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.

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."

'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.

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.

GTLA Honors Georgia's Judiciary

For Immediate Release
(404) 376-3495, Rebecca DeHart

rdehart@gtla.org

A Great Escape and a Great Man
The Georgia Trial Lawyers Association honors Judge Anthony A. Alaimo

Atlanta, GA—Hailed as what will be the largest gathering of judges and attorneys in the history of the state of Georgia, the Georgia Trial Lawyers Association [GTLA] is hosting The Height of Excellence—an event honoring excellence in Georgia’s judiciary and where Judge Anthony A. Alaimo, a Senior United States District Court Judge of the Southern District of Georgia, will be the first recipient of the inaugural Anthony A. Alaimo Award for Judicial Excellence.

“It is very appropriate that the first award given by the members of GTLA for judicial excellence carries the name of Judge Anthony A. Alaimo and that he will be the very first recipient,” said GTLA President Fred Orr. “Judge Alaimo, at age 88, remains one of the hardest working judges in the entire country. He is among the most beloved and respected judges of the federal judiciary. He is a true American Hero.”

Before beginning his distinguished judicial career, Judge Alaimo served in the U.S. Army Air Corps flying a B26 as a member of the 322nd Bomb Group during WWII. His plane was shot down over the North Sea and Alaimo was captured by the Germans. It was his numerous daring escapes from a German POW camp that inspired the 1963 film, “The Great Escape,” starring Steve McQueen.

An American war hero, Alaimo returned to Georgia, married his high school sweetheart, graduated from Emory Law School and was admitted to the Georgia Bar in 1948. In 1968, Alaimo became the 8th President of GTLA and founded the quarterly magazine, “The Verdict.”

In 1971 President Richard Nixon appointed Judge Alaimo to the U.S. District Court for the Southern District of Georgia where he served as Chief Judge until 1990 and took senior status in 1991.

“Judge Alaimo is highly regarded as one of the most diligent judges in the entire federal judiciary,” stated Orr. “Judge Alaimo is often called to preside over complex cases and lengthy disputes. He is known to conclude cases that were thought to be never-ending in days—if not hours. His judicial skill is simply unmatched.”

Judge Alaimo has been recognized by the Chief Justice of the United States with appointments to most of the leadership positions that exist within the federal judiciary including service on the Judicial Conference on Records Disposition, the Judicial Conference Committee on the Judicial Branch, the Judicial Conference of the United States and the Executive Committee of the Judicial Conference of the United States. He is a member in good standing of the State Bar of Georgia and is a Life Member of GTLA.

The Height of Excellence will take place on Thursday, September 18th at the Ritz Carlton, Buckhead. The black-tie optional gala begins at 6:30 pm. Tickets for members of GTLA and their guests are $35 and $50 for all others. Anyone who would like to pay tribute to this great American Hero and to the entire Georgia judiciary is welcome to attend. Please contact GTLA Headquarters at (404) 522-8487 for more information.

###

The Georgia Trial Lawyers Association
Protecting the Constitutional Promise of Justice for all by
Guaranteeing the Right to Trial by Jury,
Preserving an Independent Judiciary, and
Providing Access to the Courts for all Georgians

www.gtla.org

GTLA President Fred Orr in the News

GTLA's President, Fred Orr, was featured in today's Atlanta Business Chronicle. The article, "Commitment to law lands Orr at head of GTLA," depicts his personal journey to practicing law.

Laying down roots inside Atlanta was a natural move for Orr, who not only attended undergraduate and graduate schools at Emory University, but grew up in the public school system of southwest Atlanta, attending then-Brown High School, where he made quite an impact as a student leader and athlete. Although setting up shop in Decatur was the natural choice, pursuing a law degree was not.

"I didn't know any lawyers, had never been in a law office, but I was always interested in politics and law," said Orr.

Orr had been offered scholarships to attend both Emory University and Georgia Tech after graduating from Brown High School. Though a fan of the Yellow Jackets then and today, Orr opted for Emory, where his older brother was already enrolled as a student (and could offer a free daily ride to school). At the suggestion of a fellow student, Orr pursued a law degree.
"I really fell in love with law in law school," said Orr.

Orr speaks of his commitment to GTLA and what it has meant for him to become president.

The recently installed 52nd president of the Georgia Trial Lawyers Association (GTLA) is humbled by his appointment.

"I never expected to be president [of the GTLA]," he said. But when the call came in 2006 telling him he'd been nominated to be fast-tracked into this leadership position, "I couldn't refuse," Orr said. "I was stunned, flattered and honored, and still a little shaken, that I am where I am. So many other people worked long and hard."

Orr built his reputation through hard work and fairness. As president of the GTLA, Orr will direct a 50-year-old membership organization of more than 2,000 Georgia attorneys, all dedicated to protecting the public and ensuring the public's right to the civil justice system.

Orr credits the GTLA for teaching him the skills that not only helped him define his views as a trial lawyer, but served as the foundation from which he built his career.

