ThePopTort

The Truth About "Health Courts" - Say Goodbye to Juries

In the context of medical malpractice and the health care debate, a new proposal may be surfacing called “health courts” that would force all medical malpractice cases out of the court system.  These measures have a strong public relations spin attached to them – promises of a faster, more reliable system of resolving medical malpractice claims.  The truth?

“Health courts” are a terrible, anti-patient and highly controversial concept that has gotten no traction whatsoever at the state level. Consumer groups  and victims are strongly opposed to them, even though this point is often drowned-out of slick presentations by health court proponents.

Health courts force all medical malpractice cases into an administrative system based on the disastrous workers comp model  (a new bureaucracy would need to be created), but they are worse since patients would still have to prove a form of negligence and the decision-makers would come from medical community with clear conflicts of interest. The right to jury trial is eliminated, which the public does not support. There are few accountability mechanisms, few procedural safeguards, and no meaningful appeals process. There may be schedule of benefits (so much for a foot, a lung), and a severe cap on non-economic damages (or they may be eliminated altogether). These hardships, coupled with the burden of having to prove fault or “causation,” render the injured patient virtually powerless and at the mercy of the insurance and medical industries.

They are also unconstitutional. At least 11 states have found other, less radical medical liability tort restrictions violate their state constitution’s right to jury, including Illinois last month. 

FAQ on Burn Pits in Iraq and Afghanistan – The New Agent Orange

Please explain the irony of surviving the terrifying ordeal of serving in Iraq and Afghanistan, only to become severely diseased and perhaps die as a result of waste disposal practices on U.S. bases.   

Sure enough, the Pentagon confirms that it is burning hazardous and medical waste in at least 84 burn pits in Iraq and Afghanistan.  They deny the pits create serious long-term health problems, but hundreds of soldiers and plenty of health experts disagree.

What’s being burned?  Everything imaginable.  If you have the stomach for it, here’s a list in no particular order, culled from various news sources: trucks, tires, lithium batteries, amputated body parts from Iraqi patients, hydraulic fluids, munitions boxes, petroleum-oil-lubricant (POL) products, medical waste, biohazard materials including human corpses, latrine waste, medical supplies used during small pox inoculations, paints, solvents, asbestos insulation, items containing pesticides, polyvinyl chloride pipes, animal carcasses, dangerous chemicals, hundreds of thousands of plastic water bottles, bloody gauze, medics' biohazard bags and surgical gloves.   And “jet fuel was sometimes used as an accelerant.”

What kind of illnesses seem to be resulting? Immediately after exposure troops apparently were “coughing up blood, vomiting and complaining of nausea or burning lungs.”  Plus, various news sources report the following illnesses (aside from deaths, of course): Parkinson's disease, leukemia, lymphoma, congestive heart problems, neurological conditions, bronchitis, skin rashes, asthma, joint pain, muscle spasms, rheumatoid arthritis, chronic pain syndrome, multiple sclerosis, sleep disorders, frequent headaches, chest tightness, constant dry cough, increased allergic sensitivities, hypertension and/or “reactive airway dysfunction syndrome.”

How many vets/how many lawsuits?  500 vets are complaining of symptoms. And, “[m]ore than 280 veterans and contract workers have sued defense contractor KBR Inc.”

What’s the Pentagon’s position?  Denial. From the LA Times: “A military environmental agency that tested air samples from [recently shut] Balad in 2007 found dioxins, metals, volatile organic compounds and other toxic substances in the smoke. But in its report -- titled ‘Just the Facts’ -- the U.S. Army Center for Health Promotion and Preventive Medicine said the substances ‘were within acceptable standards” and that “no chemical concerns or significant health risks have been identified,” although “smoke from any source, including burning trash, can still cause temporary irritation effects.”

What do heath experts and others say?  The LA Times reports,

”Dr. Anthony Szema, chief of the allergy section at the Veterans Affairs Medical Center in Northport, N.Y., said exposure to smoke and fumes from burning refuse can increase the risk of death from lung cancer or cardiovascular disease. Szema told a Senate Democratic Policy Committee hearing in November that burning plastic bottles produces dioxin and hydrochloric acid, and burning polystyrene foam cups produces dioxin, benzene and other carcinogens. ...

