ThePopTort

A Civil Justice Story

Today, I’m reminded of that old-timey cop film/TV show called The Naked City, which famously ended the film and each episode with the line, "There are eight million stories in the naked city. This has been one of them." That’s more or less the context for today’s PopTort. There have been millions of notable civil justice cases brought over the years. This is one of them.

Before we get into the case, let’s talk briefly about the importance of the contingency fee system (and for more on that, see this study from Center for Justice & Democracy.). This unique fee system provides those with injury or death cases, regardless of their financial means, with access to an attorney. The attorney takes a case without charging any money up front and is paid as a percentage of any successful judgement or settlement – the standard percentage being one-third.

Many state laws unfairly and arbitrarily limit these fees, which make it impossible for attorneys to take certain cases. But it is also true that sometimes, trial lawyers voluntarily reduce their fees in order to help a client obtain an better settlement. That’s according to research from Professor Herbert Kritzer, the leading academic on contingent fee representation. His work can be found in Seven Dogged Myths Concerning Contingency Fees.

For injured victims, a better settlement doesn’t always mean more money even though a smaller monetary settlement means less money for both them and their attorney. Americans often sue for reasons that have little to do with money. Many sue primarily to hold a wrongdoer accountable, forcing them to make changes to their dangerous product or unsafe practice so others don’t have to suffer. That is also why many attorneys take such important cases - to make a difference. Many examples of such cases can be found LIFESAVERS 2021, which documents and explains how lawsuits and the tort system can lead to important changes that protect us all from dangerous or illegal practices.

One area where lawsuits can be particularly important is when it comes to exposing and hopefully stopping law enforcement practices like excessive force and brutality. One such case caught our eye recently. It concerns the settlement agreed to by the family of 38-year-old Jacob Bauer, whose 2018 death at the hands of Pleasanton California law enforcement involved horrendous instances of excessive force, brutality and misconduct.

Jacob was an individual who had been sliding into severe mental illness to such an extent that his worried parents, John and Rose Bauer, took the extraordinary step of alerting local police about it – four times. Their fear was that “their son would be hurt or killed if he ever came in contact with officers. They pointed out two other mentally ill men had been killed by Pleasanton police officers in the previous two years.”

Three days after the Bauers last met with police, who told them “not to worry,” police officers killed Jacob. This occurred after an incident at a grocery store where Jacob was acting erratically. “[O]fficers handcuffed him, took him to the ground, tased him, punched him, and piled on top of him while he laid in the prone position.” He was “also restrained in a full-body wrap with a spit mask and at one point had eight officers leaning on him.”  When he screamed he couldn’t breathe, the officers essentially mocked him. Then he died.

The Bauers sued. John Bauer also began “going to City Council meetings to speak about de-escalation training for officials who interact with the mentally ill,” according to one of attorneys, Gary Gwilliam. So when Pleasanton agreed to settle the case for $5.9 million, it may be no surprise that compensation was not all the Bauers requested. Said attorney Gwilliam, “What the Bauers want is to try and make sure that this doesn’t happen again, and that their son’s life will have some meaning, that it wasn't in vain. So in the settlement agreement, the Bauer’s demanded simply that the police finally listen to them.”

According to the settlement, the virtual “listening session” must be arranged within 30 days of the settlement being signed by all parties. The Bauers will have 10 to 20 minutes to explain what they would like to see happen when Pleasanton police officers respond to a mental health crisis. Police officials will then have a chance to talk about what has changed in the department since their son's death.

“Jacob lost his life over a few broken bottles at a grocery store," Rose Bauer said in a statement. "I hope this settlement creates real changes to stop police from using excessive force against the mentally ill.”

Notably, attorney, Gwilliam, said that “he was confident they could have gotten more in the settlement but that the Bauer family preferred to secure the meeting with police.

“I want everyone to remember that his death did not happen in vain, and maybe the terrible death and the terrible grief this has caused his parents might save someone else’s life someday,” Gwilliam said in an interview Monday.”

Maybe now they’ll listen.

