Dunno, somehow we thought it might be different this year.
Every four years, the National Federation of Independent Business (NFIB), which fashions itself as the nation’s largest small business lobby group (and indeed, it spends millions lobbying Congress and states each year), publishes a member survey. This is to present an accurate picture of current small-business problems. It’s called Small Business Problems & Priorities. It includes the most important and least important concerns out of 75 possible problems faced by small businesses. This is supposed to inform NFIB’s lobbying priorities because, they allege, “NFIB was founded on the principle that the membership governs.”
Once again this year, what NFIB dubs, “Cost and Frequency of Lawsuits/Threatened Lawsuits,” is an issue of less importance to small businesses than almost any issue they could possibly face, or on which they want lawmakers to focus. According to the NFIB’s 2020 small business survey (just released), this issue ranks 69 out of 75 possible small business concerns. That’s an even lower rank than it was four years ago. It is of less concern to them than, say, “Access to High-Speed Internet” (#63). Perhaps even more telling, when NFIB broke down the results into “clusters” of issues looking specifically at “Costs,” the topic “Cost and Frequency of Lawsuits/Threatened Lawsuits” ranked dead last.
Drilling down to business size, it is also clear that for “Mom and Pop” establishments, this issue is even less important to them. For small businesses with 1 to 4 employees, the issue came in at #70. For those with 5 to 9 employees as well as 10 to 19, the issue ranked #72.
And it doesn’t matter the state. Here are the state “Cost and Frequency of Lawsuits/Threatened Lawsuits” rankings, all out of 75 possible concerns:
Texas: #64
California: #65
Ohio: #70
New York: #71
For years, NFIB has devoted its substantial lobbying muscle to limiting lawsuits, arguing that this is an urgent issue for small businesses. It obviously isn’t yet it remains an important priority for NFIB lobbyists.
NFIB’s disconnect from its own members when it comes to liability issues has been going on for years.
NFIB says it has “an ear to the ground on what’s happening in Washington, D.C., and the state capitals.” Maybe it needs to put those ears near the voices of its own members. It is clearly not hearing them.
The following is a transcript obtained from a confidential source of a Zoom meeting held 2 p.m. on July 26, 2020, hosted by Senate Majority Leader “Don Mitch” McConnell.
Don Mitch: As you know, this is our regular weekly meeting of the five families charged with writing the "Freedom to Kill Workers, Consumers, Students and Elderly Act." While I do miss getting together at our old joint, the back room of the Swamp Restaurant Supply company, today we'll have to Zoom it because I have some important news to tell you about. We finally have a bill!
First, introductions. You all know me, Don Mitch. I’m here with my underboss, Johnny “Tex” Cornyn, whose name goes on everything we do here, so figured it was important to bring him along.
I see Pauly “Corporate Felony” Rhodes, from the U.S. Chamber of Commerce.
Also, Joey “Kill Grandma” Montgomery, representing the nursing home industry.
Louie “Hydroxychloroquine” Chadwick, on behalf of Big Pharma.
And Al “Screw All Businesses” Huntington, from the property/casualty insurance industry. Looks like we are all here.
Also joining us today is Baby “Agent Orange” Bleach, who is observing for the White House. Unless there is some objection … welcome Agent Orange. Just a word of caution about what you say here. We know Rudy’s your friend but remember this is the same guy who ran the SDNY back in the 1980s when he took down our mentors with those RICO charges. Don’t know if I trust that guy. No leaks, please.
(No response)
Kill Grandma: We are all grateful to Don Mitch for calling this meeting.
Don Mitch: Thank you Kill Grandma. Also a few other thank you’s are in order. I want to thank Corporate Felony in particular for your loyalty and hard work. Your organization, the U.S. Chamber of Commerce, which has been in my ear nonstop since this all started, has proven not only to be a great Consigliere but also a fabulous bagman! You’ve got some great earners in your organization. Your shakedown of politicians around the nation has been something to behold.
Corporate Felony: Thank you Don Mitch. You inspire me every day.
Don Mitch: I also want to give a particular shout-out to “Screw All Businesses.” The insurance industry has been an unsung hero in all this. Your ability to escape your responsibility for paying virus-related claims and then scaring small businesses to death by threatening never to cover them – all while hitting them with rate hikes! This has been a model for us all. A true North Star. We will follow you anywhere.
Screw All Businesses: I am honored and grateful that you have included me in this effort, Don Mitch.