Chief Warrant Officer 5 John A. Wester, 59, a Special Forces soldier, blames his Hodgkin's disease on exposure to a burn pit at the U.S. base in Bagram, Afghanistan.  "The military wants to deny anything's wrong, just like with Agent Orange," Wester said. "But there’s no doubt in my military mind where I got my cancer."

Some things never change.

Will the Supreme Court’s Citizens United Decision Declaw our State AG’s?

Right now, there probably no way to adequately describe the horror that the U.S. Supreme Court just rained down on this country with its decision yesterday in Citizens United v. FEC.  As the New York Times put it today,  “With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century.  Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.” 

Yes, Congress must fix this somehow, but it’s also good to know that there are state Attorneys General out there who are trying to stop fundraising corruption and see this as part of their job.  Like NY’s AG Andrew Cuomo, who filed a lawsuit Wednesday against four New York “fundraising” companies to “shut them down for lying manipulating, and deceiving to get charitable donations.”

The suit is the result of a six-month sting operation in which law enforcement officials obtained jobs with the companies, and found their telemarketers:

   
  * Used aliases and illegally failed to disclose they were paid fund-raisers.

  * Changed the names of charities to sound similar to well-known charities or causes.

  * Lied about the programs client charities actually provided.

  * Filed false annual documents with the state attorney general's office containing fake scripts that were made to seem like the ones used by their telemarketers.

Consumer friendly state AG’s have already had a big target on their back for protecting the public from all sorts of corporate misbehavior.  The terrifying impact of Citizens United on state AG races can only be imagined.  Brace yourselves.

Child Safety, Regulatory Agencies, and the Ongoing Importance of Lawsuits

We’ve noticed a lot of stories in the news lately about federal regulatory agencies like the CPSC and the FDA cracking down on companies that sell and manufacture harmful products to kids.  Massive recalls have taken place affecting strollers that cause fingertip "amputations," and drop side cribs that pose suffocation hazards, not to mention heightened federal scrutiny of bisephenol-A (BPA), an industrial chemical often found in baby bottles.

Of course, this all comes as great news, particularly in light of the Bush Administrations comparatively lax (and grotesquely corporate-friendly) regulatory standards.  Still, as encouraging as this might be, it’s worth emphasizing that regulations after the fact don't do much to help already injured children, some of whom have been mutilated—nor does it help the families of those killed due to corporate negligence.  Lawsuits provide often catastrophically injured victims with the means to pay for excessive medical bills and other injury-related expenses.  Even the U.S. Supreme Court has recognized this “distinct compensatory function that may motivate injured persons to come forward with information.”  Lawsuits can ensure such regulations are followed and increase awareness, which in turn, informs busy parents about dangers that are hard to see. 

So bravo that federal agencies have been taking more aggressive steps to help protect America’s kids.  But let’s not forget that the civil justice system is a crucial complement to our regulatory structure. 

Another Shout Out from our Neo-Con Friends as Auto Crash Victims and Teamsters Rally

It seems our friends over at Dick Cheney’s favorite think tank, the Manhattan Institute (MI), saw fit to take a break from honoring Martin Luther King yesterday to give props to our recent coverage of Christina Catalano’s brave face-off  with Chrysler/Fiat CEO Sergio Marchionne on behalf of more than 1000 families whose legal rights were wiped out by the Chrysler/GM bankruptcies – a result that clearly didn’t have to be.

So in honor of this special coverage, we have more!  Take a look (below) at a video of Christina’s impassioned speech about these victims – including her own mother.  She points out the fact that she and most of her family are union members from Michigan who want these companies to succeed but not at the unnecessary expense of victims or consumer safety.  The speech took place at a Teamsters rally outside the Detroit auto show, joined by  U.S. Rep. John Conyers, Jr. (D-MI), Detroit City Councilwoman JoAnn Watson, and Detroit Rainbow/PUSH President Rev. D. Alexander Bullock.  The rally was to bring attention to this: GM and Chysler are replacing experienced union haulers who know how to deliver the company’s vehicles safely and securely, with less experienced lower-wage contract workers, which, according to a new report by Wayne State professor and national truck safety expert Michael Belzer “Fiat/Chrysler’s moves to cut-rate car haul companies will likely lead to more accidents on our nations’ roads.”