 

In Medical News Today, Too Few Lawsuits Means Too Many Deaths

Too many people are dying of medical malpractice, or in dangerous nursing homes, or after being implanted with unsafe medical devices - because not enough people are suing. There I said it. Not enough lawsuits. Preventable death is what happens when accountability is weakened and information stays hidden. And politicians who kowtow to the insurance and medical lobbies are mostly to blame for this. And I’m sick of it. I’m sick of whiny insurance companies, sitting on boatloads of money while they raise rates on doctors and then falsely blame injured patients who rarely file lawsuits. Yet insurers still work to take away their rights.

I was reminded of this recently as the fog of COVID health care immunity laws began to lift and articles started surfacing about the ongoing state of patient safety.

Preventable Medical Errors are Rampant

Medical harm is “so widespread, so frequent, so massive, and so continuous that it rarely makes headlines,” wrote authors Michael Saks and Stephan Landsman recently in STAT (based on their new book). Put another way,

Death by medical error or accident is the nation’s leading cause of accidental death, exceeding all other causes of accidental death combined. Medical error and accidents kill approximately as many people each month in the U.S. as Covid-19 did before vaccines became available.

How have states responded? But stripping patients of their legal rights and then looking the other way, leaving patients to die. Take Dr. Death in Texas, one of the rare cases that actually did make headlines and even more unusually, has received Hollywood attention. Billy Corriher wrote in Facing South: 

"Dr. Death," a new drama on NBC's Peacock that was inspired by a true story, offers a disturbing look at the life of an incompetent Texas neurosurgeon named Dr. Christopher Duntsch, played by Joshua Jackson, and the patients he maimed.…

In the sixth episode, the show lays out how Texas law makes it nearly impossible to sue health care providers, meaning there's little accountability for negligent care or hiring decisions. A widower named Earle Burke, played by Grainger Hines, says that "no lawyer would take up the case" against Duntsch because of Texas' "tort reform" laws that make it harder to sue negligent doctors. 

Nearly half of all medical errors are preventable. In other words, a large chunk of patients (44%) would have a case if they could – or wanted to - go through the time, trouble and expense of going court. Yet almost no one sues. If they do decide to go to court, it’s extremely hard for patients to win these cases. And even if they do win, injured patients are generally severely undercompensated. (Lot’s of studies about this here.) And to top it all off, medical lobby groups have such control over public officials that even the worst, most incompetent physicians practice with impunity. 

Nursing Home Infection Controls Are STILL Bad

Could there be anything more tragic than the lack of COVID (and other) infection controls in nursing homes? Yet deadly COVID is still a problem as too many staff members remain unvaccinated. If only a strong civil justice system were available to ensure some accountability for nursing home negligence. But between dual “get out of jail free” cards of (COVID-related) legal immunity laws passed in most states and forced arbitration clauses used by most nursing homes, patients and families are faced with enormous legal hurdles if they try to hold a nursing home accountable for making these frail residents live in lethal Petri dishes.

Implanted Medical Devices Are A Horror Show

A new ProPublica article exposes a problem that actually is shockingly common: defective implanted heart devices that are allowed by the Food and Drug Administration (FDA) to go horribly wrong, and leaving patients (and surviving families) with neither medical nor legal recourse. This particular piece is about the HeartWare Ventricular Assist Device, or HVAD. As ProPublica writes,

The HVAD was implanted into more than 19,000 patients, the majority of whom got it after the FDA found in 2014 that the device didn’t meet federal standards. By the end of last year, the agency had received more than 3,000 reports of patient deaths that may have been caused or contributed to by the device.

But the FDA repeatedly failed to insist that the manufacturers, HeartWare and Medtronix, fix the devices’ problems. Even worse,

Patients with HVADs have little choice but to hope the devices keep working: The surgery to remove HVADs is so risky that both Medtronic and the FDA advise against it. The device is meant to be left in place until its wearer gets a heart transplant. Or dies.….

