ThePopTort

SOTU: How About We Try Managing Care Properly for a Change?

We’re not saying it was among the most tweeted moments of the night, like the President’s call to increase the minimum wage or #watergate.  We’re not even comparing it to important issues like fixing the voting process, ending climate change or stopping gun violence.

But we would be remiss not to observe that in the State of the Union address last night, when the President discussed health care, he noted the following:

We’ll bring down [Medicare] costs by changing the way our government pays for Medicare, because our medical bills shouldn’t be based on the number of tests ordered or days spent in the hospital – they should be based on the quality of care that our seniors receive.

So, wait, in other words, “fear of ligation” (even though less than 5% of errors result in a lawsuit) isn’t the problem, but rather it’s Medicare’s “fee-for-service” medicine?  In other words, we need to fix a system that creates perverse incentives for providers to do too many tests and not make patients better?  And we can fix this problem by managing care properly, not by stripping patients of their legal rights?

Well, knock me over with a tiny Poland Spring water bottle.

The White House and Medical Groveling

Corrupt or petrified. One of these words describes this Administration’s groveling relationship with the health care and medical industries, and I’m not sure which it is.

On the one hand, the President expended enormous political capital to pass a flawed heath care reform law (challenges over which may move to the U.S. Supreme Court today). No question this law provides many good things but when it comes to any real controls on the profiteering health insurance industry, Mr. Obama caved almost completely.  In fact, because the President allowed this industry to continue getting away with murder, states like Maine are ending up like this: 

The insurers hit the jackpot in the spring when the industry's legislative allies rushed a bill through -- which LePage quickly signed -- that will indeed reform the state's health insurance marketplace -- exactly the way insurers want. In anticipation of the law becoming effective, insurers prepared new rate quotes that enabled them to increase premiums -- in many cases dramatically -- for policies that renewed Oct. 1.

The industry's lobbyists must have been pinching themselves that they were able to get everything they wanted to ensure their employers will reap handsome profits over the next few years. In addition, the state's insurers are in firm control of a committee the governor appointed to advise lawmakers on how to set up the state exchange, or insurance marketplace, required by the federal law.

It's hard to imagine what else they could have asked for that they didn't get.

Luckily, some states are being more active. Consumer Watchdog just submitted a ballot initiative in California that would be a major crackdown on price-gouging by the health insurance industry.  New York is ordering refunds, and as we noted before, forcing these companies to disclose information they would prefer to keep secret.  But nationally, those activities are few and far between.

Caving to pressure to get the health care law passed is hardly the only example of medical groveling by this Administration.  Earlier this week, we told you about the outcry over the federal government’s decision to shut down the public portion of the National Practitioner Data Bank.  We are happy to report that the public database has just been reopened - but not without planting a boot firmly on the neck of the First Amendment!

As the New York Times writes:

A federal health agency on Wednesday restored to its Web site a database of doctor disciplinary actions two months after pulling it off the Internet in response to a doctor’s complaints. But the return of the information came with a catch. It has a new requirement that anyone who uses it must first promise not to link information in the database with publicly available information, like court files, to identify any doctor. And that was exactly the way journalists for many news organizations had used the national data bank, which masked individual doctors’ names, to identify weaknesses in the oversight of doctors with dozens of malpractice cases. …

Dr. Sidney M. Wolfe, director of health research at the Washington nonprofit group Public Citizen, said it was “obnoxious” and “unacceptable” for the administration to require journalists and researchers to attest they would not use the information in the very way they had been using to expose gaps in the system.

The website was shut down in September by Cynthia Grubbs at HHS after being pressured by a neurosurgeon who had at least 17 malpractice lawsuits against him and was being investigated by The Kansas City Star:

Dr. Robert T. Tenny, in an Aug. 24 fax to Ms. Grubb, wrote: “The settlements made in the cases listed were all CONFIDENTIAL. PLEASE HELP!” A month later, after the file was removed from the government Web site, he wrote, “Stay strong and keep up the good work!”

