient when in actuality it is a company advertisement,’ said researcher Saurabh Mukewar, MD, in an ACG press release. ‘These sources are not transparent.’”

Meanwhile, Journal of the American College of Radiology (JACR) is apparently reporting that  

Total US malpractice payouts for all medical specialties related to communication failures shot up from $21.7 million in 1991 to $91 million in 2009, the authors report, based on their analysis of data from the National Practitioner Data Bank.  The proportion of communications-related claims more than doubled during the same period, from 0.93% to 2.31%.  [emphasis added]

The authors wrote that a contributing factor is a dramatic increase in the number of diagnostic tests ordered by physicians over the past decade, citing a 2010 paper in the journal Radiology titled, “Addressing Overutilization in Medical Imaging.” That report, ironically, cited the practice of defensive medicine to avoid malpractice claims as a reason for the rise in number of diagnostic tests.

Oh come on.  Don't these people watch 60 Minutes?   (“[M]ost doctors get paid based on the number of patients that they see, and most hospitals get paid for the patients they admit.… ‘So, the more M.R.I. machines you have, the more people are gonna get M.R.I. tests?’ [Steve Kroft asked.]  ‘Absolutely,’ [Dr. Elliott Fisher, a researcher at the Dartmouth Institute for Health Policy] said.”

We have got to stop blaming the patient.

Pennsylvania “Tort Reform” – Toxic Polluters and Street Criminals Rejoice!

If you live in Pennsylvania, saw the movie “Hot Coffee,” and were wondering how you might be losing your rights without even knowing it, look no further!

Your Governor just signed a law severely limiting the doctrine of "joint and several liability," which had been part of your common law since, well, the beginning of Pennsylvania!  The business groups call it the so-called "Fair Share Act," but let's be clear - this is nothing "fair" about this law for you. 

The largely-eviscerated doctrine of joint and several liability was a fairness rule, however, developed by courts over centuries to protect everyday  people.  It comes into play after more than one wrongdoer is found fully or substantially responsible for causing an injury (not 1% or 10% responsible, as is commonly misstated). If one wrongdoer is insolvent or cannot pay their share, the other fully-responsible wrongdoer(s) must pick up the tab, to make sure the innocent victim is fully compensated. 

For example, suppose two toxic polluters recklessly contaminate drinking water, causing leukemia in neighborhood children. The actions of any one of them alone would be sufficient to cause leukemia.  But because two companies were involved, each one's relative share becomes only one-half.  This fortuitous circumstance allows them to split the total compensation owed. Now in Pennsylvania, if one of those two companies becomes insolvent and cannot pay any compensation, tough for you!  The law used to be that the other company would have to cover the insolvent company's share.  But no more. The polluter is now off the hook even though it was found fully responsible for causing the leukemia.  (If you don’t believe me, check out this article by Richard Wright called The Logic and Fairness of Joint and Several Liability).

And here is something else you should know.  Joint and several liability is often invoked to help protect crime victims.  Let’s say you or someone you love is sexually assaulted and her rapist got into the apartment building because the landlord refused to fix a broken lock.  By limiting joint and several liability, as was just done in Pennsylvania, she is prevented from any real recovery since in most violent crime situations, the criminal has little money or few assets.

So, thank you Pennsylvania lawmakers.  Polluters and street criminals sure appreciate it.

Thinking of Having a Baby in New York State? Think About Going Elsewhere

Of course no one wants to imagine something going wrong during childbirth, but the reality is that some doctors are negligent, some hospitals are unsafe, and the State does little about it.  Read Dr. Lora Ellenson’s story here.  Or see here trial testimony of a mom with a brain-damaged child caused by negligence and try to put yourself in her shoes.

Last night, New York passed a State budget that ensures that unsafe hospitals will no longer fully pay for their own negligence if something should go wrong during childbirth, while punishing families in an almost unthinkable way.  New York State will now be the only state in the nation where, if something does go wrong during a child’s birth and the baby suffers brain-damage, the negligent hospital will be largely off the hook and the child will likely be condemned to a lifetime of suboptimal care, no matter what a jury finds. 