Don Mitch: So let’s get down to it. As I mentioned, we have a bill. Now I’m not going to read all 65 pages of it. Gotta be nuts to do that. But rest assured, it’s got all of our top priorities so let’s review:
Most importantly, we have a bill that allows you to get away with murder, which I know is an important goal for all of you. Let me explain.
First, you don’t have to comply with any real safety standards to get immunity under this bill. You get immunity for following the weakest possible standards or guidance that you can find at any level– even if the standards say you don’t have to do anything. Plus here’s the really great part: you get immunity just for saying you “tried” to comply with it instead of actually making a workplace safe. On top of that, the only cases that can go forward are cases involving things like “gross negligence,” which we have defined to basically resemble second degree murder. Who’s gonna be able to prove that? After all, you're the experts at covering your tracks when someone’s whacked. You’ll be fine.
Second, even on the off-chance that some sick and dying worker, consumer, student or elderly patient actually does bring a case, they will face evidentiary burdens that are basically insurmountable. Just to file a case, they will need to allege information with such specificity that we are pretty sure no claim will ever be filed.
Third, even if they go through all of that and win a case, they’ll get almost nothing. Non-economic damages are not just capped (like we’ve always wanted) – their completely gone! We’ve eliminated them. After that, whatever they get is cut even further by things like health insurance.
Fourth, all state liability laws that have blocked your ability to move forward with your dangerous and unsafe plans are wiped out And we’ve forced all these cases into federal court where, of course, they have absolutely no business being, and which we’ve been packing with our own judges!
Now, we are going to have to change the name from our working title, the "Freedom to Kill Workers, Consumers, Students and Elderly Act." Let’s do something both amusing and confusing. How about the ‘‘SAFE TO WORK Act?" We'll come up with some mumbo jumbo to fit the acronym. Any objections? Hearing none, the ‘‘SAFE TO WORK Act" it is!
Agent Orange: Don Mitch, I just want to make sure that all the lawsuits brought by my Boss, Don Don, aren’t harmed by this bill, and that he can still sue the pants off anyone he doesn’t like. He has a lot of those goin’.
Don Mitch: No worries. He’s completely protected, as always.
Hydroxychloroquine: I don’t know. The Democrats in Congress have called this - and actually all of your ideas – a non-starter. Is it really?
Don Mitch: Well I don’t know who they think they are. But we’re going to the mattresses on this boys. Finally we have gotten our chance to take complete control of the civil justice system. I want to thank whoever’s responsible for this pandemic. Take that message to your boss, Agent Orange. We could not be more grateful.
And remember, if we are ever pinched for what we did here, just lie. Tex, can you be sure to delete this recording before anyone tweets about it.
Here’s a little ditty in honor of (and with apologies to!) the brilliant Lin-Manuel Miranda’s Cabinet Battle #2 from Hamilton, which of course, everyone can now catch on Disney Plus!
Our inspiration? Yesterday's Wall Street Journalarticle outlining how Senator Mitch McConnell plans to try to hold hostage desperately needed federal funds by demanding brutal limits on the legal rights of all Americans. His ideas include legal immunity for bad actors whose workplaces are unsafe, massive federal “tort reform” like caps on damages and other limits on the power of local juries, and dumping all injury and medical malpractice cases into federal courts – the very courts he is now furiously packing with extremist right-wing judges. Oh, and it's retroactive to the 1918 Spanish flu. (Only kidding - just to last December!)
Our rap battle is between James Madison, who wrote the Bill of Rights when he was in the U.S. House (he later became President), and current Senate Majority Leader Mitch McConnell, who apparently couldn’t care less about the U.S. Constitution or the American public.
Secretary Alexander Hamilton presiding:
The issue on the table, whether unsafe businesses should be accountable during a pandemic And do we reward bad actors, it seems academic That we should stay out of it and instead protect workers and consumers The decision on this matter IS subject to congressional approval But you must get the nation to concur President Madison, you have the floor, sir
President James Madison:
When we drafted the Constitution, when we were writing it We promised Americans the Seventh Amendment The right to civil jury trial, which Someone now you want to destroy Mitch We expected future Senators like you to Protect this right instead of what you wanna do To make dangerous Big Businesses unaccountable And make barriers to the courthouse practically insurmountable
Stand with the people who are suffering through this pandemic I know the U.S. Chamber is in your ear and Driven by greed want to strip people’s rights I'll remind you that they are not elected leaders They know nothing of empathy For the American people, their mountains of money, fraudulent supremacy Concern for the public, their detested members don’t have any Everything they do betrays the ideals of our nation Ooh Hey, and if ya don't know, now ya know, Mr. Hamilton
Hamilton:
Thank you, President Madison Senator McConnell, your response
McConnell:
You must be out of your Goddamn mind if you think I’m going to do one thing to anger my amoral friends They paved my way into the Senate A corrupt game, and I get the credit What’s good for the U.S. Chamber is good for me So for unsafe businesses and industries, immunity Who cares about workers and consumers low on money They’re unimportant to the nation’s recovery. Until we comply with the Chamber’s demands, I’m holding the nation hostage, Congress do as I command!
