ThePopTort

The Physics of Patient Safety

Remember from high school, or maybe Oprah, Newton’s Third Law of Physics? To refresh, it’s this: for every action, there is an equal and opposite reaction. Lately, the world of patient safety seems to be taking some oddly literal guideline from this rule. Specifically, for every advancement in patient safety, there appears to be an equal and opposite setback.

Today, the Leapfrog Group released its new hospital safety rankings and found, “Of the 28 measures used to calculate the A, B, C, D or F grades, on average, hospital performance improved on eight measures, but average performance declined on six measures.”  And,

Despite the powerful stories of improving and high-performing hospitals, improvement across the board remains elusive. The Fall 2015 update shows a number of positive trends for certain hospital-acquired conditions and safety measures, but hospitals are performing worse on critical measures like foreign objects left in after surgery.

All I can say is, this seems to be a pattern. Harvard-affiliated Massachusetts General Hospital (MGH), which is considered to be “a national leader in patient safety and had already implemented approaches to improve safety in the operating room,” found medication errors in 1 out or 2, i.e. HALF, of its surgeries.  Of 277 observed operations, in 124 there was “at least one medication error or adverse drug event.”  What’s more, "Of all the observed adverse drug events and medication errors that could have resulted in patient harm — four of which were intercepted by operating room staff before affecting the patient — 30 percent were considered significant, 69 percent serious, and less than 2 percent life-threatening; none were fatal." Thank goodness for that, at least. 

And, they note, “While the frequency of errors and adverse events is much higher than has previously been reported in perioperative settings, it is actually in line with rates found in inpatient wards and outpatient clinics, where error rates have been systematically measured for many years.”  I’m not quite sure how this is supposed to make us feel any better.  Again, this is a hospital that was a patient safety “leader” and had already tried to “improve safety in the operating room.”

Meanwhile, while Leapfrog found “a number of positive trends for certain hospital-acquired conditions,” a hospital in York, Pennsylvania is now warning “1,300 patients who underwent open-heart surgery there within the past four years that they may be at risk for a bacterial infection [from heater-cooler devices that] may have contributed to the deaths of four patients.”

And here's another thing. Medical lobbies go around the country telling legislatures that states need to cap non-economic damages to injured patients – even catastrophically injured children – because it’s the only way to bring down health care costs? (The AMA actually wants Congress to pass California’s $250,000 cap on non-economic damages for the entire nation.)  Well you guessed it. According to Aon's new annual benchmark analysis of hospital and professional liability, in states where non-economic damages have been capped, like California,

The severity of average claims in these states has been increasing faster than elsewhere. In 2008, only 2.2% of claims from tort reform states exceeded $2,000,000.  By 2013, this proportion had risen to 4.1% and last year it jumped further, to 5%. … Moreover, … the distinction between tort reform and non-tort reform states is becoming increasing blurred with states such as California, Maryland and Florida, all of which are tort reform states, beginning to rival their non-tort reform counterparts.

In other words, a state caps non-economic damages, and the size of claims goes up.  Not quite the advertised effect. Of course, none of this is news to us. As other studies have shown, “caps” lead to more medical errors, higher health care costs and no increase in patient care physicians.

It’s just physics.

The Great Escape, Lawsuit Edition

This week, Sprint agreed to pay nearly $3 million in government fines after being caught by the Federal Trade Commission for cheating and deceiving people with low credit scores.  As the FTC’s Bureau of Consumer Protection explained, “Sprint failed to give many consumers required information about why they were placed in a more costly program, and when they did, the notice often came too late for consumers to choose another mobile carrier.…. Companies must follow the law when it comes to the way they use consumer credit reports and scores.”

Yes they must, and it’s wonderful to see the FTC on the job. But when consumers are cheated because of illegal corporate practices, neither government regulators nor law enforcers (like attorneys general) can usually do much to recover compensation for the victims. As we noted pretty recently in a post about the VW emissions scandal, class actions are the only realistic way to do that. But since the Supreme Court let them, corporations have been inserting clauses into contracts that ban class actions and force individuals to resolve disputes in corporate-controlled, secretive arbitration systems. Forced arbitration is bad enough.  But without being able to join with others in a class action lawsuit, most claims simply disappear, allowing corporate wrongdoers to completely escape any legal accountability.