Ms. Grubbs also wrote the reporter to warn him he could be fined for using the information.

Seems like a clear constitutional violation.  You know what this White House needs? A good constitutional lawyer.  Hhmm.

The Politics of “Tort Reform” Gobbledygook

Your challenge: try to make sense of the following.  But we will have no winners, at least not today.

The U.S. House Judiciary Committee continues its mark up of H.R. 5 on Wednesday, a bill that would massively preempt state medical malpractice laws as bill supporters try to tell states that they do not know best - Congress does.  This will come a couple hours after those same bill supporters denounce the new health care law as unconstitutional after arguing that Congress does not know best - states do.

Some of these same members of Congress just formed a “Civil Justice Caucus,” the goal of which is not to support civil justice but to obliterate it.

Meanwhile, President Obama has decided to use scarce budget dollars to further harm the sick and injured who may already be suffering directly because of his budget.  Specifically, in a budget that fails to provide enough money for housing and heating assistance for the poor, the budget proposed by President Obama includes $250 million for unneeded state programs that will harm patients injured by medical malpractice, jeopardize patient safety and generate more profit for the corporations that control the health care industry.  Some of these measures would eliminate the right to trial by jury in medical malpractice cases and are likely unconstitutional.

And New York Governor Andrew Cuomo – or at least a “Medicaid Redesign Team” that he appointed - appears interested in recommending Draconian restrictions on the rights of patients, specifically targeting brain-damaged babies.  These proposals have nothing whatsoever to do with saving Medicaid money, but instead will generate profit for the corporations that control the health care industry.

Are you as lost as we are?

The President and Medical Malpractice – A Knife in the Stomach

You may have heard last night that the President decided to throw victims of medical negligence under the bus. This was a very sad move not only for the people who will be hurt by this, but also for his apparent decision to pander to certain people on the right.  (Actually, this is unlike others on the right, like Ramesh Ponnuru who said in the National Review Online, “Great: President Obama is open to one of the Republicans’ crummiest ideas. There’s no need for a federal takeover of medical-malpractice rules.”) 

Here’s what the President said in his State of the Union address: “I’m willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.”

To Republicans, that means capping compensation for the most seriously injured victims.  That's basically their only idea.  As was evident at last week’s House Judiciary Committee hearing, while they try to link caps to “frivolous lawsuits” (which are not a problem to begin with), in reality caps only apply to the most seriously injured victims, who have already won their case and proven that the health care provider was negligent. 

Patients used to hear President George W. Bush constantly talk about “frivolous lawsuits.”  We can’t speak for every patient today, but for those whose lives have been destroyed by medical malpractice and have tried to seek justice in court (like the parents of Olivia Cull), I expect that this was like another knife in their stomach.

Damn the Regulations, Full Speed Ahead!

It’s official.  We are officially back to the Bush era!

One of our favorite PopTort themes is that consumers are kept safe from the havoc inflicted by corporate miscreants by both tough regulations and the deterrent effect of legal liability.  President George W. Bush did a great job turning federal regulatory agencies into apologists for corporate wrongdoing.  Take for example, the Occupational Safety and Health Administration (OSHA), which we covered in 2009  when the Washington Post wrote, “political appointees ordered the withdrawal of dozens of workplace health regulations, slow-rolled others, and altered the reach of its warnings and rules in response to industry pressure.… The result is a legacy of unregulation common to several health-protection agencies under Bush.”

We were hoping this would not also be the legacy of our new President, but it looks like the U.S. Chamber of Commerce has finally had its way with him.  Today, the President took to the pages of the Wall Street Journal  announcing his new Executive Order that will lead to eliminating regulations whenever possible, it seems - like, for example, if businesses can argue that health and safety regulations will cost jobs.  Salon writes:

The argument for less regulation reads somewhat antithetically. Obama is quick to point out how regulation places "unreasonable burdens on business — burdens that have stifled innovation and have had a chilling effect on growth and jobs." His executive order promises to eliminate "absurd and unnecessary paperwork requirements that waste time and money" as well as "avoid excessive, inconsistent and redundant regulation."