There are [] few documents available in state courts about faulty products, because of restrictions on lawsuits related to medical devices. The restrictions date back to a 2008 Supreme Court decision in a case against Medtronic. The court found that U.S. law bars patients and their survivors from suing device makers in state court, essentially because their products go through such a rigorous FDA approval process.

Congress has still not fixed the law to provide patients with defective heart implants some opportunity to go to court, get compensated, and hold medical device companies accountable in ways the FDA has so miserably failed to do. But sadly I suspect we may be waiting a long time.

Vaccine Hesitancy’s Odd Line in the Sand

I was listening to a news report the other day about the reasons for COVID vaccine hesitancy and one individual articulated an oft-cited concern: “I don’t want to put something in my body that the FDA has, so far, only approved for emergency use.” Some folks seem to feel this way even though the FDA approved emergency use based on clinical trials involving tens of thousands of people and nearly everyone with a medical degree is begging people to get it, having taken it themselves. Many everyday people apparently think that despite this, it’s their best medical judgement (sadly based on lethally- bad information) to risk serious illness and death to themselves and others in order to wait for the venerated seal of full FDA approval.

And then I thought, “should we tell them”?

Most of the drugs and supplements that we all ingest every single day have never gone through anything close to the clinical pre-market emergency approval process that the COVID vaccine already has. Here  are some examples:

Generic drugs. More than 80 percent of the drugs we take are generic. NONE have gone through any sort of clinical trial or pre-market approval process. These drugs are in the marketplace because they are supposed to be “bioequivalent” to brand name drugs, which have been FDA-approved. But despite what is commonly believed, generic drugs often do not match their brand name counterparts. They may contain some lower quality ingredients, which can affect a drug’s absorption into the bloodstream. The FDA sometimes approves a strength or dosage that hasn’t been tested at all. Even small design differences between generic and brand-name drugs can have health consequences. And to top it all off, we have no legal recourse if injured due to a generic drug’s unsafe design or labeling. (And that is thanks to the U.S. Supreme Court ruling against patients with horrendous generic drug injuries.)

Medical devices. As we wrote in 2012,

The FDA has a special rule –510(k) of the Federal Food, Drug, and Cosmetic Act – whereby drugs and devices that are “substantially equivalent” to a device already on the market are not required to go through more rigorous FDA approval.  This allows companies to market dangerous products for uses never really “approved” by the FDA, yet with the stamp of FDA approval!  [For example], the FDA approved surgical meshes for procedures like abdominal surgery.  But [Johnson & Johnson] began marketing them for use in a women’s vaginal area, treating problems like incontinence.  Subsequently, hundreds of women became severely injured and some died as the meshes began disintegrating, growing into tissue and becoming impossible to remove.  … The FDA [much later said] that the company should not have used 510(k) to fastrack these.  Not exactly quick work by the agency.

Supplements. Who here takes vitamins? Or any other kind of herbal or dietary supplement? The FDA doesn’t test any of them before they hit the market. The agency doesn’t even consider them to be “drugs.” As the American Cancer Society writes,

[Supplement] manufacturers are not required to test new ingredients or supplements in clinical trials, which would help find risks and potential interactions with drugs or other substances. The [law] gives the FDA permission to stop a company from making a dietary supplement, but only when the FDA proves that the product poses a significant risk to the health of Americans. This means they are found unsafe only after they cause harm. This is the reverse of the way prescription and non-prescription drugs are handled.

As we wrote in 2013:

Dr. David A. Baker, a professor of obstetrics, gynecology and reproductive medicine who has studied supplements, “called the state of supplement regulation ‘the Wild West,’ and said most consumers had no idea how few safeguards were in place. ‘If you had a child who was sick and 3 out of 10 penicillin pills were fake, everybody would be up in arms.  But it’s O.K. to buy a supplement where 3 out of 10 pills are fake. I don’t understand it. Why does this industry get away with that?’”

