Thursday, December 10, 2009

Insurance Company Profits 24% Higher in States with Severe Restrictions on Patients' Rights

For Immediate Release: December 10, 2009

Contact: Ray De Lorenzi
American Association for Justice
202-965-3500 x8369
AAJ Press Room

Report: State Tort Reforms Don't Lower Premiums
For Doctors or Patients

Insurance company profits 24% higher in states with severe restrictions on patients' rights

Washington, DC—State tort reforms have provided a boon to insurance companies, leading to record profits while physician and patient premiums continue to skyrocket.

An analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.

The findings also show absolutely no correlation between the cost of malpractice premiums and health insurance premiums. For example, Maine has the ninth lowest malpractice premiums but the fourth highest health insurance premiums. Conversely, Nevada has the third lowest health insurance premiums nationally, but malpractice premiums are the country's ninth highest, despite having a cap in place for eight years.

"The data are clear: tort reform is just another insurance company handout," said American Association for Justice President Anthony Tarricone. "Insurers cried wolf and demanded tort reform, only to pocket the profits and never pass savings onto physicians or patients. While 98,000 people die every year from preventable medical errors, it's nonsensical to limit patients' rights simply to fill insurance company coffers."

The report also shows how medical negligence laws were passed under false pretenses. The medical malpractice insurance industry has seen a 47 percent increase in profitability in the last 10 years. Overblown "reported" losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.

Now that over 30 states have malpractice caps, insurance companies are enjoying extremely high levels of profit. In 2008, the average profit of the 10 largest medical malpractice insurers was higher than 99 percent of Fortune 500 companies and 35 times higher than the Fortune 500 average.

Finally, the report explains the dynamics of the insurance cycle and trends in premium pricing, which are well-known by analysts within the insurance industry. Remarkably, the industry’s leaders are already positioning to claim another “tort crisis” and to lobby for even more severe restrictions on patients’ rights in 2012.

To view a copy of Insurance Company Handout: How the Industry Used Tort Reform to Increase Profits While Americans' Premiums Soared, visit http://www.justice.org/clips/Insurance_Company_Handout.pdf.

AAJ has released a series of reports throughout the health care debate, as well as video tributes to the lives behind medical negligence. To learn more, visit www.98000reasons.org.

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Friday, November 20, 2009

AAJ Statement of JPMorgan Removing Forced Arbirtration Clauses from Credit Card Contracts

Today, JPMorgan Chase & Co., the biggest credit card lender, will remove clauses from its contracts that force consumers into arbitration. Numerous reports and studies have shown these forced arbitrations are largely stacked against consumers.

The following is a statement from American Association for Justice President Anthony Tarricone:

“JP Morgan’s decision is a win for consumers, who previously had no recourse because of rigged forced arbitration proceedings. Unfortunately, other lenders and corporations outside the financial sector still insist on forcing their employees or customers into one-sided arbitrations to escape accountability. Congress must act and pass the Arbitration Fairness Act to prohibit this abusive practice and give Americans a real opportunity to receive justice when facing corporate wrongdoers.”

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Thursday, November 19, 2009

AAJ Calls on Congress to Restore Americans' Basic Legal Protections

Bill introduced in U.S. House today – “Open Access to Courts Act of 2009” – will restore standards required to file court cases back to decades-long precedent

Washington, DC—A bill introduced in the U.S. House of Representatives today will restore standards required to file court cases and strengthen Americans’ basic legal protections. The “Open Access to Courts Act of 2009,” introduced by Rep. Jerrold Nadler (D-NY), Rep. Hank Johnson (D-GA), and House Judiciary Chairman John Conyers (D-MI), will address recent U.S. Supreme Court decisions – Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) – which irrationally raised the bar for Americans seeking justice in employment, discrimination, and other civil cases.

Since 1938, individuals and businesses could file suit by submitting a short and plain statement, called a complaint, which described the facts of the case. In Twombly and Iqbal, the Supreme Court created a new interpretation of these rules. With these vague and subjective legal pleading standards, cases are now being dismissed even before the plaintiff can obtain evidence that would confirm the allegations, a process known as discovery. This effectively requires people to know more information than they possibly could have access to.

Since many cases are proven because of documents – such as personnel files and internal company memos – uncovered in discovery, these new standards allow negligent corporations to escape accountability while weakening Americans’ basic legal protections.

“Without this bill, access to justice will be denied before people even reach the starting line,” said American Association for Justice President Anthony Tarricone. “Congress must act to ensure meritorious cases can move forward so wrongdoers won’t escape accountability.”

A bill sponsored by Sen. Arlen Specter (D-PA) has already been introduced in the U.S. Senate (S. 1504) to return these pleading standards to their prior precedent – established in 1957 by the Supreme Court in Conley v. Gibson.

A wide range of groups support the effort to restore legal standards, including: Alliance for Justice, American Antitrust Institute, American Civil Liberties Union, The Brennan Center for Justice at NYU School of Law, Center for Justice & Democracy, Christian Trial Lawyer’s Association, Committee to Support the Antitrust Laws, Community Catalyst, Consumer Federation of America, Consumers Union, Earthjustice, Environment America, Essential Information, The Impact Fund, La Raza Centro Legal, Lawyers’ Committee for Civil Rights Under Law, Leadership Conference on Civil Rights, Mexican American Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund, National Association of Consumer Advocates, National Association of Shareholder and Consumer Attorneys, National Consumer Law Center, National Consumers League, National Council of La Raza, National Crime Victims Bar Association, National Employment Lawyers Association, National Senior Citizens Law Center, National Whistleblowers Center, National Women’s Law Center, Neighborhood Economic Development Advocacy Project, Public Citizen, Sierra Club, Southern Poverty Law Center, Taxpayers Against Fraud, and U.S. Public Interest Research Group.

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.

Wednesday, November 4, 2009

New Paper Debunks Malpractice Myths

Contact: Ray De Lorenzi
202-965-3500 x369
AAJ Press Room


New Paper Debunks Malpractice Myths

Washington, DC—As enemies of health care reform spread lies and untruths about medical negligence, a new white paper tackles the issue head-on, debunking the most common myths with sound science and research while refuting the hyperbole and empty rhetoric.

Five Myths About Medical Negligence, one in a series of reports from the American Association for Justice on this issue, examines the errors and faults behind the most commonly used talking points of health care reform opponents.

• Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits. Only one in eight people injured by medical negligence ever file suit. Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket. A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

• Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

• Myth #3: Doctors are fleeing.

Fact: Then where are they going? According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth. Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

• Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims. A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

• Myth #5: Tort reform will lower insurance rates.

Fact: Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

“All the facts and evidence show that tort law changes will do practically nothing to lower costs or cover the uninsured,” said AAJ President Anthony Tarricone. “It’s no wonder the tort reformers, insurance lobby, and other corporate front groups have to gin up lies and phony stats, since no legitimate data or research supports their claims. Our focus should be on reducing the 98,000 deaths by medical error that occurs every year, not limiting patients’ legal rights.”

