ThePopTort

Doctors Who Sue

Doctors, you may be interested to know, are running to court like crazy these days, and who could blame them?

For example, last week the American College of Emergency Physicians (i.e., ER docs), supported by the Washington State Hospital Association, the Washington State Medical Association and the Washington Chapter of the Academy of Emergency Physicians, filed a lawsuit in Washington State to challenge that state’s new Medicaid rules, which limit Medicaid patients – i.e., the poor - to three “non-emergency” visits to the ER each year.  And that’s not all these rules do.  In order to make double sure these struggling families don’t frequent the ER too much, they’ve created a special definition - just for them - of what’s an emergency.  Here is what’s no-longer considered an emergency if you’re a Medicaid patient in Washington State: difficulty breathing, miscarriage, abdominal pains, and chest pains.  In other words, if you think you’re having a heart attack, get an appointment with your primary care doctor.  (Talk about “death panels.”)  In fact, over 700 diagnoses that used to be emergencies are now considered “non-emergent.”  

Then yesterday, the U.S. Supreme heard a case brought by doctors, health care providers and patients, challenging the state of California’s decision to cut reimbursement rates to doctors who treat Medicaid patients, and doing so without getting the federal government’s approval like they’re supposed to.  NPR’s Nina Totenberg described the case this way:

In 2008 and 2009, California cut [Medicaid reimbursement] fees by up to 10 percent, and the cuts went into effect without being submitted to the federal Medicaid agency for approval as required by law. Health care providers went to court, contending that the cuts were solely for budgetary purposes and did not meet the federal requirements for balancing money issues and access to health care. On the steps of the Supreme Court on Monday, California Medical Association doctors said they simply can't afford to take care of substantial numbers of Medicaid patients when fees are so low.

The problem is that they may not have a right to bring a lawsuit at all.  That's even according to Justice Ruth Bader Ginsburg.  Imagine not being able to bring a lawsuit in a situation like this, when doctors have clearly been wronged, and when the poor are going to suffer for it, right? 

If only the ER docs saw the same value helping poor folks get proper treatment like this as helping some of those same patients who are negligently injured.  For example, last November, we wrote about Florida legislation that would give ER doctors who treat Medicaid patients "sovereign immunity," and cap their liability for committing medical negligence against the poor at $100,000. 

For three decades, doctors and medical societies have pursued a relentless campaign to severely limit compensation for injured patients.  Yet when a managed care company or the government treats doctors unfairly, they head straight to court – in fact, to the U.S. Supreme Court.  This should be their right.  It should be patients’ rights, too.

ThePopTort’s Combined Halloween/Election Special – We Can’t Say Much But …

Or rather, we can’t say much because we actually respect the Internal Revenue Service that allows us to be a tax-exempt organization!  We don’t “electioneer” unlike some groups, who shall remain nameless (but if you really want to know). 

Anyway, there are a couple things we can comment on.  First are voter initiatives.  We’re allowed to say to all Washington State voters: There’s a terrible initiative on the ballot – I-1082 – that was written and sponsored by the insurance industry.  It would allow private insurers into the remarkably efficient Washington State workers compensation non-profit public system, and then ruin it with greater costs for employers, smaller benefits for injured workers, and increased burdens on the state.  Check out Americans for Insurance Reform's report on this. Major editorial boards in the state say, "VOTE NO."  I think you know what to do!

Second, extreme-right corporate lawyer David B. Rivkin, Jr. and a really right-wing guy named Andrew M. Grossman have penned a truly reprehensible attack on former Supreme Court Justice Sandra Day O'Connor in the Wall Street Journal. They attack her for her involvement in efforts to remove the grotesque amounts of money now flooding into judicial elections – often from out-of-state corporate front groups - and supporting a Nevada voter initiative that would replace such a system with merit selection of judges.  

This kind of nasty piling on, driven by callous corporate interests, is gonna get a whole lot worse if people don’t come out to vote. And that’s a whole lot scarier than Halloween this year!  We’ll just leave it at that.