Of course, it shouldn’t. The point is, however, that the COVID vaccines are already far more regulated, and proven safe and effective, than nearly any other drug, device or supplement that we put in our bodies today. Plus unlike generic drugs, medical devices and dietary supplements, COVID vaccines have the eyes of the world on them - and they’re working. Not to mention the fact that more than 96 percent of doctors have already been vaccinated, fulling trusting their safety. It’s hard to feel safer than that.

Forced Arbitration: One Step Up, Two Steps Back

There were two big Amazon Twitter stories this week. The biggest one was about billionaire Jeff Bezos’ tone-deaf quote rubbing salt into the wounds of low wage Amazon workers forced to work in horrible conditions often without health insurance as the company pays no taxes. Bezos thanked these workers for paying him to play astronaut on a phallic rocket ship. (Some people were reminded of Gil Scott-Heron’s “Whitey on the Moon,” which you must watch.)

The second story received slightly less buzz so we thought we’d talk about that one today. This week, Amazon customers began receiving an email about their right to go to court against Amazon. I’m sure most people were scratching their heads about this, wondering, “Isn’t that already our right?” Of course it should be, but companies like Amazon have taken away that right in fine print found in online contracts that everyone “agrees to.” As if.

Replacing that right is what’s known as “forced arbitration,” which many companies use and requires that all disputes be resolved in individual, private, secret, company-controlled, rigged systems. By also preventing people from joining with others in class actions, the real goal and impact of these clauses is to make claims disappear, allowing companies to escape legal accountability for what they did wrong.

Woops, can you say “backfire?” Amazon decided to give up its “forced arbitration” requirement and allow itself to be sued in court. Why?  Because they were outsmarted. Specifically, rather than dropping claims, more than 75,000 Echo users, who were very angry that these Alexa devices were recording them without permission, filed for arbitration, hitting Amazon with a bill for “tens of millions of dollars in filing fees.”

But what Amazon giveth, it immediately taketh away. While Amazon has now agreed to allow itself to be sued in open court - as the Framers of our Constitution would have expected - it will not allow itself to be judged by juries - as the Framers would also have expected. We know they would have expected this because they enshrined the right to civil jury trial in the Bill of Rights (i.e., the Seventh Amendment). “We each waive any right to a jury trial,” Amazon customers supposedly now “agree to.” In other words, “eat dirt, James Madison.”

Amazon remains terrified of being judged by juries, i.e. the American public, but they are hardly alone. Take Airbnb, for example, which hasn’t even taken the steps that Amazon has and continues forcing people into arbitration. Read about the tragic story of a father whose daughter was sexually assaulted and murdered in a Mexican Airbnb rental “with no answers about how she died and no one arrested.”

The company sent them a check, but the family cannot sue to get any answers. As Bloomberg reported, “There’s no legal precedent for Airbnb’s potential liability for crimes that occur inside its listings, largely because the company’s terms of service pushes disputes with users into confidential arbitration.”

There are two important bills in Congress to stop companies from demanding that harmed customers agree to rigged arbitration before they are even allowed to use their service. The first one, the broad Forced Arbitration Injustice Repeal Act or the FAIR Act, has nearly 200 sponsors in the U.S. House of Representatives and 39 Senators. And there’s another bill, just introduced, that would deal with sexual assaults. It is bi-partisan, and it’s called the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act. Let’s get behind both of these important bills (and also, stop attacking juries please).

Welcome to Insurance Isle!

There is something particularly unseemly in how the property/casualty insurance industry has used its power to get rich off the COVID crisis. Not that insurance industry observers would expect anything less. This is an industry that never saw a crisis it didn’t try to exploit. In fact, after 9/11, the Center for Justice & Democracy wrote a whole paper on this very topic, called Shakedown: How the Insurance Industry Exploits a Nation in Times of Crisis. Pretty much a running theme over here.

Before COVID, the industry was in the early stages of deceiving businesses, consumers, and regulators about its financial condition in preparation for creating a national insurance crisis of skyrocketing rates. This, mind you, was while it was sitting on more cash than at any time in its history. “Juries were out of control again so your premiums have to go up,” the industry started saying. Juries, victims, and lawyers were suddenly creating an urgent need for insurers to price-gouge. (See a complete explanation here.)  