Hamilton:
Enough, Madison is right. The nation’s too ill to start this kind of fight We need to protect people and the Constitution both I seem to recall that we all took an oath The people need confidence That bad actors will be accountable And that being forced back to work Won’t make their life struggles compoundable It's a little disquieting you would let corporations blind you to reality Mitch
McConnell: Sir
Madison:
Draft a bill that helps the public Did you forget your duty?
McConnell: What
Madison: It’s not about cruelty You accumulate power while the nation’s infectious And in our hour of need, you’re nothing but reckless Someone oughta remind you
McConnell: What
Madison: You're nothing without the U.S. Chamber behind you Mitch Their lobbyists are calling
Confused mixed messaging should be America’s top motto as we try to live (emphasis on that word) through a lethal pandemic. Trump pushed drugs that are harmful to COVID patients, according to his own FDA. Politicians in states now seeing terrible virus surges, like Texas, are refusing to tell people to wear masks even though mayors are begging for this - since masks clearly work. But confusion reigns. Just check out a recent The View, when all hell broke loose over discussion about the safety differences between indoor and outdoor events.
With this in mind, welcome to the latest edition of the Medical Liability Monitor (MML), a $500/year medical malpractice insurance trade publication. In service of pushing the agenda of insurers while at the same time negating it, this is confused mixed messaging at its best.
The agenda, to put it simply, is to price gouge doctors with unnecessary rate hikes and blame patients who are negligently injured and go to court. Before the pandemic hit, the industry was already talking about hitting doctors with premium hikes and blaming lawsuits for this, even though there had been no jump in claims, no trends at all in that direction, and huge industry profits. (See this report.)
Now that we are a few months into a global pandemic, most of us have adjusted to entirely different realities. For example, almost no one other than COVID-19 patients have been interacting with the health care system. And the legal rights of COVID patients who were negligently treated have been eliminated by “emergency” legislation or executive order in half the states.
If you read some of the nonsense coming out of the insurance industry, however, you might never know that. For example, the headline story in MML’s June 2020 issue, "A.M. Best Maintains Negative Outlook On MPL Segment For 2020, COVID-19 Outbreak Exacerbating Challenges For Insurers," is basically a list of greatest hit complaints about “deterioration in underwriting results” and “dim prospects for the segment's profitability” due to things like the “surge of litigation” from the pandemic.
But keep reading. As to that litigation surge, they also write: “As of May 7, 2020, eight COVID-19-related medical malpractice lawsuits have been filed across the U.S., and more are likely to follow.” Eight. And no they are not. There are almost no COVID-related medical malpractice cases according to those tracking this.
And then there are other articles to note in that same MML edition. Here is one called, “Almost 55% Fewer Americans Sought Hospital Care In March-April, Driving A Clinical And Financial Crisis In U.S. Healthcare,” with MML reporting:
The analysis reveals that, across all service lines, and in every region of the country, there was an average 54.5% decrease in the number of unique patients who sought care in a hospital setting. The sharp drop in encounters is linked to the cancellation of elective surgeries during this time period.
Surgeries are an interesting benchmark. There are about 400,000 preventable surgical errors each year in the United States, no doubt some of which lead to insurance claims. But as MML reports, due to COVID,
[T]here were significant declines in the number of hip (79% drop) and knee (99% drop) replacement surgeries as well as in spinal fusions (81% drop) and repair of fractures (38% drop). Coronary stents (44%drop) and diagnostic catheterization (65% drop) also saw significant declines. Overall diagnostic volume declined by 60%.
No procedures, no preventable errors, no insurance claims. Some state insurance departments have figured that out, as MML also wrote this article: “New Jersey Demands Premium Refunds, California Expands Its Refund Order.” They report:
New Jersey Department of Banking & Insurance last month issued Bulletin No. 20-22, which orders the state's insurance companies to make a partial premium refund or other adjustment for certain specified lines of insurance that have experienced a reduction in loss exposure due to the COVID-19 pandemic [including medical malpractice insurance].