Workers' Comp in Washington State - I-1082 Will Raise Costs and Reduce Benefits

If anyone had any doubt that smart government can really work - incredibly well, in fact - one need only look so far as Washington State and its phenomenally efficient workers compensations system.  Believe it or not, it is one of four states that still has a state-run, non-profit workers' comp system (the others being Ohio, North Dakota and Wyoming.) The insurance industry, of course, wants in. They’ve put a terrible initiative on the ballot there, I-1082, that would scrap the remarkable Washington State system - and would screw both employers and workers.

A new study from Americans for Insurance Reform, BIGGEST BANG FOR THE BUCK: Washington’s State-Run Workers Compensation System, shows just how much better Washington State’s non-profit system is than just about anywhere else in the country. (Here is the full report.)

The study was written under the direction of actuary J. Robert Hunter, who is Director of Insurance for the Consumer Federation of America (CFA), former Commissioner of Insurance for the State of Texas, and former Federal Insurance Administrator under Presidents Carter and Ford.  It was co-authored by Joanne Doroshow, Executive Director of the Center for Justice & Democracy.

In describing the study’s findings, Hunter said, “Our study shows that Washington State’s non-profit state run system is an incredibly efficient benefit delivery system for employees for the lowest possible cost to employers.  I-1082 would do real damage to this great system.  For example, if private insurers were allowed in, companies would cherry-pick only the safest jobs to insure, providing them with the largest profit.  Meanwhile, the state would have to cover the high-risk occupations, destroying the required risk-spread to keep prices lower, and burdening state taxpayers.”

Among the findings by BIGGEST BANG FOR THE BUCK are:

·      Over the 5-year period ending in 2008, the cost to private insurers to run their workers’ compensation systems was more than 90 percent higher than Washington State’s costs to run its state-system.

·      From 2004 to 2008, Washington workers received $1.29 in benefits for every dollar paid in premiums. By contrast, the private insurer payout was 62 cents for every dollar in premiums paid.

·      Total administrative and other expenses – salaries, commissions, marketing and advertising costs – averaged 36.5 percent of earned premiums for private insurers. For Washington State, expenses totaled only 19.3 percent.

Said Doroshow, “Washington State’s non-profit state workers’ compensation system is amazingly cost-effective and economical.  Voters should be extremely wary of the insurance industry’s misleading campaign about I-1082.  This initiative would raise costs, lower benefits and create new burdens on Washington State.  It is utterly indefensible.”

Huff Post Repost: U.S. Chamber of Commerce Sells Out Small Businesses and Local Communities

Last week, a student walked into the offices of the South Carolina Small Business Chamber of Commerce, asking to see the organization's public 990 tax forms. Odd, thought Frank Knapp Jr., the organizations' president and CEO. There was nothing legally wrong with this request, of course. But this was the first time in 10 years that anyone had asked.

After a few polite questions, the student finally spilled the beans. He'd been sent from The McNair law firm, one of the most politically connected corporate firms in the state, and recently honored by Chambers USA, America's Leading Lawyers for Business. As Mr. Knapp wrote on his blog, "[the student] understood that someone from out-of-state had asked McNair to obtain information on us." Why would a Chamber-friendly law firm covertly send a student to collect information on a local chamber of commerce?

Keep reading.

Hyundai and Discovery Abuse - How Far Some Companies Go to Hide Truth

Today, let’s discuss how corporations abuse the legal system.  Yes, that’s right, forget all this talk about so-called “lawsuit abuse”.  Here’s the real problem – discovery abuse by corporations who don’t want to cough up unflattering info about their mess-ups.

It’s no secret that many car models have problems with seatbacks collapsing behind them causing terrible injuries or death.  (Take a look at the video in one of our posts about GM and Chrysler cars.)   But apparently, Hyundai wanted to keep theirs quiet.  So when a fellow named Jesse Magana of Vancouver, WA was paralyzed in a 1997 crash involving a rented Hyundai due to the “backward collapse” of the car’s front seat, the company abused the discovery process by telling him that it knew of no other seat collapse problems—that is, until 2005 “when under court order it finally began turning over documentation of nearly 50 seat-back complaints.”