Families like the Catalanos want accountability and they want to make sure preventable car tragedies happen to no one else.  That’s the Teamster’s message, as well.  Cutting safety corners is not the way to sell cars.  We hope someone over there at GM and Chrysler are listening!

9/11 Lawsuits May Shine A Light on What Really Happened That Day

This week, there was an fascinating AP story illustrating one of the most important functions of the civil 
lawsuits—disclosing significant information about important public matters to the wider public.  This instance concerns two of the brave families of 9/11 victims who perished on the hijacked planes, who decided to forgo compensation from the September 11th Victim Compensation Fund in favor of suing airline security companies and others. 

According to the story, the families’ attorney Mary Shiavo, the well-known former DOT official and airline safety advocate, said the settlements “are likely to include language requiring evidence to be displayed at the National 9/11 Memorial & Museum,” and that  “public display of evidence collected for trial by lawyers in the case was important to the families, [calling] the museum a fitting place for it," adding, "the materials were likely to be put in the museum's reading room.”  This would be a major, publicly important achievement for these families.
 
Mike Low, one of these two family members who sued on behalf of his daughter, Sara, who was aboard American Airlines Flight 11, told CBS News in September, "If it was about money, I would have been gone a long time ago.  It's about ferreting out all the untold stories of the days leading up to 9/11 and 9/11.  It's accountability, it's exposure, it's shining a light on some of those areas that have been successfully hidden from the public….When the trial is complete, I will have done all that I can do….And when I see that old man in the mirror in the morning, I'll be comfortable."

Nevada Hospital ER Shows “Pattern” of Refusing Care

We’ve talked any number of times about the terrible hazards many patients have faced when seeking care from a hospital’s emergency room.  And that makes sense, given that the ER is the location where most medical malpractice occurs.  It’s bad enough that in many states, like Nevada, patients killed or injured by negligence in ER’s have limited rights.   But some have actually targeted ER patients for additional restrictions, laws that would affect no other hospital patient even as the ever-growing litany of ER nightmares continue.

Speaking of Nevada, consider the case of Roshunda Abney (see video below) who was refused treatment last November at the University Medical Center (UMC) in Las Vegas, NV.  Abney, who was unaware of the fact that she was pregnant and in labor, showed up at the hospital’s ER in excruciating pain.  Nevertheless, Abney was made to wait more than five hours in UMC’s ER before eventually seeking help from nearby Valley Hospital Medical Center, where her baby was born—and shortly thereafter, died.  Abney currently has a lawsuit pending against UMC—but the story doesn’t end there.

According to state records obtained by the Las Vegas Sun, Abney’s case was “just the latest in a handful of [similar] cases” at UMC over the past five years.  Patients who received similar treatment (or lack thereof) included a woman bleeding profusely with seven fractures in her face, a woman in labor who was told the hospital had no beds for her as she watched another pregnant woman stroll right in (“Some people have priorities,” the hospital explained, according to the state report), and a man with a “fever, elevated white blood cell count, and possible abscess” on his spine.

You get the idea.  Hospital ERs continue to be incredibly dangerous places—and any suggestion that ER personnel should somehow be immunized from liability for such blatant mishaps makes about as much sense as, well…telling a bleeding woman with seven facial fractures to wait her turn “like everyone else.”

Docs Blinded by Dollar Signs

We’ve said many times – and the evidence seems to keep on comin’ – that if there’s a problem with doctors’ ordering too many tests, the reasons have to do with the fees they get, not “lawsuits.”

Like this story out of (guess where?) Texas.  Texas Health Arlington Memorial Hospital just coughed up $1 million to settle a suit with the U.S. Attorneys office who said they had a deal with a doctors’ group to run a blood gas lab and then submitted claims to Medicare for “interpreting” blood tests that didn’t need to be interpreted at all. 