As part of its ongoing series on the topic, AAJ earlier released Medical Negligence: A Primer for the Nation’s Health Care Debate, The Truth About “Defensive Medicine,” and The Insurance Hoax: How Doctors and Patients Pay for the Huge Earnings of Medical Malpractice Insurers. These can be located at www.justice.org/medicalnegligence. Five Myths About Medical Negligence can be found directly at: www.justice.org/clips/Five Myths About Medical Negligence.pdf.

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Thursday, October 29, 2009

Tort Law Changes Won't Reduce Malpractice Premiums

For Immediate Release: October 29, 2009

Contact: Ray De Lorenzi, American Association for Justice
202-965-3500 x369
AAJ Press Room

New Data Shows Tort Law Changes Won’t Reduce Malpractice Premiums

Insurance companies lobby to limit patients’ legal rights,
yet never pass savings onto physicians or consumers

Washington, DC—Tort law changes have failed to reduce malpractice insurance costs, and states with caps on damages often have higher premiums than states without caps, according to an analysis of just-released liability data.

While insurance companies have claimed tort law changes would lower physicians’ premiums, this has not been the case. There is either no difference in rates between cap and non-cap states, or cap states actually have higher premiums – underscoring how a state’s liability laws play no role in lowering insurance or overall health care costs. Doctors’ premiums rise and fall based on the insurance cycle, totally unrelated to the legal system.

The new data shows:
• Average liability premiums across internists, general surgeons and OB/Gyns are nearly identical for states with or without caps.
• Average liability premiums for OB/Gyns are nearly identical for states with or without caps.
• Average liability premiums for general surgeons are 9.3% higher in states with caps.
• Average liability premiums for internal medicine are 9.9% higher in states with caps.

“Malpractice insurers promised tort law changes would lower premiums, yet it has not happened,” said American Association for Justice President Anthony Tarricone. “While these companies make record profits off the backs of doctors, patients injured through no fault of their own are often unable to seek recourse. This information comes at an important time in the health care debate – providing clear evidence that tort law changes won’t decrease costs.”

The above statistics were derived from data released this month in Medical Liability Monitor. More information and charts on this data can be found at www.justice.org/clips/premiums2009.pdf.

As part of its ongoing series on the topic, AAJ earlier released Medical Negligence: A Primer for the Nation’s Health Care Debate, The Truth About “Defensive Medicine,” and The Insurance Hoax: How Doctors and Patients Pay for the Huge Earnings of Medical Malpractice Insurers, all of which can be located at www.justice.org/medicalnegligence.

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

True Stories of Corporations that Knew their Products were Dangerous-- Even Deadly

The American Association for Justice released an incredible report yesterday--- They all Knew and Failed to.... The report details how lawsuits keep us safe.

Listed in the report are numerous examples of companies that knowingly and willfully released products that harmed or even killed consumers. It describes the case of a company that discovers rat droppings are contaminating its food products but insists that the products be recooked, boxed up, and sold anyway. Then there is the example of a company that discovers its bulletproof vests are defective but still sells them to law enforcement agencies and the military-- putting those that protect us at grave risk.

Wednesday, October 28, 2009

Toys to Toxic Waste

For Immediate Release: October 28, 2009

Contact: Jennifer Fuson
202-965-3500 x369
AAJ Press Room

Toys to Toxic Waste: New Report Details Corporations that Skirt Responsibility and Shun Consumer Safety to Save Money

Washington, DC—As the U.S. Chamber Institute for Legal Reform holds their annual summit – an event dedicated to championing corporate misconduct and evading accountability – a new report released today details true stories of corporations that knew their products were dangerous, yet failed to act and protect consumers.

“They Knew and Failed To” details numerous examples of medical devices, prescription drugs, and other consumer products that remained on the market after critical safety concerns had been raised within the company, while using all means necessary to avoid being held accountable for their misconduct.

In one example, police officer Tony Zeppetella of Oceanside, Calif. had paid $313 to “upgrade” his standard bullet proof vest. The Ultima body armor Zeppetella had purchased was widely used by law enforcement, military personnel, and even worn by the President and Mrs. Bush. Unfortunately, Zeppetella was shot and killed on a routine traffic stop in June 2003, when a bullet penetrated his vest.

Second Chance, the manufacturer, had known as early as 1998 that heat and sunlight caused the material to degrade, making the vests penetrable. Internal corporate memos from 2001 revealed an executive at the company had recommended notifying customers about the products’ defect, saying, “Lives and our credibility are at stake.” It was not until September 2003 that the company eventually recalled 130,000 vests, three months after Zeppetella was shot. The company had known for five years there were problems with their vests, but failed to notify consumers, putting law enforcement and service members’ lives at risk. Several years later, Second Chance recalled another 98,000 vests.

“While most businesses act in good faith to serve their customers and communities, unfortunately some corporations recklessly put lives at risk for the sake of profit,” said American Association for Justice President Anthony Tarricone. “While front groups like the Chamber stage events practically celebrating corporate misconduct, this new report convincingly illustrates the importance of holding wrongdoers accountable.”

The full report, “They Knew and Failed To,” is available at: www.justice.org/clips/TheyKnewAndFailedTo.pdf.

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Tuesday, October 27, 2009

Mom amputee after medical malpractice



From CNN:

Six years ago, shortly after arriving at the ER at Memorial Hospital West in the Fort Lauderdale suburb of Pembroke Pines, Strong says she told a nurse she thought she was having a problem with a kidney stone. She had had difficulties with stones.

But miscommunication between doctors and different diagnoses eventually led to her being discharged without having the kidney stone treated. That led to a rare tissue inflammation called "the line of demarcation," seen as a darkening of the skin in the extremities that slowly creeps upward.

"My fingers were turning black and curling. They looked charred," she said. "My toes were turning blue and black. It wouldn't stop. I had no idea what was happening to me," she recalled.

Strong said she was told she had no choice but to have her arms and legs amputated to save her life.

Friday, October 23, 2009

AAJ Women's Caucus Reception

AAJ announces their Women's Caucus Networking Reception on Thursday, October 29th in Washington DC.

Monday, October 12, 2009

Hot Coffee the movie

Join us tomorrow night at the LandMark Theaters in Midtown for a screening of the documentary Hot Coffee. Contact Rebecca DeHart for more information.

From the website www.hotcoffeethemovie.com:


What’s the most famous legal case in American history?

Marbury v. Madison, Brown v. Board of Education, Roe v. Wade? Ask anyone in the U.S. or abroad and they will likely tell you about a woman who spilled coffee on herself and collected millions of dollars. The McDonald’s coffee case became the poster child for frivolous lawsuits in America. Jerry Seinfeld did an entire episode where Kramer sued Java World after spilling a cafĂ© lattĂ© on himself while trying to get a seat in a movie theater. Jay Leno, David Letterman and other comedians have made the case the punch line for jokes; there are even the “Stella Awards” (for Stella Liebeck), given each year to the most outrageous and frivolous lawsuits. But if this case was so ridiculous, why did a jury award $2.9 million dollars to this 79 year old after a seven-day trial in 1994? Did McDonald’s not have good lawyers? And how did this case gain such notoriety and remain in the minds of so many people after so many years?