Basically, New York has just set up a bureaucratic monstrosity for these families, whereby they will be forced to go to a State Fund to pay for the child’s care.  The money for this Fund will come from a hospital surcharge based on its obstetric revenue (so essentially, obstetric patients will be charged a tax to subsidize the negligence of the medical providers.  Nice).  And it is grossly underfunded to boot, limited to running at $30 million per year with the ceiling determined after four years.  Soon, there will be too many children being added each year to allow it to be sustainable in the future – assuming it is sustainable in the near term.  If it runs out of money, no new patients will be allowed in – at least until more money comes in.  But those who are already in the system will likely have to turn to Medicaid, with taxpayers subsidizing.

Here are some more highlights: 

- The Fund kicks in after a jury verdict or settlement, in other words, after the family endured the time and expense of proving their case in court (or settled), and the health care provider was found negligent. 

-  The family receives their non-economic damages (no cap) from the negligent provider, but will not receive funds for future medical expenses to which they are entitled.  Instead, they will have to be reimbursed for medical or other expenses by the fund if health insurance doesn’t cover it, or their provider will be reimbursed by the Fund.  This turns the family into perpetual claimants even though a jury has already ruled in their favor, adding additional burdens on families who already face unimaginable challenges caring for a profoundly disabled child.

- Physicians will make treatment decisions; some other expenses will be decided by regulation.  Private physicians will be reimbursed at usual and customary rates; other health care services will be reimbursed at Medicaid rates.  However, there is enough wiggle room in the language so that sooner or later, as the Fund starts to run out of money as it likely will, these children who should be entitled to the best care available are going to be relegated to the cheapest care available at Medicaid rates, which not all doctors will even accept.  Even though the law says there is no requirement for prior approval for care, the Fund administrator has the absolute and unqualified power to enact a regulation requiring prior approval. 

 - The provisions of the bill are retroactive, covering all currently pending cases.

The concept of this Fund was developed by self-dealing hospital members of Governor Cuomo's Medical Redesign Team - an entity that we have pointed out time and time again was dominated by these corporate interests and devoid of patient representation.   The result is a measure that permanently strips the State’s most vulnerable victims – catastrophically-injured newborns - of Constitutional rights afforded every other victim of wrongdoing in this State.  What’s more, because unsafe hospitals will no longer fully pay for their own negligence in these cases, accountability for negligence is weakened and more unsafe care will result.

The only good thing we can say about all this is that State lawmakers rejected a key item that the entire medical industry wanted: a cruel $250,000 cap on non-economic damages, which would have covered all injured patients.  Keeping this provision out of the State budget was a tremendous victory for all New Yorkers who care about the ability to hold powerful interests accountable when they engage in misconduct.  But this brain-damaged baby Fund, while improved from the original version, is terrible, and raises fundamental Constitutional concerns.

This Fund will hurt patients and patient safety, do nothing to help doctors with their insurance problems and places the burden of solving a short-term budget problem, not to mention a patient safety problem, on the backs of sick and injured children who became political bargaining chips to get a budget deal through.  Let’s hope the Constitutional challenge moves forward quickly. 

Rep. Murtha Died from Medical Malpractice

There are numerous reports today that but for medical negligence, Congressman John Murtha, who sadly died yesterday, would still be with us.  As reported in the Pittsburg Post Gazette, “According to a source close to Mr. Murtha -- confirming a report in Politico -- doctors inadvertently cut Mr. Murtha's intestine during the laparoscopic [gallbladder] surgery, causing an infection."  This was also confirmed by his good friend,  Rep. Bob Brady (D-PA). 

Meanwhile, among the continuing coverage of the truly sick prosecution of Texas nurses who have been “indicted and threatened with 10 years in prison” for reporting to state regulators that a doctor was practicing unsafe medicine (we've been covering this since last year), we found an interesting comment from someone in the “tort reform” crowd who, after taking an obligatory swipe at the nurses, said:

It’s possible that the nurses made false accusations maliciously, but that seems something that could be handled through civil suits and then only after the Texas Medical Board adjudicated the complaints. Such overreaching by doctors could backfire, as it would give credence to the proposition that medical malpractice lawsuits are a necessary check to incompetent doctors.