Meanwhile, in parts further north, a self-styled Minnesota-based “country doctor” named Stanley Gallagher has agreed, along with Wheaton County Hospital to pay a $900k settlement for unnecessarily admitting patients to the hospital and keeping them there too long in order to inflate their bills to Medicare.

In one glaring example, a “a 91-year-old man with a history of back pain was admitted [to the hospital] because he had pain radiating down the back of his leg. He spent six days in acute care and was treated with oral pain medication and physical therapy.”  To the astonishment of no one, government “medical experts said that treatments did not require acute level in-patient care.” 

Meanwhile, “Gallagher was disciplined by the Minnesota Board of Medical Practice in 2004 for delivering substandard care, although the sanctions were lifted in 2006.”  Another theme of ours, with Minnesota ranking at the very last in the country for serious disciplinary actions against doctors.

Anyway, you get this idea.  There are too many bad docs out there who view their license to practice medicine as a license to gouge.  Here’s hoping Congress takes note as it prepares to “reconcile” the House and Senate health care bills.

Katrina Hospitals Victims “Literally dead in the water”

Since Hurricane Katrina in 2005, much has been written about deaths that could have been prevented but for the negligence of various institutions.  We’ve covered the responsibility of the Army Corps of Engineers,  and its “monumental negligence” for not maintaining the levees that collapsed.  But now, we are finding out that many excruciating deaths in hospital and nursing homes could have been prevented too.

A joint project of the New York Times and ProPublica has reported on a massive corporate failure at New Orleans hospitals to establish emergency backup power systems, causing patients to slowly die as they “languished for days awaiting transport.”

In fact, three years before Katrina, one of Pendleton Memorial Methodist Hospital’s senior executives wrote in a report that the hospital lacked the amount of generators needed “to accommodate an emergency flood with 15 feet of water,” and that one of hospital’s two main generators would be “nonfunctional in about two feet of flood water.”  The report, written in response to similar flooding that had already occurred in Texas, recommended that a $7.5 million fix be undertaken to avert such a disaster.  That warning was never heeded.

One of the patients who died at Pendelton was 73-year-old Althea LaCoste.  In her family’s lawsuit, they say she died horribly and, in turns out, unnecessarily, in “sweltering heat after nurses spent hours pumping air into her lungs by hand in the pitch dark...". 

Meanwhile, according to Robert Wise, vice-president of the Joint Commission, the accreditation body for most American hospitals, “There are many [hospitals] that still know they have to move their generator,” and that without power, will be “literally dead in the water.”

It seems there’s simply no end to the institutional negligence surrounding Hurricane Katrina.

New Civil Justice Law in China Starts the New Year Right

It’s time for our first bit of irony for The New Decade.  While the business and medical lobbies have turned the U.S. civil justice system into an embattled and vulnerable institution, trying to strip victims here of their legal rights, China – one of the world’s worst human rights abusers – let alone having a pretty bad record on civil justice – is now greatly broadening access to civil justice for its citizens.  A new law, which passed muster with the National People’s Congress (NPC) Standing Committee last week, will take effect in July, and cover “a range of liabilities, including traffic and medical accidents, work-related injuries, pollution, harm caused by pets and mental distress.”   

"That's a breakthrough. It's the first time Chinese laws have such clear stipulations on mental damage compensation," said Wang Shengming, deputy director of the legislative affairs commission of the NPC Standing Committee.

Victims of major traffic accidents and mine disasters can also get the same payouts, regardless of whether they are from urban or rural areas.

People can now demand more than their actual losses if companies continue to make products they know are defective, another first for Chinese legislation, legal experts said.

Yang Lixin, a professor at Renmin University of China in Beijing who helped draft the law, said the rule could be applied for victims of the Sanlu baby formula scandal.

According to the Ministry of Health, at least six babies were killed and more than 300,000 others made ill by baby food tainted with melamine, most of which was made by the Sanlu group.

Take note U.S. Chamber of Commerce and all of your corporate friends, even the Chinese consider the civil justice system a source of national pride that ultimately makes it possible for the the weak and defenseless to sometimes get justice.  Perhaps they were shamed into doing this.  You should be shamed too.