The Consumer Financial Protection Bureau has taken the bold step of moving towards a rule to ban such clauses in consumer financial “contracts.” We hope they hurry because the damage caused by these clauses grows every day.

Today, the Center for Justice & Democracy released a new, updated fact sheet listing nearly 50 important cases that were dismissed because of forced arbitration clauses and class-action bans. These tossed cases were brought by customers ripped-off by automobile dealers, banks, credit card companies, phone companies, payday lenders and for-profit colleges (to name a few). They involve employees suffering from discrimination and wage and hour abuse. And we know there are many more cases out there. 

Notably, three cases were brought by customers defrauded by Sprint and, like the rest, were thrown out of court, leaving cheated customers with nothing. 

The Blue State Wall of Silence

The “blue wall of silence” – if you haven’t heard the term before - is a troubling reality that many victims of police misconduct must overcome, namely “the unwritten rule that exists among police officers not to report on a colleague's errors, misconducts, or crimes … or [to] claim ignorance of another officer's wrongdoing.”  Some believe this attitude has contributed to patterns of police brutality, so it’s disturbing to now learn that this “code” is essentially being required of victims and the public, as well.     

The Wall Street Journal has an article today about the conditions forced upon victims of police brutality with whom the city of Baltimore reaches legal settlements – namely, silence.  The paper writes, "In 95% of police-misconduct cases, as well as in some other types of disputes, Baltimore requires the plaintiff’s public silence, beyond saying that a satisfactory settlement was reached, according to Baltimore Solicitor George Nilson."

And make no mistake, silence is enforced.  

Violating that restriction can result in a settlement being cut in half.

The city last year withheld $31,500 of one woman’s $63,000 payment after she posted messages about her case on a newspaper website, for instance. …

“It kind of defeats the purpose of these types of lawsuits, which is to shine a light on police misconduct,” said Jeffrey Neslund, a Chicago attorney who represents plaintiffs in these cases.…

It’s rare for a city to impose gag orders on victims, says the paper.  Except it’s not so strange when considering the lengths to which many states go to cover-up histories of police misconduct

New York City’s public radio station, WNYC, recently did a fascinating investigative report finding "that a police officer's disciplinary history is effectively confidential in almost half of US states.”

In some of these states, the law explicitly exempts these records from public view. In others, records are secret in practice because police departments routinely withhold them under vague legal standards or in spite of court precedents.…

In [23] states, and the District of Columbia, a police officer's disciplinary history is mostly unavailable through public records requests.

In some cases, all public employee personnel files are exempt from disclosure. In others, police departments withhold records under a general privacy exemption.

Laws in New York, California, and Delaware specifically make law enforcement officers' personnel records confidential.

Indeed, our home base of New York, it turns out, is one of the worst when it comes to public access to such records.  Writes the New York Times,

The uniquely restrictive New York State law that is used to conceal the disciplinary histories of police officers — even some who have committed crimes — reared its head again last week in misconduct proceedings against the officer who brutalized the retired tennis player James Blake during a mistaken arrest in Manhattan last month.

The public has the right to be kept informed of police misconduct cases, especially at a time of heightened concern over police brutality. But when the city’s Civilian Complaint Review Board substantiated excessive force charges against James Frascatore, the officer who attacked Mr. Blake, it was allowed to release its findings to Mr. Blake’s lawyer but was barred from making them available to the public. Had Mr. Blake’s attorney not released the information, the public would still be in the dark.

And now, Massachusetts “is considering a controversial plan to shield investigations of police misconduct from the media and general public.”

A proposal by state Rep. Nick Collins, D-Boston, adds documents "related to any review of conduct of police officers which could result in disciplinary action" to a list of government materials exempted from public disclosure.