The McDonald’s coffee case has been routinely cited by the media as an example of how citizens have taken advantage of the legal system. In this documentary, you will learn what really happened to Stella, meet her grandson, who was driving the car, and hear from her doctor, the lawyers, McDonald’s quality assurance manager, and the jurors. Was the media’s portrayal of this case fair or was there an agenda by tort-reform groups to create a public perception that lawsuits were out of control. How did it become the poster child for tort reform, what is tort reform and how does it affect everyday Americans?

We will show how this case became so popular in the media (along with other examples of “frivolous” lawsuits), who funded the effort and to what end. We will interview political scientists, law school professors and consumer advocates who have spent years analyzing media coverage of the tort system and who controlled the message. We will show how the media was used and continues to be used for a political agenda to prevent access to the court system and immunize corporations from civil liability. We will educate the audience about caps on the amount of money that victims can receive in court in most states, how the federal government has enacted laws to prevent people from their day in court, and how the small print on credit card and real estate contracts, for example, prevent people from being able to get into the court system, denying access to justice. We will explore judicial races in states where tort reform measures have passed and then were later found unconstitutional by the State’s Supreme Courts. In many of these states there were major public relations campaigns established by tort reform groups to unseat pro-consumer justices and replace them with pro-business justices. We will interview representatives from the American Tort Reform Association, the U.S. Chamber of Commerce (who even recently started a new website called “Faces of Lawsuit Abuse”) and even Phillip Morris, to find out what their involvement was in keeping this story alive and the motivations behind it.

We will let the audience decide who really profited from spilling hot coffee.

Tuesday, October 6, 2009

Medical malpractice insurers earning more than ever

For Immediate Release: October 6, 2009

Contact: Ray De Lorenzi, American Association for Justice
202-965-3500 x369
AAJ Press Room

Medical Malpractice Insurers Earning More Than Ever

10 biggest malpractice insurers have average profits
higher than 99% of Fortune 500 companies


Washington, DC—As Congress debates nationwide health care reform, a new analysis reveals malpractice insurers have long-played a cruel hoax on legislators and the public. By systematically distorting profits and losses, insurers created phony “financial crises,” so lawmakers would limit the legal rights of injured patients. Today, while premiums and health care costs skyrocket, malpractice insurers have average profits higher than 99 percent of Fortune 500 companies.

The key findings of the report, which analyzes the annual financial statements of the 10 largest U.S. medical malpractice insurers, include:
  • The average profit of these insurance companies is higher than 99 percent of all Fortune 500 companies and 35 times higher than the Fortune 500 average for the same time period.
  • Malpractice insurers have seen their profit margins range from 5.9 percent to 74.8 percent, with an average of 31.2 percent.
Medical malpractice insurers have underestimated profits and overestimated losses, creating overblown insurance “crises” to garner support for limiting patients’ legal rights. Then years later after the “crises” abated, revised filings show the companies were never in the financial peril they claimed.
  • After overestimating losses, insurers have since reported that losses over the last five years have been approximately 13.5 percent lower than initially reported.
  • By overestimating losses, companies have underestimated profits. Insurers averaged about 5.1 percent higher profits last year and 12.4 percent higher profits two years ago; these levels of profits will likely rise as upward revisions are made.
  • Medical negligence laws were passed under false pretenses. Overblown reported losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.
“Insurance companies are gouging doctors on their premiums to mislead lawmakers. And today, injured patients are often left with no avenue to pursue justice, while health care costs continue to skyrocketing,” said American Association for Justice President Anthony Tarricone, managing partner at Kreindler & Kreindler LLP.

“As Congress looks to overhaul our nation’s health care system, it’s clear that limiting the legal rights of patients won’t lower health care costs or cover the uninsured,” continued Tarricone. “The focus should be on eliminating medical errors that injure or kill tens of thousands of Americans every year. Insurance companies clearly don’t need another handout.”

As part of its ongoing series on the topic, AAJ earlier released Medical Negligence: A Primer for the Nation’s Health Care Debate and The Truth About “Defensive Medicine.” These reports, as well as The Insurance Hoax: How Doctors and Patients Pay for the Huge Earnings of Medical Malpractice Insurers, can be located at www.justice.org/medicalnegligence.

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Tuesday, September 22, 2009

New Ad Campaign Tells Congress to "Put Patients First"

For Immediate Release: September 22, 2009

Contact: Ray De Lorenzi, American Association for Justice
202-965-3500 x369
AAJ Press Room


New AAJ Ad Campaign Tells Congress: “Put Patients First”

Calls On Congress to Improve Health Care by Reducing 98,000 Annual Deaths from Preventable Medical Errors - Like Two 727s Crashing Every Day for an Entire Year

Washington, DC—The American Association for Justice (AAJ) today launched the first phase of a nationwide ad campaign to educate lawmakers about the epidemic of preventable medical errors and how tort law changes won’t lower costs or cover the uninsured. The ads are running in opinion-leading Washington publications and influential online news sites.

According to the Institute of Medicine, 98,000 people are killed annually by preventable medical errors. “That’s like two 737s crashing every day for a whole year,” says the ad, which will initially run in Beltway publications and web sites nationwide. The ad concludes by posing the rhetorical question, “Would we blame the passengers or the airlines?”

“Our health care system is clearly broken, and if we are serious about improving it, we need to fix preventable medical errors,” said AAJ President Anthony Tarricone. “This new ad campaign gives Congress 98,000 reasons why they should put patients’ health first – before the profits of insurance companies. If we work to improve our health care system and reduce medical errors – rather than strip people of their rights – there would be far fewer victims that need legal recourse.”

The ads are an extension of AAJ’s efforts to improve the nation’s health care system by addressing preventable medical errors instead of trying to take away long-established Constitutional rights.

The Government Accountability Office and Congressional Budget Office have both said taking away patients’ rights will not significantly lower health care costs and found no evidence of so-called “defensive medicine.” Nonetheless, the insurance industry, political opponents of reform and others members of the health care industrial complex have continued to use patients’ rights as bargaining chips during this debate.

“Americans deserve health care reform that will actually fix our broken system, not force them to give up their legal rights,” said Tarricone. “Let’s focus on preventing errors in the first place, not targeting those injured through no fault of their own.”

To learn more about AAJ’s ad campaign and the role of medical negligence in the health care debate, visit www.98000reasons.org.

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Caps undermine accountability and don’t deliver cost savings.

GTLA member and Communications Committee Chairman Andy Childers wrote the following piece appearing in the AJC today:

Caps undermine accountability and don’t deliver cost savings.