But in the same breath, he recognizes how a lack of government oversight nearly caused the next Great Depression.

But I know, everything IS about jobs now (thanks to a ruined economy caused by lack of regulation).  And if you don’t think jobs will be used as any excuse to endanger the public’s health and safety, take a look at the title for Thursday’s House Judiciary Committee hearing: Oversight Hearing on "Medical Liability Reform - Cutting Costs, Spurring Investment, Creating Jobs"  (Center for Justice & Democracy’s Ex. Dir. Joanne Doroshow will be testifying as the only witness for the D’s, by the way!)

I guess one could make the argument that a weakened tort system, which leads to more dangerous hospitals, will create the need for more prosthetics manufactures, physical therapists and round the clock nursing care.  But I’d rather not go there.

The Official White House Holiday Card

We were waiting and waiting for the White House holiday card this year and it finally came today!  And let me tell you, it was full of surprises. 

First was the realization that Bo’s paw is really really small.  I don’t know how he gets around.

Second, we could not have been more thrilled to see the President add an important message right there in the card!  See that (*) next to the words “simple gifts of the season?”  We couldn’t get that part of the card to scan properly, so here’s what else it says:

* Including keeping politicians’ hands off the right to civil jury trial; making sure that all corporate wrongdoers are held fully accountable in court; ensuring that all people injured through no fault of their own have a chance to go to court and be fairly compensated; making sure judges don’t have to look over their shoulder worrying what corporate front groups think of them; and keeping our civil justice system strong.  And while you’re at it, support the Center for Justice & Democracy with an end-of-year tax-deductible donation.  And vote for ThePopTort, too.  Thank you America!

No, thank you, Mr. President!

Sprinkles of Civil Justice (With a Post Election Flavor)

So what do the civil courts have in store for us, post mid-term elections?  Looks like a dash of new state hurdles here, a pinch of federal obstruction there.  Let’s take a look at a few smidgens!

First, Oklahoma's new Attorney General-elect, Scott Pruitt, apparently accepted thousands of dollars in campaign donations from poultry industry employees, for which he was heavily criticized – and for good reason.  As soon as he was elected, he announced that he would consider stopping the state’s lawsuit against the poultry industry for causing “widespread pollution” even though the state “has spent millions of dollars arguing the case, and it is awaiting a judge's ruling.”

Also, in an article earlier this week, New York Times reports that the new Governor-elect of Wisconsin, Scott Walker, said “he planned to remove all ‘litigation, regulation, excessive cost’ barriers to businesses (declaring Wisconsin, on election night, ‘open for business!’)."  In other words, no accountability for wrongdoing whatsoever!  How attractive!  (Hope you’re paying attention toxic polluters, makers of unsafe children’s products, dangerous commercial truckers and hazardous equipment manufacturers.)

On the federal judiciary front, Ann Woolner writes for Bloomberg, 

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices...

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

And when it comes to one of the hottest environmental issues today – greenhouse gases - a new study by “DB Climate Change Advisors (DBCCA), a New York-based eco-investment advisory unit of Deutsche Bank Group” concluded that:

The failure of federal cap and trade, the return of Republican control in the U.S. House and California's plans to move forward on that state's greenhouse gas law will probably inspire a new wave of lawsuits moving the climate change battle to the courts,

"It is probably inevitable that people are turning to litigation to fill the void left by the lack of legislation, and it is possible that the threat of court action will in some cases galvanize legislators to take action where before they had simply avoided the issue," DBCCA analysts say in the report, titled "Growth of U.S. Climate Change Litigation: Trends and Consequences."

And finally, the decision as to who will be Alaska's next Senator moves to the courts, with Tea Party trial lawyer Joe Miller now suing to invalidate a lot of Sen. Lisa Murkowski’s write-in ballots. 