Interesting that the outliers making news over this issue are politically “blue” places like Baltimore Maryland, New York, and Massachusetts.  Maybe they just like the color.   

Safety, Kicked Down the Tracks

 

In case you didn’t hear, there was another train accident this month.

On October 5, an Amtrak passenger train, traveling through Vermont, derailed injuring six people, and, thankfully, killing none. 

Oh, and that wasn’t the only one.

On Friday, a Canadian National Railroad train, which derailed in southeastern Mississippi, sparked an “evacuation and highway closure after rail cars began leaking fuel oil.” 

Train accidents have become so common that, according to federal train safety data, they are happening daily- actually three times a day, on average. Check out some of the recent deadliest ones here. 

We’ve covered a number of them (here, here, and here), most recently the Amtrak train derailment in Philadelphia that killed 8 people and injured over 200 others. Sixty lawsuits have now been filed and consolidated before a federal judge in Philly. 

It seems like our nation’s rail problems aren’t getting any better and our lawmakers haven’t done much to stop more of these accidents from happening. But it gets even worse. The powerful railroad industry has failed to complete some life-saving safety measures that Congress ordered several years ago, and with the deadline now imminent, it looks like Congress will be kicking the can down the tracks once again. Instead of actually advancing safety standards, Congress may be about to roll them back.

Let me explain. In 2008, after a horrific train accident in Chatsworth, California that killed 25 and injured over 200, Congress, with wide bipartisan support and the signature of President George W. Bush, passed a law mandating that all railroads implement safety technology, called “positive train control” (“PTC”), by December 31, 2015.

PTC, as it is known, involves a network of ground-based computers, onboard systems that monitor a train's speed and position, satellite relays and wireless spectrum-based communications from thousands of towers alongside railroad tracks.

It is a technology that the National Transportation Safety Board has been urging deployment of for over 45 years, and federal safety officials say would have prevented many recent fatal accidents including May’s deadly derailment outside of Philadelphia. 

But now, with the end of the year deadline fast approaching and only 14% of the upgrades completed,  railroad companies are lobbying for more time to implement the system across their network. Although they have already had nearly eight years to complete the job, they want Congress to pass an additional three-year extension, plus the ability to opt for an addition two-year deferment. 

If they don’t get an extension, rail companies have threatened to “halt service rather than face fines and liability for operating without positive train control beyond the deadline.” According to NBC News, 

If rail service really were to shut down on key parts of the nation's network, the economic impact would be fierce. As many as 1.7 million daily commuters would be stranded from taking their regular trains to work, forced to find alternatives.

The American Chemistry Council recently estimated that a single month of rail service disruptions could result in a 2.6 percent reduction to U.S. real GDP in the first quarter of 2016 — pulling $30 billion out of the economy. According to the ACC's report, the unemployment rate would rise by 0.3 percent, with a loss of 700,000 jobs, and household incomes would fall by more than $17 billion.

In other words, extortion. The railroad industry has so much economic leverage that it can dictate to Congress and the American people whatever it wants, even though people may die. And what choice will many in Congress have? They either capitulate to the railroad industry, risking lives, or chance serious economic consequences.

So with the White House clearly signaling that unless an extension is passed, the administration will enforce the PTC regulations starting at the beginning of the year, Congress has been scrambling for a way to give the rail companies what they want.

Their first strategy was to put a PTC extension into the “Drive Act” – a 1000 page transportation bill marred by controversy. We wrote about it here. But since the future of the 6-year transportation-funding bill is less certain than it once was, members of the U.S. House of Representatives and Senate have introduced separate legislation to extend the PTC deadline.

While this has now undoubtedly become a priority for lawmakers, even these bills face an uncertain future. In the Senate, some Democrats have refused to pass an extension to PTC systems without a vote on the Highway bill. And with the House in complete disarray, it’s hard to see how anything passes there.

It would be nice if there were as much effort to pass safety legislation as there is to repeal it.

With all of this kicking the can down the track, we may have self-driving cars before we will have safe trains in America.