The article discusses some of Orr's more well-known cases and paints the accurate picture of a fair-minded leader in the legal community.

"I've been know to tilt some windmills," said Orr, who, at nearly 67 years old still plugs away at work seven days a week.

"I'm not sure that I've ever been satisfied with the status quo of anything. I hope to strive for the best at all times, particularly in my practice and my relationships."

GTLA Condmens the practice of 'Trolling for Victims'

Immediate Release
(404) 376-3495, Rebecca Bukant

Atlanta-The tragedy resulting from the Imperial Sugar Refinery has been made worse by the solicitation by unprincipled lawyers vying for the victims' cases. The news has reported that TV ads, print advertisements and even visits to the Augusta Burn Center by lawyers have occurred. Members and leadership of the Georgia Trial Lawyers Association are outraged by this reprehensible behavior.

"The Georgia Trial Lawyers Association unequivocally condemns these unconscionable acts by attorneys," said the President of the Georgia Trial Lawyers Association, Joe Watkins. "We are shocked that attorneys from Georgia and other states are attempting to solicit the families while they are mourning the loss of loved ones and praying at bedsides at the Augusta Burn Facility."

The State Bar of Georgia Rules prohibit attorneys from contacting victims immediately following a tragedy. “This is not the time for lawyers from Georgia or any other state to harass families and victims of a tragedy. To say that is in 'poor taste' is putting it mildly," said Watkins. "The families and survivors will decide if and when they will seek legal advice."

The Georgia Trial Lawyers Association, and its leadership, strongly believes that the Rules governing Georgia’s State Bar regarding such solicitation should be strengthened and the Association urges the State Bar to take appropriate action regarding this matter.

"Unfortunately, it is the unscrupulous behavior of a few attorneys, often from out of state, that reflects poorly on the image of all attorneys. That conduct is in no way a reflection of the principles, ethics and the integrity of the members of the Georgia Trial Lawyers Association,” said Watkins. “I speak for not only myself, but for our entire Association when I say that my thoughts and prayers are with the workers of the Imperial Sugar Refinery and their loved ones."

# # #

GTLA members demand safe water for Georgians

After twelve years of hard work, GTLA members Joel Wooten, Robert Killian, John Bell and Pam James continue to give. In 1995, the team of attorneys filed suit against Allied/LCP Plant on behalf of Glynn County. The company was found to have been knowingly polluting the Purvis Creek and Turtle River with PCBs and Mercury. The sites of the pollution became Georgia’s first Superfund Site, a site designated by the federal government as a locations of uncontrolled hazardous waste.

The case was settled in November of 2006 for a total of $50 million plus additional clean-up for the Glynn County water making it the largest environmental litigation in Georgia history. The outstanding work of this team of lawyers earned them the Ogden Doremus Award for Excellence in Environmental Law this past September.

And still this team of attorneys continue to serve this cause. Yesterday, December 11th, they presented $100,000 to several organizations involved in consumer and environmental protection.

Deborah Sheppard, the Executive Director of the Altamaha Riverkeeper one of the organizations to receive the donation said, “These funds will support the Altamaha Riverkeeper and the Altamaha Coastkeeper’s work to protect our coastal, estuary and marsh systems. We are fortunate to have attorneys whose skill and dedications created this legal victory which makes LCP accountable for their damage to the Glynn marshes. Their generous support of our coastal organizations is greatly appreciated.”

Justine Thompson of GreenLaw, another recipient of the donations said, “These attorneys filed this case back in January 1995 and began what was an epic twelve-year battle. We applaud their relentless pursuit of environmental justice on behalf of the health of our citizens, and are grateful for their gifts back to the community.”

Illinois Caps on Noneconomic Damages Struck Down by County Circuit Court

Judge Diane Larsen of the Cook County Circuit Court in Illinois declared the state’s law on caps on non-economic damages in medical malpractice cases unconstitutional last Tuesday, November 13th. The decision, Lebron v. Gottlieb Memorial Hospital, found that the caps, enacted by the Illinois legislature at $500,000 per case for doctors and $1 million per case for hospitals, intrude upon the responsibilities of the judicial branch of government—thereby violating the guarantee of a separation of powers.

The Illinois legislature has capped non-economic damages three separate times over thirty-one years—and the courts have found each of those efforts to be unconstitutional. Robert S. Peck of the Center for Constitutional Litigation, PC (CCL), argued the case for the plaintiffs. Also representing Abigail Lebron in the matter were Chicago lawyers Jeffrey Goldberg and Todd Smith, as well as CCL lawyer Francine Hochberg. This case will likely be appealed and heard by a higher court

The Ten Most Dangerous Toys

Today’s article, “Unsafe Toys on Shelves,” in the AJC lists the ten most dangerous toys according to Georgia Trial Lawyer and founder of Keenan’s Kids Foundation, Don Keenan. With the holiday season approaching, the attorney and advocate for children is hopeful the list will help families as they purchase gifts for their children.