Similarly in California, Commissioner Ricardo Lara is “requiring insurance companies to return partial insurance premiums to consumers and businesses amid the ongoing COVID-19 pandemic” including medical malpractice premiums.
So thanks MML. You’ve certainly help clear all this up!
Here’s an interesting factoid: 70% of insurance industry employees have attended “on-line happy hours” since the pandemic’s start – more than just about any other group in America. Honestly, if I worked in a morally bankrupt industry trying to take advantage of a lethal pandemic, economic collapse and civil unrest, I might turn to alcohol too.
Actually, I have found that drinking helps get through the infinite number of online insurance industry webinars that I’ve listened to lately, where representatives try to explain the importance of exploiting these multiple crises. If there is one thing these companies know how to do, it’s holding onto money. In fact, the property/casualty insurance industry has stored away so much excess profit that it now sits on more surplus than at any time in history – a record level of well over $800 billion, which doubled from 2004 to 2018, quadrupled since 1994, and has risen by more 5,000% over the past 60 years.
One of my favorite recent webinars was the May 19 presentation featuring insurance defense lawyer Ellen Greiper and James Dorion of insurance consultanting firm Willis Towers Watson, among others. They explained that while the backlog of cases due to pandemic-related court closures is, for most people, a troubling development, for insurance companies it could be a downright bonanza. In fact, it seems this is their ultimate fantasy come true. With no level playing field - in fact no playing field at all - insurance companies can finally force injured people to accept their lowball settlement offers.
A giddy Ellen Greiper put it this way: “I have had a flurry of phone calls, I would say in the last two weeks, from plaintiffs who are now willing to take that [settlement] amount I had offered before.… Those plaintiffs are realizing that they are not going to get a trial for at least two years [and they] may be out of a job now, or may be losing money that want to settle.” Echoed Mr. Dorian, “I’ve heard almost across the board from claim leaders at major insurance markets saying that they’re seeing opportunities and looking to capitalize on them where they can settle things more advantageously than they would’ve been able to a couple quarters ago.” (emphasis added).
Thank goodness for the California Department of Insurance, which is trying to get ahead of this cheating racket by sending notices to insurance companies, telling them that it is a violation of the California Unfair Practices Act to exploit the closure of the court system “by offering financially strapped claimants low settlements.”
“The department has been informed that some insurers and other persons engaged in the business of insurance in this state are unfairly taking advantage of the COVID-19 crisis and providing unjustifiably low settlement offers knowing financial need is high and recourse to the civil court system in the state is currently severely limited,” the notice said. “The department has also been informed that certain insurers and other persons engaged in the business of insurance in this state are lowering or failing to make settlement offers with full knowledge that, because of the reduced California court schedules, policyholders are unable to obtain prompt redress in the California court system.
“This lack of access to the California court system puts policyholders who are already in severe financial hardship at a disadvantage and vulnerable to unjust settlement practices,” it said.
Of course, low-ball settlement offers aren’t the half of it. The way this industry is trying to argue their way out of paying claims to their small business policyholders is utterly breathtaking. Take business interruption insurance, which is meant to cover business losses. Many businesses dutifully paid premiums for this coverage for years. They are now being told their policies cover neither losses due to the pandemic lockdown nor civil unrest that may have also forced businesses to close.
First, ever since the nationwide lockdown, this cash-rich industry has been insisting they owe nothing to their business customers who paid premiums to cover business interruption losses. (See our earlier post.) They say either that the fine print in policies exempts virus-related business losses entirely, or even if it doesn’t, still limits what they owe because these businesses suffered no physical damage from a virus.
Now that there is physical damage due to civil unrest, they’ve come up with new escape valves. For example, some say they will deny claims by arguing that if there are two concurrent causes for a business to be closed (i.e., pandemic and looting), they’ll only pay if the covered reason (say, looting) is the predominant cause of the shutdown. If not, they don’t have to pay a dime. And if they can’t get away with that, they’ll go the low-ball route and refuse to pay really what they owe saying essentially that since businesses are already losing money due to the virus, they are not making much anyway. That means less for insurers to restore. I mean, you could go in circles all day finding your way out of this logic. Former industry spokesperson Robert Hartwig summed up the windfall they expect over all this by saying that by refusing to pay what they owe, “The pandemic could cut industry losses from the civil unrest in half, from about $1 billion to $500 million.” Whoop di doo.