This is the same script they have used for the last 40 plus years to justify each prior liability insurance crisis, and what many experienced as a volcanic eruption in insurance rates. There have been three such "crises" before now.

It's easy to see a familiar yet bizarre pattern. To buy the industry's position, one would have to accept the notion that lawyers and juries were particularly aggressive in the mid-1970s (when rates shot up the first time), then stopped for a decade, then became aggressive for three years in the mid-1980s (when rates shot up a second time), then stopped for 13 years, then got all aggressive again from 2002-2006 (when rates shot up a third time), then they stopped for 13 years, and now, 13 years later, are aggressive again. Do they think we're that dumb? Who can't see an insurance industry cycle at work, which by the way is well recognized by the industry but they don't talk about it much. And to be clear, this cycle has nothing to do with claims or payouts. Actual data show those have remained stable throughout. (Why this cycle happens is all explained here.) But data and facts never stops the industry from trying to bamboozle the public. So in 2019, rate hikes accompanied by a new anti-jury crusade, began again.

But then COVID hit. Courthouses shut down. Jury trials stopped. People stopped driving, People drastically cut down on non-essential medical care, like elective surgeries, while at the same time most states passed laws immunizing hospitals and nursing homes from liability. Whoops! Now who’s gonna believe that backlogged juries, non-existent victims and lawyers who can’t get their cases heard, are driving rate hikes? Pile onto that the fact that insurers, who had already put virus exclusions in many commercial policies, indeed refused to pay virus-related business interruption claims and fought businesses in court while still marching down to Washington demanding a bailout (just in case they needed it) much like they did after 9/11.

Turns out, an insurance bailout isn’t what anyone needed from government officials. What was needed was someone to look at their books. Not only did they not refund money as they should have, they kept raising premiums while everywhere, claims dropped. Their profits doubled, their surplus (the extra money over and above what’s need to pay claims) ballooned to nearly 1 trillion dollars. Now it looks like they even hid profits in bloated reserves. Yet they are STILL raising rates.

And it’s not like we and other groups didn’t scream that this was exactly what was going to happen. (Can state regulators please start taking consumer groups seriously?)

Ha, I do sound a bit angry but actually I’m over it. I’ve decided it’s time reconsider this industry with the level of mockery it so richly – and I mean RICH-ly deserves. With humor. These people are a comedy show.

So in keeping with that theme, we present to you Insurance Isle, the latest from the Center for Justice & Democracy, who say: 

[We] decided to offer Insurance Industry Fat Cats a “safe” place to go so they can enjoy their outlandish profits in peace while commiserating with other Fat Cats.

But don’t worry, our extensive sourcing puts the lie to everything they say. And our funny illustrations help make the point.

So spend some time with us on Insurance Isle, where you can "Relax at Profit Beach." "Hoard Your Money at Pirate's Cove." "Shop on Spin Boulevard." "Chill While Our PR Experts Do the Work (Social Inflation Anyone?)." "Spend Hours at Whiner's Warf." Learn how auto insurance companies worked the pandemic for maximum greed, er, bliss. It’s sure to put a smile on your face – unless, of course, you’re an insurance company.

Download the brochure - and learn all about Insurance Isle here.

Civil Juries: Crushed by COVID

There a Radiohead lyric that goes “Let down and hanging around; Crushed like a bug in the ground.” I know there are a lot of ways to describe what happened to the civil jury system this past year but for some reason, squishing a fallen insect comes to mind.

As many have written, insects are an incredibly important part of our ecosystem. The “the lever pullers of the world,” some say. Hardly a nuisance, and we’d be dead without them. 

Similarly, civil jury trials – especially those deciding cases by people who have been wrongfully harmed - are a crucial part of our justice system. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.  