Birth Control Disorder

Last Saturday’s SNL, hosted by Amy Schumer, featured a much-discussed digital short on America's gun culture. (“Guns: They're here to stay!”) Personally, I enjoyed even more her Comedy Central piece contrasting the ridiculous burdens on women trying to obtain birth control, with the relative ease of buying a gun in America. Here’s the thing, though. When it comes to preventing unwanted pregnancies, the issue isn’t just about access to birth control. It’s also about the safety of the drugs and devices created to control female reproductive systems. Indeed, we’ve written about this topic many times (e.g., here, here, here, here here.)  In other words, this comes up a lot. The problem, in a nutshell, is this:

Regulatory failings have had a great impact in the area of women’s health because of the number of products routinely prescribed to otherwise healthy women to control some aspect of their reproductive system. As University of Buffalo Law Professor Lucinda Finley has written, “Reproductive or sexual harm caused by drugs and medical devices has a highly disproportionate impact on women, because far more drugs and devices have been devised to control women’s fertility or bodily functions associated with sex and childbearing than have been devised for men.”

We wish things were getting better but as the saying goes, the more things change …. 

It was just last month when we first learned about problems associated with Bayer’s Essure metallic birth control implant. (Just the sound of that scares me.) Writes NBC News:

The Essure implant has been sold for more than a decade and is frequently pitched to women as the only non-surgical option for permanent birth control. Manufacturer Bayer estimates 750,000 women have received the device since 2002.

But since 2013, the Food and Drug Administration has received thousands of complaints about the device from women and doctors. While the product's label warns about pelvic pain and bleeding immediately after the procedure, many women say these problems persisted and were so severe they required invasive surgery to remove the device.…

[Problems] include … chronic pain, headaches, mood disorders, hair loss and irregular bleeding. Many of those complaints have been shared through social media, including a Facebook page called Essure Problems, which has more than 20,000 members.

Incredibly, “The American College of Obstetricians and Gynecologists, Physicians for Reproductive Health, and Planned Parenthood Federation of America defended Essure,” saying, “Today, Essure is the only permanent contraception that can be performed non-surgically, allowing women to avoid potential complications associated with surgery and general anesthesia, especially those with certain medical conditions.”

Well if the point is to avoid surgery, we have some news for them.  A new study of Essure, released yesterday, found as follows: 

Women who sought permanent sterilization through a contraceptive implant called Essure were 10 times as more likely to be back for surgery within a year than women who had their tubes tied, according to a new study of 52,326 women sterilized in hospitals and ambulatory surgery centers in New York State from 2005 to 2013.

The findings add to growing concerns about the device, which has been on the market for over a decade. Thousands of women who claim they have been hurt by it have urged the Food and Drug Administration to warn the public about potential complications and pull the device from the market. …

 “This study is important because it looked at Essure women in the real world, not the more ideal world of clinical trials,” said Diana Zuckerman, president of the National Center for Health Research, a nonprofit consumer research group. “The very high rate of reoperations — 10 times as high with Essure — is likely to add to concerns about the accuracy of the clinical trial data provided to the F.D.A.” when the device was approved.…

Since the device went on the market 13 years ago, the F.D.A. has received more than 5,000 complaints about serious complications, including severe back and pelvic pain; painful intercourse; heavy, prolonged menstrual bleeding; chronic fatigue; autoimmune diseases. It has also received reports that the device’s coils have pierced the fallopian tubes and lodged in organs, leading to hysterectomies and other surgeries. Bayer officials have said repeatedly that the device is safe and that the complications are in line with those from surgical sterilization.

Yet, “Some experts familiar with Essure said the new study may have underestimated or failed to capture all of the complications related to the device.”

What a disaster. Your move, Amy Schumer.

CFPB Tells Corporate Bullies: ‘You’re Wrong. Stop Blocking Lawsuits’

In March, we covered the federal Consumer Financial Protection Bureau’s “extraordinary study – over 700 pages long – finding that [forced arbitration] clauses … plus class action waivers result in the disappearance of claims and immunity for the wrongdoer.”  (See more here.) As Reuter’s Alison Frankel put it in her story called, "CFPB arbitration study a powerful vindication of consumer class actions."