By C. Andrew Childers

We’ve been told for so long that lawsuits and large jury verdicts are the reason for our excessive health care costs that, despite the absence of any factual basis for such an allegation, some still think it’s true.

Supporters of so-called tort reform claim that the threat of lawsuits forces doctors to order unnecessary or excessive tests and procedures to protect themselves — a phenomenon they call “defensive medicine.”

In reality, both the Congressional Budget Office and the Government Accountability Office under President George W. Bush cast serious doubts as to whether defensive medicine even exists.

The town of McAllen, Texas, may illustrate this point best, as it is the home of the most expensive health care in the nation. Despite having caps on damages an injured victim may recover, doctors in McAllen still routinely order excessive testing and procedures. They don’t do so out of fear of lawsuits — Texas law already immunizes them.

They do so because the fee-for-service structure set up by the health insurance industry actually encourages doctors to order them. The more tests and procedures doctors perform, the more they get paid. After Texas capped damages, allowing negligent doctors to harm patients without the fear of lawsuits, the number of medical malpractice complaints to the Texas State Medical Board actually rose from 2,942 to 6,000 in just one year.

During the debate over reforming our health care system, tort reform — and more specifically, caps on damages a victim may recover no matter how badly he or she is injured — has been slyly added to the mix by the those out to derail health care reform at any cost. The facts prove that placing arbitrary limits on medical negligence verdicts would have little or no impact on the overall costs of health care.

The New England Journal of Medicine published a study concluding that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” The National Bureau of Economic Research found that tort reform laws do not avert physician shortages nor do they lead to better patient care.

Data from the American Medical Association shows that the number of practicing physicians has actually been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages.

In most states, malpractice premiums have continued to go up, while the number of malpractice claims filed has remained stable or has gone down. Less than 1 percent of all civil cases are malpractice cases, and 48 states already have malpractice limits. And yet, the cost of health care continues to skyrocket.

In the U.S., preventable medical errors are the leading cause of accidental death — and the sixth leading cause of death. A study by the Institute of Medicine found that 98,000 Americans die each year as a result of this preventable negligence. Just 6 percent of doctors are responsible for nearly 60 percent of negligent care — and the courts are the only effective means of holding them accountable. But capping damages a victim may recover undermines this accountability.

Our forefathers devised a fair and just way for citizens to seek justice when someone harms them — through a trial before a jury. They didn’t believe that government should predetermine the outcome of a trial by limiting how juries assess individual cases. Taking away patient rights — by capping damages and limiting their 7th Amendment right to trial by jury — does not improve the quality of our health care system or produce cost savings. Health care reform should be about making sure that every American has access to quality, low-cost health care, not about limiting the constitutional rights of innocent patients harmed by preventable medical negligence.

C. Andrew Childers, an attorney with Childers & Schlueter, is a member of the Georgia Trial Lawyers Association.

Editorial in the Marietta Daily Journal

Joe Kirby, Editorial Page Editor of the Marietta Daily Journal pens a great column:

No Miracle Cure
by Joe Kirby
Columnist
September 20, 2009 01:00 AM

Let's say you go to the doctor or surgeon for what is supposed to be a routine procedure, like a colonoscopy or facelift. But thanks to the doctor's or hospital's negligence or ineptitude, the outcome is anything but routine. For a Marietta woman whose case was heard last week by the Georgia Supreme Court, the outcome was horribly disfiguring facial scars - scars so severe her lawyers describe the photographs of them as too gruesome for public distribution.

"Too bad," say tort reform-minded lawmakers around the country about the victims in such cases.

They are pushing to put caps on damage awards in malpractice lawsuits brought in the wake of such cases. In fact, the Georgia Legislature already imposed such caps back in 2005 shortly after the Republicans took control of that body for the first time in more than a century. They capped "pain and suffering" awards (as opposed to economic damage awards) at just $350,000.

I'm sure that $350,000 is more than enough to ease the pain of a mangled face. Aren't you?

And what about the case of an unfortunate Fulton County infant, who, thanks to a botched circumcision in 2004, will go through life missing a third of his penis? I'm sure that every last one of the males reading this column feels that $350,000 would be more than adequate compensation for spending the rest of their life missing a third of his penis. Especially any tort reform-minded congressmen or state legislators, apparently.

Many tort reformers in Georgia and around the country are enamored with the notion that malpractice reform should be the cornerstone of any effort to improve the nation's health care system. They want to make it much harder to pursue meritorious medical malpractice lawsuits and want to cap awards at ridiculously low levels in order to try to dissuade people from filing them, and attorneys from taking them.

The 2005 Georgia General Assembly was on the cutting edge of med-mal reform back in '05, you might say. The law it passed, with its $350,000 cap on non-economic damages, is so severe - so hard-hearted - that if your stay-at-home spouse, or your young child (i.e., anyone who is not employed or who lacks an earnings history), is inadvertently killed or maimed for life by a doctor, the most the plaintiff can hope to ever recover via a jury trial is that $350,000.

The state Supreme Court last week heard arguments in the case brought by Betty Nestlehutt, now 75, of Marietta, whose doctor inadvertently shut off nearly all of the flow of blood to the skin of her face during plastic surgery, causing gaping wounds to later open up across the lower half of her face as the skin died.

After hearing all the evidence, the 12-person jury found her pain and suffering damages were worth $900,000. Her doctor's lawyer argues that that amount should be automatically reduced to $350,000. The Supreme Court must decide on the constitutionality of the caps - that is, whether, as Justice Carol Hunstein wondered aloud last week, the caps have turned the right to trial by jury into a "hollow right."

Tort reform advocates argue that soaring malpractice insurance fees are driving doctors out of Georgia and into retirement; hence the need for the caps. Yet in Georgia, doctors are not required to even carry malpractice insurance. All I know is that the phone book is still overflowing with listings for doctors - just as it was before the awards were capped - and that WellStar Kennestone Hospital's "footprint" atop the hill on Church Street keeps getting bigger and bigger.

Those pushing for med-mal reform like to portray it as "jackpot justice." And yes, there have been abuses, such as John Edwards' shamelessly over-the-top - and eventually extremely lucrative - summations to juries in a string of lawsuits on behalf of babies who he claimed suffered cerebral palsy because their doctors failed to perform Caesarian deliveries.

And Republicans also argue, credibly I think, that the fear of lawsuits has caused doctors to practice "defensive medicine" - ordering multitudes of expensive but often unnecessary tests, mostly for "CYA" reasons in case they are later sued.

Yes, we should be very wary of the pitfalls of Obamacare, but be ware as well of tort reformers' claims that malpractice reform is the miracle cure that will, almost by itself, cure all that ails the country's medical system.

There has to be a better way of protecting doctors from frivolous lawsuits than by the kind of arbitrary, one-size-fits-all jury-award caps passed by the Georgia General Assembly. Those caps have nothing to do with the evidence of the case and serve only to hurt catastrophically injured patients whose claims have already passed muster by a judge and jury.