I guess when you’re right, you’re right.

UPDATE: The nurse has been acquitted! 

We Read the News Today, Oh Boy

It’s that old “lining their pockets” thing again.  In Ohio, Christ Hospital has “settled a federal whistleblower lawsuit accusing its acclaimed cardiac-care center of running an illegal kickback scheme.”  Christ Hospital insists it did nothing wrong, but the government says the hospital “and the Ohio Heart Health Center cardiology practice, which Christ Hospital has since bought, ‘devised a scheme that provided cardiologists improper financial incentives in exchange for generating revenue for the hospital.'’’  Dr. Harry Fry, a cardiologist, blew the whistle.

In the Philadelphia case brought by breast cancer victim Connie Barton against Wyeth for manufacturing their cancer-causing hormone replacement drug Prempro, both sides are appealing a decision that 1. slashed her punitive damages award  from $78.7 million to $5.6, and; 2. became the first Philadelphia case “to uphold a jury finding that drugmaker Wyeth failed to warn a plaintiff's prescribing physician of the dangers of breast cancer from using Wyeth's hormonal drugs.”  There are more than 1,500 similar cases pending.  (For more about that issue, see CJ&D’s report, The Bitterest Pill.)

And finally, some good news/bad news.  Good news first. The defense appropriations bill provision ensuring that rape victims have access to the courts hopefully won’t be a one-time thing, thanks to President Obama's 2011 defense budget proposal, which includes the same provision for 2011.  Meanwhile, the President is making nicey nice with the destructive U.S. Chamber of Commerce, which opposed this provision, saying they will just have to “agreed to disagree on some issues.”   Oh boy.

Bank of America, Dinosaurs, and Mandatory Binding Arbitration

It’s been quite a good year for consumers complaining about hidden clauses in bank “agreements” that force all credit card and loan disputes into the extremely biased process known as “mandatory binding arbitration.”   First, in March the U.S. Supreme Court made it easier for consumers to challenge these clauses in court.  Then, in an incredible development precipitated by a lawsuit, both the National Arbitration Forum and American Arbitration Association said they would not take part in these credit card collection disputes - for now, at least.

Now, the results of a four-year-old class action lawsuit against several huge banks are starting to bear major fruit, with the latest twist being that Bank of America Corp. earlier this week agreed to drop these clauses in consumer contracts – for a few years, at least. 

The suit said the banks “conspired to require their card customers to resolve disputes in arbitration, including debt collections.”

While Bank of America’s agreement comes some four months after the bank voluntarily stopped enforcing arbitration agreements with existing customers, BoA’s recent settlement goes even further “by removing arbitration clauses from consumer and small business card holder agreements for at least three and a half years.”

Meanwhile, JPMorgan Chase & Co. brokered a similar deal last month.  The remaining stubborn banking bigwigs (like Capital One and Citibank) continue their battle to keep the notoriously one-sided process in place.

Guess some banking “dinosaurs” never learn. 

Cigna, ERISA, Legal Immunity for HMOs, and “the Finger”

Did you know you can bring a lawsuit against your HMO if one its employees gives you “the finger,” but not if it wrongly denies your child a life saving transplant?

Such is the moral of a terrible story involving a woman named Hilda Sarkisyan whose17-year-old daughter died after the family’s health insurer (Cigna) refused to pay for a desperately-needed liver transplant, calling it “experimental.”

Strange as that may sound, under the federal ERISA law, if you are insured through your employer, your HMO can’t be held liable for injuries or death when it denies treatment.   The Sarkisyan family learned about this outrageous loophole when a Los Angeles judge citing “a 1987 U.S. Supreme Court ruling that shields employer-paid healthcare plans from damages over their coverage decisions” tossed their wrongful death suit against Cigna.