The study’s findings are unequivocal: Class actions deliver cash relief to vastly more consumers – especially those with small dollar claims – than individual arbitration. The CFPB hasn’t yet proposed a rule to restrict financial services companies from requiring consumers to arbitrate their cases, but that’s almost sure to come. Whatever limitations the CFPB proposes will be hotly contested by banks and other businesses before a final rule goes into effect.

“Hotly contested” hardly describes what happened next. Bullying corporate lobbyists went crying to mommy – i.e., Congress – to try to shut down the CFPB. Efforts were underway to defund the agency  and completely change its structure so it couldn’t effectively function. 

But this wasn’t enough. They demanded that Congress intervene and force the agency to “reopen” this arbitration study, delaying any sort of rulemaking, alleging that this massive, painstakingly-researched empirical study wasn't comprehensive enough.

Take note, kids. This is how you deal with schoolyard bullies: You keep your head up, stay strong and carry on. And that’s just what CFPB did yesterday, ignoring those who would defy hard data and releasing a proposal to prohibit companies from banning class action lawsuits, or in their exact words, “ban companies from using arbitration clauses as a free pass to avoid accountability.”

The agency explained on its website:

Remember the last time you signed up for a credit card or student loan? You could be one of the millions of consumers who have signed away the right to join together with other consumers in a group lawsuit to get compensation from a company when it breaks the law and harms you. Buried in many contracts for consumer financial products are arbitration clauses that block consumers from seeking relief through class action lawsuits.…

The presence of such a clause means that if you want to claim financial relief from a company that has wronged you, you must proceed individually. That’s true, no matter how small your claim and no matter how many customers may have been harmed by exactly the same wrongdoing. And even if you win your claim and receive compensation for your wrong, the company may continue the illegal and harmful behavior toward other consumers. Our March study found that very few consumers individually seek relief through arbitration or the courts.…

Today, we are issuing proposals under consideration addressing arbitration clauses in consumer financial contracts. These proposals would make it illegal for contracts for many types of consumer financial products to have an arbitration clause that deprives consumers of the opportunity to participate in a class action lawsuit. These proposals would apply to products and services including credit cards, checking and deposit accounts, prepaid cards, money transfer services, certain auto loans, auto title loans, small dollar or payday loans, private student loans and installment loans.

Lifting this barrier to group lawsuits will empower consumers to hold companies accountable and seek relief for harms suffered. Moreover, we believe it will encourage companies to comply with the law. Read more about our study on arbitration agreements in our March 2015 report to Congress.

This remarkable agency is going to need everyone’s assistance to help them fight back against the continuing assault by corporate bullies who will try to undermine its work - indeed the CFPB’s very existence. Let the CFPB - and your member of Congress - know how much you appreciate what they’ve done, and hopefully will continue to do. In fact, tell them that they now must go further and ban forced arbitration clauses altogether.  

Why Are Class Actions So Critical? It’s Volkswagen, Duh!

Class action lawsuits are among the most important tools that harmed, cheated and violated individuals and small businesses have to hold large corporations and institutions accountable. But with the start of the new U.S. Supreme Court term, there has been commentary from all sides (see e.g. here, here, here) recognizing one very scary possibility: by the end of this term, SCOTUS could decimate class actions. Or I should say, finish the job they already started when they allowed corporations to ban class actions via contracts, and force people into private, corporate-run arbitration systems. Even when companies commit civil rights violations. Even when nursing homes neglect or abuse patients. Even when huge cartels steal from small businesses. Even when bank and credit card companies cheat customers. (See more examples here.)

But if you think huge corporations and their allies in Congress are sitting back and waiting for the Court to act, I’ve got a Volkswagen “clean diesel” car I’d like to sell you! (C’mon. It’s right here on my back lot. Just a tiny mark-up for those “low emission” extras.) 