Long story short, after a lot of legal maneuvering, the Washington State Supreme Court found for Magana due to Hyundai’s “willful and deliberate failure” to turn over the damaging documents.

“Trial courts need not tolerate deliberate and willful discovery abuse,” said the majority opinion.  “This result appropriately compensates the other party, punishes Hyundai, and hopefully educates and deters others so inclined.”

Seattle Times Says “Certificates of Merit” in Medical Malpractice Cases Are Wrong

When the editorial board from a state’s largest newspaper (not to mention one of the largest in the nation), agrees that a “tort reform” idea in the House Energy and Commerce health care bill, and touted by the Obama Administration, is not just unconstitutional but also a bad idea—we think that’s worth mentioning!

That’s what the Seattle Times said about the state’s “Certificate of Merit” law, just tossed by the state’s Supreme Court after finding it unconstitutional.  These kinds of laws are sometimes written to keep legitimate lawsuits from getting into court.  Like Washington’s.  Here’s some of what the Seattle Times wrote:

The justices were faced with a stark example in Kimme Putman, a Wenatchee woman who filed a lawsuit in 2007 against Wenatchee Valley Medical Center for failing to diagnose her ovarian cancer for two years. Putman argued the delay kept her from getting early treatment and diminished her chances of survival.

A lower court dismissed Putman's suit because she didn't file the certificate. That was the wrong decision. The point of the court is to determine if a case has merit, a task that ought not rely on a certificate most doctors and nurses would be reluctant to give.

The right to have access to the courts is clearly stated in Article 1 of the Washington state Constitution.

This wasn't a close call for the Supreme Court and one does wonder why the Legislature enacted the law in 2006. It was one of several changes to the medical-malpractice system, spurred by the failure a year before of two competing voter initiatives put forth by doctors and trial lawyers.

Lawmakers wanted to reduce the number of frivolous lawsuits; instead, they interfered in the judicial process.

The editors went on to point out that other states, “including Arkansas, Mississippi, and Ohio” have also declared such laws unconstitutional.—i.e., real legislative cases from some of the most fiercely anti-civil justice states in the nation—all concluding that requiring injured patients to obtain “Certificates of Merit” before filing liability claims violated their rights to a civil jury trial.

Are you listening Congress and the Obama Administration?  Sure hope so!

Washington State Supreme Court Tosses Unfair Medical Malpractice Law

Great civil justice news out of Washington state!

One of those potentially very problematic ideas that most recently has been discussed in the context of President Obama’s state-level medical malpractice pilot projects, was declared unconstitutional by the Washington State Supreme Court yesterday.

It’s called “Certificate of Merit” and requires medical malpractice victims to obtain one from an “expert” before being allowed to file a liability claim.  As consumer groups pointed out when this idea was discussed by the House Energy & Commerce Committee, some state laws are OK but others are onerous and block legitimate cases from getting into court.  Now, a state Supreme Court has found it unconstitutional.

The high court ruled that the law violates the separation of state powers, saying that allowing the Legislature to set rules about filing a lawsuit "conflicts with the judiciary's inherent power to set court procedures."

Seven of the justices also said that the law was unconstitutional because it unduly burdened the right of access to courts.

"Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed," wrote the majority, led by Justice Susan Owens. "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts."

Let’s hope that Congress and the Administration take note.

Chrysler/GM Auto Defect Victims Head to DC—Demand Justice, in Spite of Bankruptcies

As we mentioned yesterday, families and severely injured victims of defective GM and Chrysler vehicles are in Washington DC this week seeking immediate help from lawmakers to remedy those companies’ excessively cruel bankruptcy plans.

Under both schemes, warranties issued by the “old,” pre-bankruptcy versions of the companies will be honored and money set aside to cover replacement of the defective car parts—however, if the part causes an accident or leads to a catastrophic injury or death, the companies will be off the hook—and those injured will be effectively abandoned.