But don’t pop the champagne cork yet, Mr. Hartwig. On June 4, the Consumer Federation of America brought this whole con job to light, calling on all major insurance companies to “not take unfair advantage of a two-pronged crisis that is wreaking havoc on so many small businesses in America” and “to pledge not to deny or underpay business interruption claims resulting from riots or civil disorder from businesses also impacted by the COVID-19 pandemic.” They said,
We write to ask you to make this very simple pledge to the businesses you insure across the country:
We pledge that our insurance company will not deny business interruption claims resulting from a riot or civil disorder because a business has been shuttered as a result of the pandemic or on the basis of a previous decision to deny a business interruption claim based on a virus exclusion in our policy.
We further pledge not to reduce the amount of payment available on business interruption claims resulting from a riot or civil disorder below the amount that would have been paid prior to the pandemic.
Hopefully state insurance regulators or lawmakers will take notice and get involved. I’d like to believe the industry would do the right thing on its own, but these are the same people still obsessing over a case they lost nearly a year ago involving a grandmother and grandchildren killed in a head-on tractor-trailer crash. On top of that, they have decided that now is a great time to price-gouge their customers with rate hikes even though the industry is still sitting on record-breaking mountains of cash and claims have dropped due to greatly-reduced accident frequency.
But maybe instead, they’ll decide to treat their customers fairly, act honestly, and do the right thing. Maybe they’ll try to restore their reputation and no longer be one of the most detested industries in America. Maybe they will step up and help this country at a time of multiple crises instead of finding ways to hurt us…
Naaaaaaaahhh! (Video below in honor of J. Robert Hunter.)
Well that didn’t take long. Our last PopTort, Immunity Madness, focused on the push to immunize the nursing home industry from liability, removing the financial incentive for nursing home owners – including for-profit companies – to maintain safety. No sooner did we post this than Big Business lobbyists started pushing hard to immunize all unsafe businesses, with Senate Majority Leader Mitch McConnell demanding that the next federal stimulus bill contain complete immunity for negligent companies. But his “red line,” as he called it, is now being called a “pipe dream.” (Malaphor alert!)
Starting with nursing homes, a New York Times article skewered Governor Andrew Cuomo for slipping nursing industry immunity into his budget, writing,
In New York, 5,300 nursing home residents have died of Covid-19. The nursing home lobby pressed for a provision that makes it hard for their families to sue.…
Advocates for nursing home residents said there were three longstanding safeguards against bad homes: family members who frequently visit; regular inspections by government regulators; and, as a last resort, lawsuits that can hold negligent homes accountable. But families can no longer visit. Regulators have largely stopped inspecting.
“All of the systems there to protect people are gone,” said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. “To me, the combination — rules are waived, protections are waived, nobody is going in to check. And now immunity? That is a lethal combination.”
As if that weren’t enough, Nils Lofgren, E Street Band guitarist for New Jersey’s “pre-eminent hero,” came to realize that his neglected and infected mother-in-law was in a facility that had also been granted immunity by New Jersey’s Governor. Not giving up, he said,
We’re just horrified that people’s first reaction is, ‘Well we’re making a lot of money, but now let’s make sure we’re not liable for what we promised to do, in writing’.…Don’t forget, they look you in the eye and say your loved one will be cared for.… It’s unconscionable and immoral and disgusting.…It’s like their true colors are coming out, and I hope we can hold them accountable.
Editorials in otherstates started popping up urging lawmakers not to grant nursing home immunity.
Then in Utah, which actually did go the next step and grant immunity to unsafe businesses, the impact of rewarding bad actors with immunity quickly became pretty obvious:
Nearly half of the employees of a Utah County business tested positive for COVID-19 after the business instructed employees to not follow quarantine guidelines and required staff who had tested positive to report to work, according to a written statement from county executives.
The statement, which was released Monday evening and was signed by Utah County Commissioners Tanner Ainge, Bill Lee and Nathan Ivie and the mayors of each city in the county, said that 48% of employees of the unnamed business tested positive for COVID-19.
Then, the Republican-led U.S. Senate Judiciary Committee held a hearing on the immunity issue. But rather than providing a forum to discuss McConnell’s “red line,” everyone rather chose to emphasize the far more urgent need for clear, science-based, and enforceable reopening guidelines. If that were done, liability – a red herring issue anyway - would take care of itself.
Unfortunately, so far all we have seen from the Trump administration is a politicized guidelines process, resulting in weak and biased guidelines. Even the CDC has been forced to step back from its public health recommendations.
It also appears that the nursing home immunity issue was a bit of a bellwether, showing both the tragic public health impact and the potential political cost for politicians thinking about business immunity. In fact, when the issue of business immunity came up at Cuomo’s press conference last week, he punted to Congress and fell back on the message made clear at the Senate hearing: businesses should just comply with the regs.