Perhaps even more under the radar than these big Supreme Court cases is a little bitty congressional bill called H.R. 1927, the “Orwellian-named” Fairness in Class Action Litigation Act of 2015. This bill, which has already been approved by the U.S. House Judiciary Committee and sent to the House for a vote, would make it virtually impossible for any class action to proceed. Yes, all the examples above would be covered. But you'd no longer need a contract to be shut out of court. As long as you were harmed, cheated, defrauded, abused or violated and tried to join with others to sue, your case would be thrown out of court almost immediately under this bill.

Last week, we wrote about state legislation, circulated by the American Legislative Exchange Council (ALEC), the secretive group run and funded by big corporations, which would accomplish basically the same thing - but on a state by state basis. Here’s what our satirical “confidential Volkswagen memo” said:

ALEC wants to make class actions impossible to bring, so hundreds of thousands, or perhaps millions of victims, can’t join together in a lawsuit against us [Volkswagen]– even though we stuck the exact same cheating software in every single one of their cars. Just look at the hurdles and burdens their bill would place on our (likely ex-) customers. They'll all have to hire their own attorney and go through the time and expense of proving their cases one by one by one (which we expect they'll never do.) 

But if H.R. 1927 became law, states could just sit back and relax while Congress did the dirty work for them – courtesy of the bill’s prime sponsor, House Judiciary Committee Chairman Bob Goodlatte (VA-R). (His own Virginia constituents would be shut out of court by this legisation.) As we wrote last April,

While H.R. 1927 doesn’t come out and simply prohibit class action suits, it establishes criteria that is nearly impossible for plaintiffs' to meet.…

Slews of cases and victims would be disqualified from bringing a class suit. The requirement that every member of a class have the same type and extent [now “scope”] of injury would preclude numerous class actions over predatory lending practices, anti-trust violations, employment law violations, unfair bank overdraft policies, denial of insurance benefits, and more - much more than I can mention. Even victims of the BP oil spill would be covered by this bill.

Now add customers cheated by VW, who paid thousands of dollars in markups to get a "clean" diesel car.  Even if VW can now “fix” their car, these customers will never own the car they thought they were buying.  So not only are they out a lot of money, they were horribly deceived and many will want their money back. Wouldn’t you?

Class actions, which have now been filed in at least 32 states, are the only realistic way for angry customers to recover what they're owed. Some state AG’s are also stepping in as law enforcers, as they should. And while some state AG’s, like West Virginia’s, will try to recover compensation for their residents, most state AG’s lack authority to recover private damages for individuals (as opposed to civil fines which go to the state). And even if they have the authority, they usually lack the enormous resources needed to handle discovery in these cases, to hunt down documents and uncover what really happened. This detective work is something the private bar can often do best.

Some firms explained to the National Law Journal the reasoning behind several of these filings:

Many of the class actions are seeking reimbursement for the premium prices they paid, but others want much more than that. “Even if you give them a fix that is only to meet EPA regulations, they still didn’t get the fuel efficiency they wanted,” said Frank Pitre of Cotchett, Pitre & McCarthy in Burlingame, California. “Those folks might say: ‘I want my money back.’ ” …

One favorite venue is the Eastern District of Virginia, where Volkswagen’s U.S. headquarters is based in Herndon. Volkswagen Group of America Inc. has been named in nearly all the suits, and subsidiary Audi A.G., whose U.S. division is also based in Herndon, has been named in a few cases.

“We think that there’s certainly going to be witnesses and evidence centered in that district,” said Warren Burns, a partner at Burns Charest in Dallas. “It’s been my experience in cases of this size and complexity that invariably you’ll be drawn by the decision-makers, and those folks are in the headquarters.” …

But there’s also California. In addition to the California Air Resources Board, which assisted the EPA in uncovering the scandal, two electronics research laboratories in the San Francisco Bay Area were involved in recent testing of renewable fuels in Volkswagen’s diesel cars.

“We think there’s a gold mine of information here in Belmont about how bad these vehicles were performing and, what’s worse, continuing to tout these vehicles were performing very well and even better with renewable fuels,” Pitre said. …

 “We have California defendants that we believe knew or should have known about the fact that the emissions were rigged,” said A. Barry Cappello, managing partner of Cappello & Noël in Santa Barbara.