If you don't believe me, just ask Ms. Nestlehutt - or wait a few years, and ask that poor kid from Fulton County.

Joe Kirby is Editorial Page Editor of the Marietta Daily Journal and author of "The Bell Bomber Plant."

Monday, September 14, 2009

Manufacturing Giant Pfizer Agrees to a $2.3 Billion Penalty in Health-Care Fraud Settlement

Pfizer, one of the largest drug manufacturers in the US, is paying $2.3 billion dollars in penalties for misbranding its popular arthritis drug, Bextra.


The company pleaded guilty to illegally promoting its products "with the intent to defraud or mislead." The Food and Drug Administration had pulled Bextra off the market shelves in 2005.


Pfizer settled at $2.3 billion because it was marketing its drug for a purpose not approved by the FDA.The FDA had asked that Pfizer remove Bextra from U.S. and European pharmaceutical markets, claiming the fear about the threat of strokes and heart attacks, as well as the grave skin reactions, and other cardiovascular issues.


Pharmacia & UpJohn, a company owned by Pfizer, will be pleading guilty to a criminal charge of fraud.


The penalty is one of the largest drug settlements to date.


Read more about this story HERE

GTLA Remembers the Life of Al Wall-- our President in 1966

Al Wall, past President of GTLA passed away on Saturday. His obituary from the AJC is below:

WALL, William Alford WILLIAM ALFORD (AL) WALL Renowned Trial Lawyer, William Alford (Al) Wall passed from this earth, Saturday September 12, 2009. He was 83. He was a no nonsense lawyer with a big heart. Al lived life to the fullest and when not occupied by a trial, he was enjoying horseback riding and fox hunting on his "gentleman's farm". Al was devoted to his family and friends.

Wall, who practiced law for 58 years in Atlanta, was recently retired in Athens, Georgia. He was past president of the Georgia Trial Lawyers Association, the Georgia delegate to the American Trial Lawyers Association.

In addition to enjoying horseback riding, he served three terms as Chairman of the Shakerag Hounds. In his own words he made a career defending the rights of widows, orphans, and the maimed.

Wall attended Georgia Military Academy. While serving in the U.S Navy V-12 program, he attended the University of North Carolina, University of Miami and the University of South Carolina. He graduated from the University Of Georgia Law School and remained an avid Bulldog fan.

He will be missed by his family, and extended family of friends. He is survived by his wife of 22 years, Marguerite Allgood Wall, his younger brother Clarence Watson Wall, Jr., wife Sally Coplan Wall and Clarence's son Clarence Watson Wall III, (Trey), daughters Victoria Maria Wall, her son William Kyle Wall, Patricia Elizabeth Wall Wells, her husband John and their son Adam John Wells. Mr. Wall was pre-deceased in 1977 by his first wife, Anita Delores Haltiwanger Wall. Extended family consists of nephews, nieces, grandnieces, and grandnephews.

Funeral service will be held Wednesday, September 16th at 11:00 a.m. at Roswell Funeral Home with interment to follow in Westview Cemetery . The family will receive friends at the funeral home Tuesday, from 5:30 to 8:00 pm. The Shakerag Hounds will host a celebration in memory of Mr. Wall Sunday September, 20th at 4:00 pm in Hull, Georgia.

"There is something about jumping a horse over a fence, something that makes you feel good. Perhaps it's the risk, the gamble. In any event, it's a thing I need." William Faulkner

Friday, September 11, 2009

Supreme Court to Hear Oral Arguments on Caps on Damages

Supreme Court to Hear Oral Arguments on Caps on Damages
Statute is challenged after a medical malpractice victim’s face
literally falls off after surgery


Atlanta, GA-- On Tuesday, September 15, 2009, the Georgia Supreme Court will hear oral arguments regarding the constitutionality of the provision that caps the amount of damages a victim of medical malpractice can secure from a jury. The plaintiffs in the case of Betty Nestlehutt and Bruce Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., will argue that the Georgia Supreme Court should uphold the trial court judge’s finding that O.C.G.A. § 51-13-1, as enacted in 2005, is unconstitutional.

The case arose from a medical malpractice claim filed by Adam Malone and Frank Ilardi on behalf of their clients Betty Nestlehutt and her husband Bruce Nestlehutt in the Fulton County State Court in October of 2008. Married for over 50 years, the Nestlehutts raised two children and they shared a real estate business. Bruce handled the behind-the-scenes work, and Betty, a people-person by nature, focused on client and public interaction. Competition was tough and as Betty aged she found that more and more clients seemed to prefer younger agents. So, at seventy-one years of age, Betty Nestlehutt, after much thought and consideration, sought consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. concerning bags under her eyes and lines around her mouth. Dr. Cole recommended she undergo several surgical procedures including a simultaneous CO2 laser resurfacing and full facelift.

Having both the CO2 laser resurfacing and full facelift done together is well-known by practicing cosmetic surgeons to be risky, as the chance of damaging the facial blood supply is greatly increased on a patient of Betty’s age and complexion. However, based on her doctor’s recommendation, Betty went through the combination of procedures and the blood supply to her face was, in fact, severely damaged.

After the surgery, the skin on Betty’s face struggled to live without its usual blood supply and after a 3-week period, died completely, leaving the once fair-skinned wife and mother with huge, gaping wounds from her temple to her jaw line, covering both sides of her face and over both of her cheeks to her chin. Betty Nestlehutt’s face, quite literally, fell off.

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

After hearing the testimony and considering all of the evidence, a jury of 12 returned with a verdict in the Nestlehutts’ favor which included a recovery of money damages for her past and future medical expenses, for damage to her relationship with her husband and $900,000 in “non-economic” damages for the devastation of her quality of life. The verdict exceeded the $350,000 cap on noneconomic damages enacted as part of SB 3 in 2005. Judge Diane Bessen declared unconstitutional the statute capping a jury’s verdict and now her decision, upon the defendant’s appeal, is before the Supreme Court.

“Judge Bessen’s order appropriately concluded that a one-size fits all predetermined cap on damages violates several protections guaranteed by the Georgia Constitution,” said Malone. “Her order balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth by our Constitution that were stripped away in 2005.”

Judge Bessen’s order declares the caps on damages provision unconstitutional because it violates three basic constitutional tenets: the right to trial by jury, the separation of powers doctrine and equal protection of the laws.

Under SB 3, the jury’s deliberation regarding the amount of damages to be awarded is preempted by a legislatively imposed cap—no matter how severe or catastrophic the case before them. Historically, a jury had the ability to decide the fate of its peers constrained only by the particular facts of an individual’s case, as the Founding Fathers intended. Thomas Jefferson once said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its Constitution.”