Well, we’re happy to report that the media and Congress are beginning to take notice of this terrible injustice—and we wanted to share some of the latest developments… 

•    Check out Senator Claire McCaskill (D-MO) yesterday grilling GM CEO Fritz Henderson over  his company’s intention to seek “immunity for existing claims and potential claims for any cars that have been sold prior to the closing of [his] bankruptcy.”  (FF to 176:32 on this link.)
•    Also take a look at the coverage from Bloomberg, KHOU in Houston, Fox News’s DC affiliate, The Hill,  ABC News, and CNN (embedded below).

Weighing Legislation to Overturn Medical Device Immunity

Great hearing today in front of the House Energy and Commerce Committee’s Subcommittee on Health on the need to pass Medical Device Safety Act.

There was a great deal of convincing testimony including Gregory Curfman, M.D., Editor of the New England Journal of Medicine who said, (for his full testimony click here)

Since the Supreme Court ruling in Riegel, thousands of lawsuits against medical-device manufacturers have been tossed out of court by judges following the Court’s lead in deeming such lawsuits to be preempted. We believe that preemption not only strips patients of their rights but also results in medical devices that are less safe for the American people.

There was also compelling testimony from Bridget Robb, the victim of a faulty Medtronic Medical defibrillator lead.  Her story is as follows (for her full testimony click here)

My name is Bridget Robb, and I am a thirty-five year old mother and resident of Gwynedd, Pennsylvania. On December 31, 2007, I suffered greatly and thought I was going to die because of a defective heart device implanted in my body. I am thankful to be here today and am pleased that Chairman Pallone has reintroduced the Medical Device Safety Act, which would restore the rights of patients like me to hold device manufacturers accountable when their products cause injury and sometimes, even death.

Robb had a Medtronic cardiac defibrillator implanted in her chest, which failed, sending shocks to her heart which (31 shocks in total), she said, “felt as if a cannon was being repeatedly shot at my chest at close range.”  Her terrified six-year old daughter told their pet cat that “Mommy’s dying” while Robb called 911.  “Each time I was shocked, I saw my life flash before my eyes. It was excruciating pain. At one point, I began to pass out and thought that I would never see Emma again. Ever since that day, I have been unable to sleep in my own bed due to the trauma I experienced.”  She continued,

I would like to have the opportunity to hold Medtronic accountable for the injuries that I suffered that day and the physical and emotional after-effects that I continue to experience on a daily basis. I find it discouraging and demoralizing that I have no recourse for my injuries, and that a company that manufactured a defective product that has harmed me and thousands of other individuals has no accountability. 
…
It is extremely important that injured patients have a remedy for their injuries and that the costs of their medical expenses and other needs are not borne by Medicare, private insurance, employers and the patients themselves. The medical device industry should be accountable for its products just like drug companies or any other industry.

Meanwhile, yesterday the FDA announced it would review its approval of Menaflex, a knee-surgery device made by ReGen Biologics.  According to the Wall Street Journal, this affair raised “legitimate concerns about whether the agency's review process and decision...were compromised.” 

The bigger problem is that unless Congress fixes the law, anyone harmed or killed by the device has no legal recourse.

In the News

A jury ruled that two off-duty Fresno, CA police officers were liable for helping a relative beat up an unsuspecting Christmas tree farmer.

The Justice Department agreed to settle with an Army National Guard member who filed suit after being denied a promotion at work because of her outside military duties.

A contractor and an engineering firm have agreed to settle a lawsuit filed after a Microsoft attorney was killed when a tower crane collapsed onto his Bellevue, WA apartment.

Iowa is a “governor's signature away” from allowing Iowans to sue under its version of the consumer fraud act—however, “insurance companies, banks, lawyers, cable-TV providers, doctors, veterinarians, and architects” will all be exempt from the new law.

A class-action settlement will require New Jersey's largest health-insurance provider, Horizon Blue Cross Blue Shield, to cover claims for treatment of eating disorders.