But over life of the nation, the number of civil jury trials dropped precipitously. Even before the pandemic hit, for example, juries resolved, on average, less than 1 percent of state civil cases as well as state tort cases. The reasons for this, as described by Shari Seidman Diamond and Jessica M. Salerno in their 2020 law article, “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges,” include both enactment of “tort reform” laws that limit the power and authority of juries, and forced arbitration clauses that demolish juries altogether:

For civil cases, 61.6% of respondents who practiced in jurisdictions with damage caps… said they played a medium or large role in making jury trials less appealing.…

Fifty-two percent of judges and attorneys also pointed to mandatory arbitration as having helped drive down the frequency of jury trials.

Many courts offer voluntary arbitration, overseen by a neutral mediator who is an expert in the pertinent legal issue. A growing number of companies have begun making this process mandatory for employees and consumers by including binding arbitration clauses in contracts.

“On average, workers who pursue legal claims through arbitration are less likely to prevail, and they receive smaller awards than those who pursue employment claims in court,” wrote Diamond and Salerno.

Already at a low point before COVID, now they’ve nearly or completely disappeared in many places. In an op ed in Maine’s Press Herald, Benjamin Gideon recently wrote:

When the pandemic struck last spring, Maine courts abruptly stopped conducting jury trials. It was an understandable measure to protect judges, litigants and jurors. At that time, no one yet knew how to adapt to the pandemic.

Less understandably, more than a year later, our civil justice system remains shuttered.…

Not only has our judiciary failed to implement strategies to resume civil (and for the most part, criminal) jury trials, our Supreme Judicial Court issued an order prohibiting trial judges from using their own ingenuity to find a way to conduct civil jury trials.

Now, as our courts are finally attempting to reopen, they face a dizzying backlog of criminal cases, which, the judiciary says, prevents them from holding civil jury trials. …

What’s more, insurance companies have done nothing but take advantage of this situation by refusing to settle cases. In New York, for example,  

Because there are no trials — except for a select few cases that went to trial last fall — insurance companies and defendants have little reason to settle beforehand, a common way to avoid juries awarding more money, lawyers say.

Insurance companies and defendants have instead dragged their feet and refused to pay out in some cases, which could force people to settle for less if they’re desperate for cash, according to lawyers in the field.

“The delay of jury trials brought on by COVID-19 has exacerbated what was already an untenable situation for New Yorkers seeking to exercise their right to civil justice,” said state Democratic Sen. Brian Benjamin.

As Mr. Gideon writes, “I am concerned that we will come to accept the misguided notion that the right to a civil jury trial is a luxury rather than a basic right established by our constitution.”  Yep, James Madison would be seriously bugged by that. 

Insurance: The Essential Guide to a Bewildering Industry

Are you sick and tired of the property/casualty insurance industry? What I mean is, are you tired of the P/C insurance industry using endless amount of confusing data that no understands, and then asserting its “superior knowledge” of insurance to make all kinds of demands on the rest of us? Like raising our rates, denying our claims, or lobbying for laws that strip us of our legal rights, all while blaming everyone but themselves?

Well, the Center for Justice & Democracy says, “no more!” CJ&D has figured out a way to help explain this industry while keeping you appropriately entertained because, let’s face it, insurance sometimes can be a little boring. But not to CJ&D. They’ve developed a fun (yep, very fun) new manual called, Insurance: The Essential Guide to a Bewildering Industry. Or just go to InsuranceFatCat.com for a look.

This manual is fully illustrated (by Austin's Jason Stout) using a very appropriate Fat Cat motif, and includes sections like, “Crying All the Way to the Bank,” “Hiding Wealth with Tricks and Loopholes,” “Anyone Else Would Go to Jail,” and “When Words Aren’t What They Are.”

It is easily shareable both as a printed document and online. So spread the fun. And don't take their *$%# anymore.

PopTort PopQuiz, Home Edition

Kids, I know many of you are still working from home and have had it about up to here with remote learning by now. So let's try something fun: a new PopTort PopQuiz! Thanks to the Center for Justice & Democracy's new updated medical malpractice briefing book, we have all kinds of new info about what’s going on in the world of unsafe health care. (Yikes!) Enjoy!