In her order, Judge Bessen wrote:

A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. If the amount of noneconomic damages awarded by the jury exceeds the statutory cap, this Code section automatically and arbitrarily reduces the verdict, without consideration of the evidence, the record, or any other fact produced at trial and found by the jury. The limitations imposed by O.C.G.A. 51-13-1 render the right of the jury to assess damages meaningless… The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable.

Additionally, Judge Bessen also found that the cap on damages violates the Separation of Powers Doctrine contained in the Georgia Constitution. Three other states’ supreme courts, with similar constitutional provisions, also have struck down caps on damages on this basis. The Georgia Constitution states that: “The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others.” One distinct function of the judicial branch is that judges have the exclusive right to award to a party a “remittitur” – or a new trial – if a judge finds that a verdict is either excessive or inadequate. Judge Bessen’s order declares the cap on damages statute to be a “legislative remittitur” and that the legislature has unconstitutionally invaded the exclusive role of the judiciary to find facts and control judgments.

“Equally important,” the judge writes, “it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law.”

The third violation of the Constitution Judge Bessen found was that a cap on damages violates the Equal Protection provisions of the Georgia Constitution which state: “No persons shall be denied the equal protection of the laws.” To examine this violation, Judge Bessen explored whether there was a “rational relationship” between the government’s purpose and its enacted statute which treats similar parties in very different, unequal ways.

The rational relationship test basically states that a statute may be valid as long as it has a rational relationship to a governmental purpose. In the case of SB 3, the government’s stated purpose was to “promote predictability and improvement in the provision of quality health care services and the resolution of healthcare claims..., assist in promoting the provision of healthcare liability insurance by insurance providers…, [and addressed concerns about] medical providers and facilities leaving the state and the cost of malpractice awards.” For a law to be valid, a rational relationship to those goals must be proven. Judge Bessen found that the cap on damages failed the rational relationship test completely.

In holding the cap on damages provision unconstitutional, Judge Bessen wrote:

After review, this Court finds that there is no rational relationship between statute and the expressed government interest. Most obviously, it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent healthcare providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for healthcare providers and diminishes the deterrent effect of tort law… There is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs… Based on current statistics, limiting noneconomic damage caps is not rationally related to the state purpose of reducing medical malpractice insurance rates… it appears that this statute was enacted arbitrarily, based upon speculation and conjecture rather than empirical data.

Finally, Judge Bessen found that the cap on damages violates Equal Protection because it creates different classes of victims—those injured by healthcare providers and those injured by others and those who are catastrophically injured and those who are less severely injured. Judge Bessen penned, “The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated… Similarly, the noneconomic damages cap discriminates against low-income individuals who are unable to prove large economic damages but nonetheless may sustain large noneconomic damages.”

The President of the Georgia Trial Lawyers Association, Chris Clark, has been following this case closely.

“As a trial lawyer, I represent the person, who, through no fault of their own, has been injured—sometimes severely. They miss work, accrue medical bills and—often most important to them—they suffer a loss of the quality of life that they once had,” said Clark. “Betty Nestlehutt’s severe disfigurement – which she had no part in creating – has diminished her quality of life and, in turn her husband’s and her family’s. Judge Bessen’s order was fair, upheld our Constitution, and reflected the rule of law that has stood firm since the inception of this nation.”

The argument on Tuesday was prepared by Malone and attorneys Darren Summerville of Bird Law Group, P.C. and Michael Terry of Bondurant, Mixson & Elmore, LLP. AARP, Voices for Georgia’s Children, Georgia Women for a Change and Georgia Watch all filed Amicus Briefs in support of Betty and Bruce Nestlehutt.

###

Tuesday, September 1, 2009

'Tort Reform' would not lower healthcare costs

The New York Times blog, "Prescriptions: Making Sense of the Health Care Debate" posted an informative interview on August 31, 2009. Author Annie Underwood interviews Tom Baker, professor of law and health sciences at the University of Pennsylvania School of Law, about so-called "tort reform" and the national health care debate.

Q.

A lot of people seem to have taken up the cause of tort reform. Why isn’t it included in the health care legislation pending on Capitol Hill?

A.

Because it’s a red herring. It’s become a talking point for those who want to obstruct change. But [tort reform] doesn’t accomplish the goal of bringing down costs.

Q.

Why not?

A.

As the cost of health care goes up, the medical liability component of it has stayed fairly constant. That means it’s part of the medical price inflation system, but it’s not driving it. The number of claims is small relative to actual cases of medical malpractice.

Q.

But critics of the current system say that 10 to 15 percent of medical costs are due to medical malpractice.

A.

That’s wildly exaggerated. According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

Q.

You said the number of claims is relatively small. Is there a way to demonstrate that?

A.

We have approximately the same number of claims today as in the late 1980s. Think about that. The cost of health care has doubled since then. The number of medical encounters between doctors and patients has gone up — and research shows a more or less constant rate of errors per hospitalizations. That means we have a declining rate of lawsuits relative to numbers of injuries.

Q.

Do you have numbers on injuries and claims?

A.

The best data on medical errors come from three major epidemiological studies on medical malpractice in the 1970s, 1980s and 1990s. Each found about one serious injury per 100 hospitalizations. There hasn’t been an epidemiological study since then, because people were really persuaded by the data and it’s also very expensive to do a study of that sort. These data were the basis of the 1999 report from the Institute of Medicine, “To Err Is Human.”

Q.

And what percent of victims make claims?

A.

Those same studies looked at the rate of claims and found that only 4 to 7 percent of those injured brought a case. That’s a small percentage. And because the actual number of injuries has gone up since those studies were done — while claims have remained steady — the rate of claims is actually going down.

Q.

So the idea that there are lots of frivolous lawsuits is . . .

A.

Ludicrous.

Q.

In those cases that are brought, are jury awards excessive?

A.

There are already caps on awards in many states. These tend to be on non-economic damages — not medical expenses or lost wages, but typically on pain and suffering. The first was in California in the 1970s. There is pretty good research on that, showing it reduced medical liability payments. These caps vary from state to state, but they’re generally set around $250,000 to $500,000.

Q.

Many people would think that a quarter-million to a half-million dollars is a lot of money for pain and suffering.

A.

When California adopted its cap in the mid-1970s, it set it at $250,000. That doesn’t mean everyone got that much. It was the maximum. But that was considered a fair amount at the time. Since then, think how much inflation has eaten into that. These caps typically don’t index for inflation.

Q.

So a patient can get reimbursed for medical costs, but they’re limited for pain and suffering.

A. They get reimbursement of medical costs in principle. But in fact, they don’t, because the lawyer has to be paid. These cases can cost $100,000 to $150,000 to bring, so the patient has to deduct that amount from any award.

Q.

Why are these cases so expensive?

A.

You need expert witnesses who must be compensated for their time, which is valuable. You need depositions, which are expensive. You have to hire investigators. You have to pay your junior staff. It’s not worth bringing a suit if the potential award is less.