Q: if businesses start to reopen, is there liability if there is an outbreak and should that we waived?
Cuomo: There is federal legislation now pending that is going to deal with this liability issue all across the board but it is a big question. If I’m advising the business owners, I say make sure you take all the required guidance and you follow the guidance. And the guidance is quite specific. So I would urge that they all do that.
Mitch McConnell, you’re gonna lose on this. Move on.
Frontline health care workers - our indefatigable, exhusted, terrified, sick and dying heroes - are dealing with a mind-boggling number of crises that are making their lives hell, all of which could have been prevented or at least minimized had the federal government not wasted months.
Between trying to solve multiple health care crises and dealing with an economic collapse, lawmakers have more than enough to do right now without being burdened with lobbyist demands over pretend problems.
Here’s a pretend problem: COVID-19 patients suing front line workers for medical malpractice. No one’s doing that. Yet you would never know it by reading the overly anxious recent letter to Congress from the “Health Care Coalition on Liability and Access,” a coalition of medical and insurance lobbies whose entire agenda is to push laws that strip patients of legal rights. They claim that the “threat” of medical malpractice lawsuits “remains hanging over their heads like a sword of Damocles.” Really? Watch last night's 60 Minutes about how U.S. doctors and nurses are "risking their lives without the same protective gear many of their counterparts around the world have," and tell me that lawsuits are the problem. In fact, what a preposterous thing to say about any sick and dying COVID-19 patient - far too many of whom are frontline health care workers themselves!
Even in normal times, almost no one sues for medical malpractice even though they have a legitimate case. (See plenty of studies supporting this fact in the Center for Justice & Democracy’s medical malpractice briefing book.) But now, in the midst of a pandemic caused by a virus with no medical cure, exacerbated by equipment shortages that the health care system did not create, this whole issue is a red herring. As any lawyer who practices in this field will tell you, the standard of care, and what the law reasonably expects of health care professionals in an emergency, is very different than normal times.
Some might say “well, if there aren’t any lawsuits against frontline workers, what’s the harm in immunizing them”? Perhaps there isn’t. But let’s be clear what a law like this means. First, it means Congress would be asking sick and dying patients to give up Constitutionally-protected rights. Taking away Constitutional rights should never been done lightly even in an emergency. Perhaps especially in an emergency. And it’s not just sick patients asked to sacrifice here. States would also be relinquishing authority to decide how to handle this in their state – a mess of a situation that the federal government has otherwise chosen to largely dump on them. Just a wild guess, but of all the many things states need help with right now, preempting their tort law isn't on the list.
Second, the concern about overreach is real. Take a look at some COVID-related state immunity statutes that have already quickly passed, seemingly without a second thought. Some of these laws go far beyond protecting front line health care workers. For example, New York’s law, as well some laws in other states like Illinois, immunizes nursing homes. Some of these homes are run by negligent for-profit chains. Elderly nursing home residents are probably the single most vulnerable population in a state, virtual sitting ducks for this virus.
Yet these residents, who depend on nursing home competence for their literal survival, are now suffering terribly in this pandemic. Clearly, negligent corporate owners should be on the hook for lethal, preventable failures, as described in this Washington State case against Tennessee-based Life Care Centers of America Inc., “among the largest players in U.S. nursing home care, with more than 200 senior-living centers in 28 states.”
In this case, “Debbie de los Angeles, whose mother Twilla Morin, 85, died on March 4 at the Life Care Center in Kirkland, Washington of COVID-19” is suing because “the company concealed vital facts about the outbreak before her mother died.” Her attorney says, “his client strongly suspects the company knew more about a potential coronavirus outbreak” before it admitted to it. “My client filed a lawsuit to demand answers to important questions,” he said.
Perhaps not surprisingly, in Florida, a state with one of the largest age 65+ populations in the country, the nursing home industry is begging for immunity in a letter sent to Governor “Let-‘Em-Party” DeSantis last month.
Brian Lee, executive director of Families For Better Care, a non-profit group advocating for nursing home residents, said the letter was the equivalent of "asking for forgiveness in advance."
"It just got my blood boiling. I was shocked by the temerity of the industry to ask for blanket immunity from lawsuits… and to do it during the middle of this crisis. It’s appalling, and it’s a total slap in the face of families," Lee said. "All of their focus should be on saving our families lives, but it shows that, at the end of the day, they care more about their own protections. It's gross."…
A recent USA TODAY analysis of federal inspection data found that a majority of U.S. nursing homes (75%) have been cited for failing to properly monitor and control infections in the last three years – a higher proportion than previously known.