1. True or False: Researchers who extensively reviewed physician surveys, clinical scenario studies and case data analyses found a good deal of support for the notion that the practice of “defensive medicine” (doing costly and unnecessary tests and procedures for fear of being sued) pervades the American healthcare system.

Answer: False. Rather than a good deal or even a fair amount of support, they found “little support” for this notion. They added, “Consequently, reforms of tort law are unable to make much of a contribution to bringing down America’s unusually high healthcare costs.”

Nor, it turns out, will “tort reform” impact doctors’ insurance rates. That’s the conclusion of still other researchers!

2. Liability concerns are often blamed for too many C-section births in U.S. hospitals. When researchers compared the number of C-section births in military hospitals (where doctors have no liability) to those in private civilian hospitals (where doctors can be held accountable for medical negligence), they found that C-sections are:

a. 50 percent more common in civilian hospitals

b. 20 percent more common in civilian hospitals

c. 5 percent more common in civilian hospitals

d. More common in military hospitals

The answer is “d.” Researchers found: “C-sections are about 4 percent more common during the deliveries at military hospitals, compared to the times when mothers in the Military Health System deliver at civilian hospitals.”

3. The primary driver of physician shortages are (select all that apply):

a. More doctor demand due to population growth

b. More doctor demand due to an aging population

c. More doctors retiring

d. Malpractice insurance rates

e. Liability (tort) laws

Answer: If you selected a, b, or c, you would be correct. If you picked d or e, you’d be wrong. This is according to the work of the Association of American Medical Colleges, no less. 

4. Bonus Question: It’s your surgeon’s birthday! It’s a good idea to:

a. Share the celebration by having surgery that day

b. Stay clear of any treatment from your surgeon that day

c. None of this matters - what a ridiculous question

Answer: Ha, you wish it didn’t matter. The answer is “b”. Stay away. According to research, the “30-day mortality rates are approximately 23% higher for patients 65 and older who are treated on a surgeon’s birthday.” 

Mitch McConnell’s Irony?

Remember when one of the biggest controversies of the year was whether any of the situations described in Alanis Morissette’s song “Irconic” were actually ironic? Irony is not easily defined and is often mistaken for other things. So let me run a situation by you, and you tell me if it seems ironic to you.

By now, you all know the outcome of last week’s impeachment trial. Probably just as likely, you heard about Senate Minority Leader Mitch McConnell’s speech tearing into Trump even though he voted to acquit. As part of his speech, he made sure to remind everyone about the importance of both criminal prosecution and civil litigation to hold Trump accountable. Most recognize that this speech was a politically-convenient way for him to justify the Senate’s failure to convict. But also, it seems ironic for him to be laying the survival of our democracy on a system that, for decades, he has made it his work to weaken or destroy … no?  

McConnell is not your average civil justice opponent. He’s the Senate’s leading “tort reformer”. We first noticed this when, in the late 1990s and early 2000s, McConnell led the fight to federalize the nation’s auto insurance system. His bill, euphemistically called the Auto Choice Reform Act, basically would have forced motorists into one of two unfair insurance systems, one of which would have deprived seriously injured victims of adequate compensation.  

From the mid-1990s through the 2000s, Sen. McConnell repeatedly introduced his “McConnell Amendment” to health care bills. This amendment proposed that Congress federally take over all 50 state tort systems, all for the purpose of severely limiting the rights of injured patients and nursing home victims to hold facilities, drug companies, hospitals and HMOs accountable in court.

His proposal to replace Obamacare was “tort reform.” His response to the COIVD pandemic was “tort reform.” In fact, in 2020, he blocked COVID relief legislation by insisting on broad and long-lasting corporate immunity provisions (as we covered somewhat humorously last July). Luckily, all of these failed.

So when Sen. McConnell said last week, “He didn’t get away with anything, yet. … We have civil litigation,” was he being ironic or just hypocritical?  And will he support the range of cases that are now being brought, including one just filed by House members for compensatory and punitive damages over violations of the 1871 Ku Klux Klan Act? 

Hope so. But I’m not holding my breath.