Whoa, back up a minute.  Did we say "Tea Party trial lawyer"?  You betcha we did!  Specializing in all kinds of accidents including medical malpractice cases, Mr. Miller writes on his web site:

Have you been injured? If you have suffered serious injury as a result of an accident, you have probably been contacted by an insurance adjustor. Remember, insurance adjustors are in the business of saving insurance companies money, not helping you. Insurance adjustors are very skilled in what they do...

Every day, Insurance Companies convince accident victims that their injuries are insignificant and deserve little compensation. You should always contact an attorney before resolving your case.

Couldn't have said it better ourselves, Joe.

Can We Please Put James Carville in Charge?

Even if you didn’t watch last night, you no doubt heard bits and pieces of President Obama’s Oval Office speech.  Here’s a bit:

Tomorrow, I will meet with the chairman of BP and inform him that he is to set aside whatever resources are required to compensate the workers and business owners who have been harmed as a result of his company's recklessness. And this fund will not be controlled by BP. In order to ensure that all legitimate claims are paid out in a fair and timely manner, the account must and will be administered by an independent, third party.

Hmm.  I have my doubts.  Already reports indicate that BP isn’t going quietly along with this. The Washington Post reports,  "Most importantly, [BP] wants some sense that there's going to be a limit to its liability, and that it won't have to make up the lost wages of every rig worker sidelined by the administration's six-month moratorium on deep-water drilling."

Close your eyes for a second and imagine that ragin' James Carville were in charge.  If you weren’t watching Larry King last night (I know, who was?), you missed this:

KING: What would you tell him?

CARVILLE: I would say you are the largest tortfeasa -- tortfeasor -- in the history of the United States. It is possible, we're looking into it. It may be even criminal negligence.

Now, let me tell you the way this is going to work, because we're a country that holds third graders accountable, we're certainly going to hold you accountable for everything that you've done. And we're going to start out and -- and I'm going to suggest a figure here and I want you to react to it, to put it in escrow. And let's just start at $20 billion. And then I'd see how they reacted.

And I would be very tough. And I would explain to them that -- that it's very important that everybody know that you clean up your mess. You know, you walk in -- you walk into my children's room and say, clean up your mess. Tell BP just because they're a gazillion, billion dollar company, they've got to clean their mess up, too. And if I was the president, I would make that very clear and very plain in a very determined way.

Oh and by the way, if you don’t subscribe to the Wall Street Journal, you may have missed the op ed from University of Chicago Professor Richard Epstein (visiting scholar at the rabidly pro-“tort reform" Manhattan Institute!)  called “BP Doesn't Deserve a Liability Cap; The best way to deter future spills is to expose drillers to the full costs of any mistake and not let any company without proper insurance near an oil derrick.”  Woops, guess the Manhattan Institute's quality control department was out sick yesterday.  Here's a little of what Epstein wrote:

Tort remedies are essential to protect people (and their property) who do not have contractual relations with defendants from harms such as air and water pollution. The legal system should never allow self-interested parties to keep for themselves all the gains from dangerous activities that unilaterally impose losses on others—which is why the most devout defender of laissez-faire must insist, not just concede, that tough medicine is needed in these cases. …

A tough liability system does more than provide compensation for serious harms after the fact. It also sorts out the wheat from the chaff—so that in this case companies with weak safety profiles don't get within a mile of an oil derrick.

 Funny how a little oil spill can make the value of the tort system a lot more clear to people.

UPDATE: It's on!  BP agrees to $20 billion fund to be administered by 9/11 compensation fund mediator Ken Feinberg.

The Other Nuclear Power Subsidy – A Liability Cap

With all the hoopla about the resurgence of nuclear power thanks to the President’s announcement of $8.33 billion in loan guarantees for Georgia's Vogtle plant, there’s a lot of talk about whether the federal government should be backing a technology that carries such economic and safety risks, that Wall Street itself has avoided it for 30 years.  Now that the government has stepped in, it’s the taxpayers and ratepayers who will end of paying for a lot of this. 