Imagine you go to the emergency room with appendicitis. For whatever reason, they fail to diagnose it. Your appendix bursts, and you spend a couple weeks in the hospital. I’ve had lawyers tell me they would not take a case like that, even if it’s a slam-dunk. The damages wouldn’t be enough — medical expenses, maybe a month of lost salary, although the patient might have short-term disability insurance that would cover a large part of that. It’s not enough to justify going to court.

Q.

So you’re saying that a case has to be serious to be worth trying.

A.

The medical malpractice system only works for serious injuries. What it doesn’t work for is more moderate ones. Lawyers discourage people from bringing suits if their injuries are not serious in monetary terms — a poor person or an older person who can’t claim a lot in lost wages. That’s why obstetrician-gynecologists pay such high premiums. If you injure a baby, you’re talking about a lifetime-care injury. Gerontologists’ premiums are exceedingly low.

That’s the reason I say if people are serious about tort reform, they should improve compensation for moderate injuries. Nobody likes that idea, by the way. They say it would make the system more expensive, not less expensive. More people would bring claims. That says to me that the critics are not serious about tort reform.

Q.

But it’s not just the cost of premiums and litigation. What about the charge that it causes doctors to practice “defensive medicine,” ordering tests that are expensive and unnecessary?

A.

A 1996 study in Florida found defensive medicine costs could be as high as 5 to 7 percent. But when the same authors went back a few years later, they found that managed care had brought it down to 2.5 to 3.5 percent of the total. No one has a good handle on defensive medicine costs. Liability is supposed to change behavior, so some defensive medicine is good. Undoubtedly some of it may be unnecessary, but we don’t have a good way to separate the two.

Q.

Tell me more about the 1996 study.

A.

It was published in The Quarterly Journal of Economics by Stanford economist Daniel Kessler and Dr. Mark McClellan, who was head of the Centers for Medicare & Medicaid Services under President George W. Bush. For two types of heart disease — heart attacks and ischemic heart disease — the authors found that 5 to 7 percent of the additional costs in Florida, compared to other states with lower medical malpractice liability, could be attributed to defensive medicine. This was based on 1980s data.

Using that estimate, some politicians used to say that medical malpractice cost the system $50 billion a year. But you can’t blindly say that all diseases are the same as heart disease, and if you want a nationwide estimate, you can’t say every state is the same as Florida. Furthermore, the second study, published in 2002 in The Journal of Public Economics, found that much of the difference disappeared as managed care took hold in Florida in the 1990s.

Q.

But many doctors complain about having to practice defensive medicine.

A.

Doctors will say that. But when you dig down, you find that what’s really happening is that doctors tend to do what other doctors around them do. They go along with the prevailing standard of care in their region — which in many cases isn’t even a state, but a city or county.

Q.

If medical malpractice doesn’t explain the high costs of our health-care system, what does?

A.

A variety of things. The American population is aging. We’ve had advances in technology that are expensive. We’re also a rich nation, and the richer you get, the more money you spend on health care. And compared to other countries, we have heavy administrative costs from the private-insurance system.

Q.

If it’s not true that medical malpractice is driving the high cost of medical care in this country, why won’t the argument go away?

A.

It makes sense to people intuitively — in part, because they’ve been told it so often. And it’s a convenient argument for those who want to derail the process. Maybe it’s a deep political game. Maybe they’re raising it to say, we’ll back off tort reform if you back off the public option.

Q.

What about former Senator Bill Bradley’s idea that medical courts with special judges should be established?

A.

Mr. Bradley has been backing tort reform for as long as I can remember, so this is hardly a compromise for him. I’m not saying medical courts would be a bad idea, as long as they’re not set up in a way that insulates medical providers from responsibility. That’s a big caveat.

Q.

What about Senator John Kerry’s assertion that it’s “doable” to rid the system of frivolous lawsuits?

A.

I guess it’s doable because there aren’t very many frivolous suits.

Stella Awards and Fake "News" Reports

From Texas Lawyer Bob Kraft, this on point comment on how many items of "news" on the web are simply false:

"The e-mail about the "Stella Awards" has been circulating for years, and so have articles proving these stupid stories are lies. But the e-mail just won’t die. The latest newspaper column debunking the Stella awards was printed yesterday in the Houston Chronicle. Take a look. The article concludes:

Here’s the lesson: The next time an Internet tale makes you think things are even worse than you thought, check it out. Especially when the tale suggests that the American system is stacked against wealthy corporations.

One easy way: www.snopes.com, an excellent site that investigates urban myths. It took less than 30 seconds to ask for "Stella Awards" and receive the verdict: "False."


Well said Mr. Kraft.

Monday, August 31, 2009

Texting While Driving: 2 Scientists Killed in Utah





After a crash here that killed two scientists — and prompted a dogged investigation by a police officer and local victim’s advocate — Utah passed the nation’s toughest law to crack down on texting behind the wheel. Offenders now face up to 15 years in prison.

The new law, which took effect in May, penalizes a texting driver who causes a fatality as harshly as a drunken driver who kills someone. In effect, a crash caused by such a multitasking motorist is no longer considered an “accident” like one caused by a driver who, say, runs into another car because he nodded off at the wheel. Instead, such a crash would now be considered inherently reckless.

“It’s a willful act,” said Lyle Hillyard, a Republican state senator and a big supporter of the new measure. “If you choose to drink and drive or if you choose to text and drive, you’re assuming the same risk.”

The Utah law represents a concrete new response in an evolving debate among legislators around the country about how to reduce the widespread practice of multitasking behind the wheel — a topic to be discussed at a national conference about the dangers of distracted driving that is being organized by the Transportation Department for this fall.

Studies show that talking on a cellphone while driving is as risky as driving with a .08 blood alcohol level — generally the standard for drunken driving — and that the risk of driving while texting is at least twice that dangerous. Research also shows that many people are aware that the behavior is risky, but they assume others are the problem.


Source here.

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Stella Awards

The Stella Awards® were inspired by Stella Liebeck, the Plaintiff in the McDonald's coffee case. Some folks may know that The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body,
including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.

There are many debunked jury "award" reports linked to the claimed awards.

From their own site:

"Many stories are going around the 'net saying they are "The Stella Awards". Many of these stories are false, made-up, or (sometimes) true stories with false elements added to them.

The sad part: despite these stories having been debunked years ago, they not only still circulate, but many reporters, columnists and radio "personalities" still talk about them as if they were true, which says a lot about their professionalism. In many outrageous cases, these lazy "news" people will even link to this site as the source of these silly lies."


Claimed Cases -Status:

Kathleen Robertson of Austin, Texas, was awarded $780,000 by a jury after breaking her ankle tripping over a toddler who was running amuck inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving tyke was Ms. Robertson's son. Fabricated.

Carl Truman, 19, of Los Angeles won $74,000 and medical expenses when his neighbor ran his hand over with a Honda Accord. Mr. Truman apparently didn't notice someone was at the wheel of the car whose hubcap he was trying to steal. Fabricated.