Repost: America’s New Century of Hate

We thought it was time to repost our 2015 blog about how the civil justice system can be used to dismantle hate groups. Since that time, others have weighed in on using civil litigation to deal with current circumstances. And the Center for Justice & Democracy published a study that discusses many of these earlier cases. Here's our entire 2015 post:

Just two days ago, Charles Kurzman, sociology professor at the University of North Carolina at Chapel Hill, and David Schanzer, director of the Triangle Center on Terrorism and Homeland Security at Duke University, wrote this in a New York Times op ed:

The main terrorist threat in the United States is not from violent Muslim extremists, but from right-wing extremists. Just ask the police.

In a survey we conducted with the Police Executive Research Forum last year of 382 law enforcement agencies, 74 percent reported anti-government extremism as one of the top three terrorist threats in their jurisdiction; 39 percent listed extremism connected with Al Qaeda or like-minded terrorist organizations. And only 3 percent identified the threat from Muslim extremists as severe, compared with 7 percent for anti-government and other forms of extremism.

Monitoring hate groups and right-wing extremists is one of the central missions of the Southern Poverty Law Center (SPLC), an extraordinary organization that, as we’ve noted before, has “crippled some of the country’s most notorious hate groups by suing them for murders and other violent acts committed by their members.” Just look at their current docket.  Sadly, as today’s tragic news only confirms, hate in America isn’t weakening:

Since 2000, the number of hate groups has increased by 30 percent. This surge has been fueled by anger and fear over the nation’s ailing economy, an influx of non-white immigrants, and the diminishing white majority, as symbolized by the election of the nation’s first African-American president.

These factors also are feeding a powerful resurgence of the antigovernment “Patriot” movement, which in the 1990s led to a string of domestic terrorist plots, including the Oklahoma City bombing. The number of Patriot groups, including armed militias, skyrocketed following the election of President Obama in 2008 – rising 813 percent, from 149 groups in 2008 to an all-time high of 1,360 in 2012. The number fell to 874 in 2014.

This growth in extremism has been aided by mainstream media figures and politicians who have used their platforms to legitimize false propaganda about immigrants and other minorities and spread the kind of paranoid conspiracy theories on which militia groups thrive.

Nineteen of these hate groups, “including two factions of the Ku Klux Klan and four ‘white nationalist’ organizations,” still call South Carolina home. Equally disturbing, as the SPLC notes today,"Black churches, including those in South Carolina, have been the targets of hate crimes throughout our country's history.”

Indeed, back in 1995, members of the Christian Knights burned down the Macedonia Baptist Church, a South Carolina African-American church. Three years later, “a South Carolina jury award[ed] the largest judgment ever against a hate group in Macedonia v. Christian Knights of the Ku Klux Klan. The Christian Knights, its state leader and four other Klansmen [were] ordered to pay $37.8 million (later reduced to $21.5 million)." Writes SPLC:

The civil judgment forced the Klan to give up its land and headquarters. When the property was sold, the deed included a restriction that the land never be used for white supremacist activities.

The judgment in this case transformed the Christian Knights from one of the most active Klan groups in the nation to a defunct organization.

Clearly, the shooter in the Charleston church massacre (a terrorist hate crime if there ever was one) is aligned with - if not part of - similar organizations. These groups haven’t exactly been hiding out lately.  For example, in Seneca, South Carolina last year,

[R]esidents in Oconee County reportedly found bags in their street containing candy and a leaflet with the message "Save Our Land, Join the Klan." It had a phone number that led to an automated message discussing KKK efforts against illegal immigration.

In the same month, a KKK rally was held in Abbeville, according to NBC station WYFF….

South Carolina is one of only five states that does not have a hate crimes law, according to campaign group SC Equality, although a recent extension of federal law means there are legal protections for victims of hate crimes in all states.

If indeed, it’s determined that this evil individual (who shall go nameless here) is connected to any of these hate groups, we hope (and have no doubt), SPLC will attempt to sue them out of existence. Seems like we need this now more than ever.