But loan guarantees aren’t the only potential subsidy from which this industry benefits.  Since the 1950s, when it passed the Price Anderson Act, Congress put a cap on the liability of the nuclear industry in the event of a major accident.  So if there’s anything like, say, the Chernobyl disaster (the 1986 accident in the Ukraine where the containment structure couldn’t hold an explosion causing lethal radiation to spill out killing thousands, harming hundreds of thousands and rendering hundreds of square miles uninhabitable), the industry won’t be responsible beyond a relatively small amount.  Taxpayers will.  In other words, if the nuclear power industry were fully responsible for the health and safety risks of these plants, the industry wouldn’t exist. 

A major accident won’t happen now, some may say.  These new reactors are safe and companies have learned their lesson – they won’t cut safety corners like they used to when, for example, the company running the Three Mile Island reactors was indicted and pled guilty for creating conditions that caused the worst commercial nuclear accident in this country (so far)?  Well, let’s just say they are not off to a great start.

The type of plant proposed for Georgia, built by Westinghouse, has run into trouble with its “Safety Shield Building”, which is supposed to protect the reactor from tornados, hurricanes, earthquakes and airplane crashes, as well as keep large amounts of radiation contained in the event of an accident. In an effort apparently to save money, this building design “features modual construction – bringing prefab components to the site, rather than construction of the Safety Shield Building on-site from the ground-up.”   On October 15, 2009, the Nuclear Regulatory Commission sent a letter to the company, saying this design raises major safety concerns.

Perhaps designs for the sake of expediency and trouble acknowledging problems may still be with us. Calling these reactors “our poster child for how to do it right,” an industry representative said, as reported by ABC News, “NRC concerns with the shield building have been resolved to [his] knowledge."  The NRC says no.  We’ll see.  However, never to be resolved are a few other problems, like the fact that reactors are operated by human beings who can make mistakes. They are still dependent on a highly complex technology, which is vulnerable to failure for any number of reasons. And they all contain lethal radioactive fuel, which can melt.

Right-Wing Wingnuts and "Tort Reform"

What do you call someone who is anti-family, supports burdening taxpayers with more government spending, backs those who won’t take personal responsibility for their actions, and opposes states rights?  No, this isn’t Sarah Palin trying to offend liberals.  This is crazy right-wingers, like Rep. Darrell Issa (R-Calif.), describing, well, himself.  Like every other right-wing member of Congress these days, Issa’s main health insurance reform “idea” seems to be weakening liability for reckless health care providers, forcing innocent families and/or taxpayers to pick up the tab, and harassing President Obama for not agreeing with him.  Let’s add one more descriptive term to the list: hypocrite.  (Actually, nothing new here, here.)

So-called “tort reform” is nothing if not a violation of the most fundamental of conservative principles.  For example:

·      Personal responsibility: “Tort reform” relieves corporations and other wrongdoers of responsibility for their misconduct.

·      Lower taxes and less government spending: “Tort reform” shifts the cost of compensating injured citizens from wrongdoers to taxpayer-funded health and disability programs.

·      Family Values/Protection of Children: “Tort reform” can be catastrophic for many children and their families, causing untold suffering, economic devastation, and for some, the destruction of family life.

·      Less government regulation:  “Tort reform” regulates what is essentially a free-market approach to holding corporations and other wrongdoers accountable for injuring or killing people.

·      States Rights: There could be no greater intrusion on traditional state authority than federal tort reforms that tie the hands of local judges and juries.

As for health insurance reform, the right-wing nuts will throw their most basic principles out the window in order to protect reckless and incompetent doctors and dangerous hospitals.  Actually, Sarah Palin fits right in, you betcha. 

UPDATE:  From the February 8 New York Times: "Republicans also contend that changes in state medical malpractice laws could lower costs and slow the growth of premiums. However, some of these proposals — like federal limits on damages for pain and suffering and punitive damages — are potentially in conflict with the Republicans’ emphasis on federalism and state autonomy."