Terrence Dickson of Bristol, Penn., was exiting a house he finished robbing by way of the garage. He was not able to get the garage door to go up because the automatic door opener was malfunctioning. He couldn't re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation, so Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found, and a large bag of dry dog food. Dickson sued the homeowner's insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of half a million dollars and change.Fabricated.

Jerry Williams of Little Rock, Arkansas, was awarded $14,500 and medical expenses after being bitten on the buttocks by his next door neighbor's beagle. The beagle was on a chain in its owner's fenced-in yard, as was Mr. Williams. The award was less than sought after because the jury felt the dog may have been provoked by Mr. Williams who, at the time, was shooting it repeatedly with a pellet gun. Fabricated.

A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania $113,500 after she slipped on a spilled soft drink and broke her coccyx. The beverage was on the floor because Ms. Carson threw it at her boyfriend 30 seconds earlier during an argument. Fabricated.

Kara Walton of Claymont, Delaware, successfully sued the owner of a nightclub in a neighboring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the ladies room to avoid paying the $3.50 cover charge. She was awarded $12,000 and dental expenses. Fabricated.

The "winner" every year: In November, Mr. Grazinski purchased a brand new 32 foot Winnebago motor home. On his first trip home, having joined the freeway, he set the cruise control at 70 mph and calmly left the drivers seat to go into the back and make himself a cup of coffee. Not surprisingly, the Winnie left the freeway, crashed and overturned. Mr. Grazinski sued Winnebago for not advising him in the handbook that he could not actually do this. He was awarded $1,750,000 plus a new Winnebago. Fabricated.

Don't be fooled into believing all that you read on the web.

Wednesday, August 26, 2009

Diet Drug May Be Linked To Liver Damage

Xenical and its over-the-counter replica sold by GlaxoSmithKline are under strict scrutiny after the Food and Drug Administration (FDA) received 32 reports of serious liver damage in those taking the weight loss pills.

Six of these cases resulted in liver failure and over 20 were hospitalized due to severe injury sustained to their liver.

However, since no definite link has been established between the use of the drug and liver injury, the FDA has released a comment saying that those who are currently taking the pills should continue to do so as directed.

"The FDA's analysis of these data is ongoing, and no definite association between liver injury and Orlistat [which markets itself under Xenical and Alli] has been established at this time," the administration said.

The nonprescription version of Xenical sold in the United States is Alli. Alli is a popular brand, which built its credibility by heavily advertising that was the first FDA approved weight loss drug on the market.

Since the health concerns have risen, many asset management groups are concerned with what these alleged correlations between their drugs and the risks they are being linked to will do to their sales.

Mike Krensavage, principal of Krensavage Asset Management LLC said, “Any time the FDA raises an issue like this, demand is likely to suffer, at least temporarily.”

Krensavage seems to be right.

After making $197 million in profit overseas and another $125 million here on American soil so far in 2009, Glaxo shares have fell nearly 1.5 percent on the New York Stock Exchange.

Read the FDA report HERE.

Thursday, August 13, 2009

Tort Reform is Just a Distraction

Marietta Daily Journal
Guest Column
August 13, 2009

Tort Reform is Just a Distraction
98,000 Americans die each year from medical errors; let’s focus on real healthcare solutions

By: Lance Cooper

Whenever health care reform is proposed, some people instinctively think more so-called ‘tort reform’ should be the solution to the debate (see Marietta Daily Journal, 8-10-09). This effort diverts us from the real issue at hand—affordable, attainable and safe healthcare. Insurance companies and others who are fearful of accountability for medical negligence regularly employ the “Deny and Distract” routine. First, when faced with hard numbers and legitimate research placing blame not on lawyers, but on their own industries, they ‘Deny’ any accountability. Then they employ methods of ‘Distraction’ to tear us off the course to finding real solutions. ‘Tort reform’ is such a distraction.

Supporters of ‘tort reform’ argue that the threat of lawsuits makes doctors order unnecessary tests to protect themselves—a phenomenon they call “defensive medicine”—and yet there is no evidence to support those claims. Studies conducted by the Congressional Budget Office and the Government Accountability Office have all cast doubts that such a thing called ‘defensive medicine’ even exists. Take McAllen, Texas, home of the most expensive health care in the country—despite having draconian ‘tort reform’ laws and the same caps on damages that we have in Georgia, the doctors routinely order excessive testing and procedures. They do so not for fear of lawsuits but because the fee-for-service structure actually encourages them to. In other words, the more tests they perform, the more they get paid.

Claims of ‘frivolous lawsuits’ driving up healthcare costs is another regularly deployed method of distraction. Georgia, and the rest of the nation, already has laws against filing these so-called “frivolous lawsuits.” Comprising leaders of the medical field, The New England Journal of Medicine published a study concluding that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” And the overall number of medical malpractice cases is low; less than 1% of all civil cases are medical malpractice cases.

Another frequently echoed distraction is the notion that doctors are fleeing and causing physician shortages because of liability concerns and increased malpractice insurance premiums caused by lawsuits. Once again, this distraction is false. Data from the American Medical Association (AMA) show that physician numbers have been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages. The National Bureau of Economic Research found that ‘tort reform’ laws do not avert physician shortages, nor do they lead to greater, more efficient patient care.

Patient care is what really matters at this point. Preventable medical errors and mistakes is the leading cause of accidental death in the nation. Just 6% of doctors are responsible for nearly 60% of negligent care—and the Civil Justice System is the only effective means of holding them accountable. In Texas, after the $250,000 cap on damages was imposed, thereby freeing negligent doctors from accountability, the number of complaints against Texas doctors to the Medical Board rose from 2,942 to 6,000 in just one year. Proposed ‘tort reform’ measures do nothing but fill the coffers of malpractice insurance companies—the same companies who have raised premium rates on the doctors while civil claims have remained stable and, in most states have gone down.

Further dismantling our uniquely American system of accountability by enacting more ‘tort reform’ would be disastrous. We can’t forget what just happened with Wall Street vs. Main Street or the crash of AIG. The insurance industry and their special interest groups are utilizing a tired relic of gotcha-politics—blame the lawyers and hope Americans forget about the record bonuses being paid to insurance industry executives after the taxpayers bailed them out. Amazingly, insurance special interest groups with their call for more ‘tort reform,’ want to deprive Americans who just bailed them out of constitutionally protected access to our judicial system. Let’s ignore those distractions. Taking away patients’ Constitutional right to seek justice in a fair court of law, when they have been injured through no fault of their own, does nothing to improve our health care system nor does it increase patient safety. And it is, simply, un-American.

Lance Cooper of Powder Springs is past president of the Georgia Trial Lawyers Association and is a past president of the Cobb Trial Lawyers Association. He holds a degree in economics from Cal-Berkeley and a law degree from Emory University.

http://www.mdjonline.com/content/index/showcontentitem/area/1/section/17/item/138109.html