Compared to virtually any other population in America, nursing home residents are the most fragile and at-risk for COVID-19. Whether it’s Congress or the states, the very last thing we should be doing is removing the nursing home industry’s financial incentive to maintain safety for these residents. And when it comes to other kinds of immunity requests, remember that health care and insurance industry lobbyists don’t always tell the truth. If nothing else, we should be able to agree on that.
ANONYMOUS: So here’s the problem. People think we owe them something.
THERAPIST: Well isn’t that your job? To pay claims? Or, as I’ve seen you guys put it, to be “on our side,” a “good neighbor,” keeping us in “good hands.”
ANONYMOUS: Hell no that’s just the TV ads. Our job is to collect and pocket money from our policyholders at the highest rate state regulators will allow – and let’s face it, most state insurance departments do nothing when we price-gouge policyholders. Then we get to sit on that money and pocket the interest without returning any of it to our customers, and then fight anyone who tries to force us to pay claims that we owe. And until now, we’ve done spectacularly well with that kind of business model! In fact, going into this global health crisis, we had amassed mind-boggling, record-breaking surpluses. Over $800 billion!
But now this crisis threatens all of that. Everything’s going haywire. I’m scared.
THERAPIST: Why are you scared?
ANONYMOUS: Well, I feel we're in some danger because people don’t like us very much during times of national crises, which I don’t get. Sure, after Hurricane Katrina we did everything we could to escape our responsibility to homeowners, many of whom were destitute. But how was it our problem that our customers were hungry, exhausted, traumatized and homeless? We had every right to fight them even when we were wrong. And after 9/11, our response was to march into the White House demanding a federal bailout that we absolutely didn’t need, and which keeps getting renewed. But we were just asking to loot the federal treasury like every other industry that had dumped money on politicians over manyyears.
And now, the $800 billion in excess profit that took decades for us to stockpile is threatened by businesses who think we owe them when we went out of our way to exempt ourselves from virus-related losses.
Now granted, we may have missed a few of those policies and forgot to exempt viruses here and there, but that was just an oversight on our part and we shouldn’t be punished for it, right? Businesses need to suck it up and stop suing us.
Plus, those mighty consumer groups are writing to insurance commissioners saying the windfall we are about to receive on auto insurance (since no one's driving) should be returned to policyholders! Check out this letter from the Consumer Federation of America and the Center for Economic Justice, calling for “lower auto insurance premiums for people who have stopped driving and lower commercial premiums for businesses that have dramatically curtailed their business and limited their exposure.” What kind of game is this?
And speaking of rates, when this pandemic began, we had already started raising rates on our business customers using our go-to never-fail excuse – U.S. juries and their terrible verdicts. In fact, we created our own lingo for this problem – social inflation. I know, there are compelling reasons why juries decide as they do and for decades we’ve complained about them anyway. And only 2% of cases end up before juries and we win most of them. But blaming juries has always worked whenever we’ve wanted to jack up rates. So we had to keep up the rhetoric.
Yet now, the entire civil jury system is on hold and American jurors themselves are sick and dying of a pandemic. It seems suddenly our entire PR effort has become, what’s a good word, insulting? Immoral? Tone deaf? Depraved? Un-American? We are being treated so unfairly.
THERAPIST. Well is there any good news you can focus on instead?
ANONYMOUS: Hmm, let’s see. Well there is something. Seems like Congress is interested in expanding the terrorist claims backstop to cover pandemic claims. That means if these claims cut too deeply into our mountains of cash, taxpayers will bail us out. That seems more than appropriate, especially if businesses start winning their cases or, god forbid, anyone forces us to retroactively pay claims.
And maybe Congress will even set up a business victim compensation fund like they did for families after 9/11. That would be extra sweet. They really should because if they put us in charge of distributing money by deciding which claims are valid, we can promise that no one will get anything! It's a win-win! (I just hope Chairwoman Velazquez took care of this before she got coronavirus.)
THERAPIST: It sound like you’ll be just fine even though no one else will. But why don’t you contact me again in a week to continue our session so I can make sure you’re ok.
ANONYMOUS: Probably not. My insurance won’t cover it.
BUT PLEASE DO NOT COME TO SCHOOL! Safety first. For now, all Pop Quizzes are entirely online!
1. Let’s start with emergency rooms. Even before they were stressed with the coronavirus, they had problems. Of medical malpractice claims caused by emergency room errors, how many resulted in death?