As Wendall Potter, a former Cigna spokesman who resigned in the wake of the Sarkisyan case, observed,  “"HMOs and insurers are largely free to deny access to care without fear of reprisal or financial consequences."

Meanwhile, desperate for some semblance of justice, Sarkisyan and a group of supporters paid a visit to the Cigna’s Philadelphia headquarters (see video below) demanding an apology from the company’s CEO.  That’s where the “middle finger” comes in.

A group of Cigna employees looking down at Sarkisyan from a nearby balcony began “heckling” her—and one apparently thought it would be a terrific idea to “flip off” the grieving mother.

“They showed me their true colors,” said Sarkisyan.  “Shame on them.”

In a testament to how bizarre the ERISA/HMO immunity provision really is, the “bird flipping” moment has now become “the central element of a lawsuit Sarkisyan and her husband Grigor, are pressing against the health insurer.”  A U.S. District judge gave the family the green light to pursue this claim.

“They kill a beautiful 17-year-old girl, and I get to go after them for a finger?  That’s sick,” said Hilda Sarkisyan,” adding, “If you don’t sue, you can’t make changes…It’s not about the money.  It’s about the principle.  They are just going to keep denying people care if we don’t stop them.”

Check out what Consumer Watchdog is trying to do to fix this situation.

As the late Senator Ted Kennedy (D-Mass.), who led an unsuccessful attempt to close the ERISA/HMO loophole back in 2001 said at the time, “"Patients should have the right to hold their HMO accountable in court when its negligence causes the injury or death of a patient….No other industry in America enjoys immunity from accountability for its actions, and the insurance industry does not deserve it either."

So next time you hear people complaining about lawsuits for medical malpractice, make sure to remind them that HMOs are completely immune from liability.

Specter Pushing Laws to Reverse U.S. Supreme Court’s Rulings in Stoneridge and Iqbal

We wanted to bring your attention to a couple of news items detailing some pretty exciting legislation in the works from U.S. Senator, Arlen Specter (D-PA).  The bills address two pretty bad U.S. Supreme Court decisions, both of which we’ve blogged about, and both of which, if allowed to stand, will continue to have devastating consequences on consumers everywhere—namely, the Stoneridge, and Iqbal decisions.

Stoneridge, you may recall, denied shareholders the right to hold so-called “secondary actors” (such as investment bankers, white-shoe corporate lawyers or high-priced accountants) responsible when they participate in a scheme with a public company to defraud shareholders.

Specter’s bill “would allow civil suits against anyone who ‘knowingly or recklessly provides substantial assistance’ to someone engaged in fraud.” 

Meanwhile, the interesting development on the Iqbal front (the case which created an across-the-board, unprecedented increase of what ANYONE bringing ANY KIND of lawsuit must initially show in order to avoid having his/her case tossed) is that the bill Specter introduced to reverse it last July, is gathering momentum from legislators (the House may introduce its version of the bill this week), academics, and other prominent advocates.

Here are some notable recent quotes:

Lisa Bornstein, senior counsel at the Leadership Conference on Civil Rights: “Under Iqbal, ‘the person filing the suit has to get inside the head of the employer’ before being given access to any documents—a Catch-22 that will thwart valid suits…’It's really a padlock on the courthouse door.’"

Arthur Miller, New York University School of Law professor and recognized expert on civil procedure: "I have spent my whole life with the federal rules, and this is one of the biggest deals I have ever seen….I see serious problems with democratic values here, with access to the courts, with resolution of disputes with a jury of peers."

Elizabeth Schneider, Brooklyn Law School professor “who has written extensively on federal civil procedure.”:  “Iqbal is forcing trial judges to go ‘line by line’ through pleadings, using subjective factors to decide what parts are factual and which statements are conclusory. ‘If that's not an open door to judicial bias, I don't know what is.’" 

Anyway, you get the idea—lots of cool stuff is happening, thanks in large part to the efforts of Senator Specter.  Here’s hoping his efforts pay off.