In April, more than 50 national and state organizations sent a letter to Congress expressing strong opposition to H.R. 1927, including a broad array of prominent consumer, civil rights, immigration, labor, environmental, health, food and product safety, employment, housing, senior citizen, children’s, low-income and legal services organizations, among others. The groups said this bill “would effectively eviscerate consumer, employment and civil rights class actions.” The importance of class actions is clearer than ever. Time to let Congress know how you feel.

Energy Barons Uphold the Dangerous Workplace Tradition

Don Blankenship, Massey Energy’s former CEO (also known as “[o]ne of the most reprehensible bosses in recent history”), today goes to trial. The charges stem from the 2010 West Virginia Upper Big Branch coal mine explosion “that killed 29 workers, the U.S. industry’s deadliest in almost four decades.”  (See some of our earlier coverage here, here, including how the families who sued were compensated. ) Writes Slate, “He will be brought to justice for allegedly shunning coal mine safety rules, conspiring to conceal safety violations, and lying to the U.S. Securities and Exchange Commission and company shareholders.” (Interesting contrast to the U.S. Department of Justice’s “hands-off” attitude towards GM executives responsible for far more deaths.)

Miners’ safety is at the forefront of this trial, and interestingly, notes Bloomberg, “Massey Energy was one of a handful of mining and energy companies that tied its chief executive officer’s bonus to safety performance in 2010."

Blankenship had his bonus cut by about $150,000 [the year of the mine explosion] for failing to meet safety goals. He still got a $669,000 award because only 10.5 percent of his annual bonus was tied to safety.

“If 90 percent of your bonus can be achieved with full disregard to health and safety, that’s an underwhelming link,” Anne Simpson, senior portfolio manager and director of corporate governance at the California Public Employees’ Retirement System, the largest U.S. pension, said of typical executive-compensation practices. “Particularly in an industry where health and safety is absolutely the foundation of the company’s license to operate, its reputation, its operational risk and, of course, ultimately financial success.”

In fact, as Bloomberg shows, there doesn’t seem to be any correlation at all between this kind of compensation incentive and worker safety. The incentives were pretty weak at Massey and Blankenship even flunked those (although he got an eight-figure package when he “retired.”)

Let’s not spend too much time on that crook and instead keep the focus where it should be – on the workers who are injured or killed producing energy for the rest of us.  Sadly, things don’t seem to be getting much better for them. For example, “A new report suggests oil-field work has never been more dangerous.” Last year was, according on one article, "one of the deadliest years for oil and gas workers."

Earlier this month, the Bureau of Labor Statistics said 142 oil and gas workers died in 2014, a 27 percent jump from 2013, when 112 workers died.

That 2014 number may even increase when the final federal breakdown is released in April, said Rebecca Reindel, senior safety and health specialist with AFL-CIO.

The labor group releases an annual report on worker safety and tracks fatalities and injuries in many employment categories. Reindel said she was jolted by the rise in oil and gas deaths.

"Oil and gas deaths are the highest we've seen them, possibly ever (recorded), definitely the highest going back to 2003," she said.

Actually, all of this is in line with the dismal state of worker safety generally.  As FairWarning reported just a couple weeks ago,

More Americans died on the job last year, with the increase concentrated among older employees as well as self-employed and contract workers. Preliminary federal figures released today for 2014 put the workplace death total at 4,679, up 2 percent from the final count of 4,585 for 2013.

The new figures amount to the highest preliminary death total in six years, and the total will almost certainly grow by the time final numbers for 2014 are issued in the spring.

As for Blankenship himself, he seems bad or worse, as well. I mean, just as a person on Earth. Apparently, “[h]e released a self-made ‘documentary saying that the Upper Big Branch disaster was an ‘act of God’ caused when miners struck a hidden natural gas pocket and not the result of defective equipment and procedures, as investigators have found.” He faces 30 years in prison.