5%
10%
25%
More than 33%
That would be “d. “After analyzing over 1,300 closed medical malpractice claims filed against hospitals between 2014 and 2018 over emergency department care, the insurance provider [Coverys] found that 61 percent of claims involved serious injury, with more than one-third resulting in death.” See more here.
2. How many bad surgical outcomes each year are due to preventable human error?
1,000
10,000
50,000
400,000
The answer is “d.” According to a 2019 JAMA study, ‘There are approximately 17 million surgical procedures performed in the United States each year…. If the adverse outcome rate is about 5 percent, and half of those are due to human error, as seen in our cohort and reported in other studies, it would mean that about 400,000 adverse outcomes could be prevented each year.’”
3. There is an impending shortage of oncologists in America today. True or False: This shortage is happening because medical malpractice lawsuits and insurance rates are driving doctors out of the profession.
False. Reasons for this shortage have nothing to do with liability. Data from the Centers for Medicare & Medicaid Services, board certification and self-reported information from over 18,000 full-time, board-certified oncologists show that “an imminent wave of retiring oncologists,” coupled with a growing demand for cancer treatment, will cause a shortage of practitioners across the country.
4. During the last insurance crisis (2002-2005) when doctors were begin price-gouged with skyrocketing insurance rates and insurers blamed claims and lawsuits, insurers were actually overstating their losses by what annual percentage?
0 percent – insurers were being honest about their losses
10 percent
25 percent
33 percent
Yup, the answer is “d.” According to the new study from Consumer Federation of America and Center for Justice & Democracy, How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation, “New evidence shows clearly that doctors were price-gouged during the last hard market (2002 to 2005). Doctors paid increasingly high premiums while paid claims actually dropped. Medical malpractice insurers were misrepresenting their actual losses by an incredible annual average of 33%.”
5. True or False. Over the last 20 years, while insurers saw major reductions in their losses, they reduced premiums for doctors only $1 for every $3 in reduced claims payments.
If the road to hell is paved with good intentions, one can only imagine where bad intentions send you. For the asbestos industry, it’s probably to the Western District of North Carolina.
Back in 2014, a Western District of North Carolina judge – in his first and only asbestos case – decided to reduce by 90 percent the amount Garlock Sealing Technologies owed its victims, including more than 4,000 Navy service members. Garlock was one of the world’s largest asbestos-containing gasket and packing manufacturers and had poisoned workers for many years. (See more here.)
To strip these victims of compensation, the judge made some highly irregular and incorrect rulings about how to value damages. Soon after he ruled, evidence surfaced that Garlock had “hid evidence from the bankruptcy court and presented false testimony, .... [committing] a fraud upon the court.’” And soon after that, Garlock’s case fizzled, with Garlock and its parent settling with victims for almost four times as much as the judge had ordered and completely dropping its bogus attacks on victims’ attorneys.
But the asbestos industry was still delirious with excitement over this discredited judge’s opinion. They saw in it new opportunities to scam even more dying victims, and Koch Industries stepped right up. Koch’s subsidiary, Georgia-Pacific, made asbestos-containing drywall, which poisoned hundreds of thousands of people. Rather than continuing to pay dying victims what it owed, GP divided itself in two: Company #1 kept all the assets and no liabilities, and Company #2, with no employees, no operations, and no assets, kept all the liabilities, including asbestos claims. That second company became headquartered in North Carolina. And then, in the land of Garlock, it declared bankruptcy and argued that victims who deserved full compensation – which a company like Koch could clearly afford - should get pennies on the dollar.
Other companies followed suit. For example, in January, CertainTeed cement company, which made all kinds of products that poisoned workers with asbestos (including Navy service members), similarly divided itself in two. All the assets (and none of the liabilities) were transferred to CertainTeed LLC and affiliates. All the asbestos liabilities (and none of the assets) were transferred to “DBMP,” a company with an unrecognizable name that domiciled in North Carolina. With no assets, DBMP immediately rendered itself insolvent and it filed for bankruptcy in January.
We can only hope that a judge somewhere refuses to allow a fraud like this to go on. But we do have to hand it to the asbestos industry. There seems to be no bottom to the scams they’ll devise to avoid compensating their dying victims. And when I say no bottom, I mean all the way down there. The place where flame-retardants won’t help.
All opinions expressed on this blog are those of the authors only. Any disputes should be addressed to the authors or commentators. The Pop Tort invites comment to further the debate on issues addressed, but we reserve the right to deny or remove any post or comment.