Magnetix 75 Piece Assortment Collector’s Tin $19.99 by Mega Brands Ages 6+ Purchased at Toys R Us HAZARD: Potential for choking injuries. Magnets that are swallowed can connect in the intestines, resulting in tissue damage, infection, and death.

Rocket Pocket Miniature Electric Motorcycle $183.22 by Razor USA, LLC Ages 12+ years Purchased at Wal-Mart HAZARD: Potential for severe bodily injuries or death.

Heelys $29.99 - $79.99 by Heeling Sports LTD Ages 5+ Purchased at Kids Foot Locker HAZARD: Potential for severe head injuries and injuries to others.

Creepy Crawlers Bug Maker $19.99 by Flying Colors Ages 8+ years Purchased at Toys R Us HAZARD: Potential for electric shock and burn injuries.

Pirates of the Caribbean: At World’s End Sensor Sword with Magic Ring $17.99 by Zizzle Ages 5+ Purchased at Target HAZARD: Potential for eye and other bodily injuries.

Disney Princess Small Dolls - Favorite Moments $19.99 by Toys R Us Ages 3+ Purchased at Toys R Us HAZARD: Potential for choking, small pieces.

Lil’ Snoopy $7.99 by Fisher Price Age 1+ Purchased at Toys R Us HAZARD: Potential for Strangulation.

Elmo’s World: Talking Cell Phone $9.99 by Fisher-Price Ages 18+ months Purchased at Toys R Us HAZARD: Potentially dangerous levels of noise.

Yo-Yo Squeeze Toy $1.29 by Ja-Ru, Inc. Ages 4+ Purchased at KB Toys HAZARD: Potential for strangulation injuries.Hello Kitty Flavored Lip Balms and Nail Polishes $7.99 by Sanrio & Townley Cosmetics Age 5+ Purchased at Toys R Us. HAZARD: Contains the potentially toxic chemical Phthalate. Children can ingest toxins put on lips and fingernails.

To learn more about Keenan’s Kids Foundation and unsafe toys, you can find them on the web at www.keenanskidsfoundation.com

Lawyers Defend Justice in Pakistan

By: Jay Harvey
President of the Texas Trial Lawyers Association

There is an allegory in today’s news that Americans should note. For every person who has joked of lawyers at the bottom of the ocean, who has academically argued that America would be better if there were no more lawyers – there is a foreboding reminder in Pakistan of that for which they are truly advocating.

The protests in the streets of Pakistan this week are something different from others we have watched. The protests in the streets of Pakistan this week are lead by citizens armed only with their knowledge and commitment to the rule of law. The protests in the streets of Pakistan are lead by lawyers.

And the next time someone attacks our system of justice, its judges, and the lawyers that work to serve and protect it and their clients every day – remember this week in Pakistan.

The Voters in Washington State Cast their Ballots for Consumer Rights

All eyes were on the state of Washington yesterday. Consumer advocates around the nation waited anxiously as voters turned out to voice their opinions by casting ballots on Referendum 67. It seems that Washington, like many other places, has had problems with insurance companies denying or delaying fair and just claims. The referendum allowed the people to decide what should happen.

Referendum 67 basically stated that if an insurer, acting in bad faith, unreasonably denies a legitimate claim, that insurer could be liable for up to triple the amount of damages. An article in today’s Seattle Times said that the Insurance Industry spent a record-breaking $11,400,000 in an attempt to defeat the referendum. More than half of that amount came from the usual suspects-- State Farm, Farmers Group, Safeco Insurance and Allstate Insurance.

Trial Lawyers were among the Consumer Advocates supporting the bill. “Trial lawyers argued the new law would help level the playing field between consumers and insurance companies. They said that under present law, which only allows consumers to sue for actual damages, it benefits companies to lowball and drag out claims.”

Apparently the consumers agreed. Roughly 60% of voters approved Referendum 67. It would seem that unscrupulous business practices by insurance companies do indeed have consequences.

The Insurance Lobby has vowed to attempt to overturn the voice of the people in their next legislative session. But for now, the people of Washington State should enjoy their victory. The people have cast their ballots—and the rights of consumers have emerged victorious.

What could be scarier this Halloween?

Tonight on Anderson Cooper 360° prepare to hear a chilling story of lies and deceit as two everyday Americans are haunted by undercover agents in their own church.

Progressive Insurance willingly accepted the premiums that Bill and Leandra Pitts paid them each month for UM Insurance. After a car crash in Henry County that left the Pitts with injuries and damages not covered by the at-fault driver, they turned to their UM coverage to pay for what was left—the coverage that they had dutifully paid for every month.

Progressive Insurance, in an attempt to save a buck, hired two undercover private investigators to follow the Pitts in their community and to their church where the two agents posed as prospective members. Taking the deceit to incredible lengths, the two agents talked their way into a private Bible-study held in a private home and were privy to intimate and personal disclosures of the church members. Progressive hoped that they would discover something that would free them from covering the damages. But they didn’t.

The Pitts, after hiring GTLA member Wayne Grant, have filed suit against Progressive Insurance alleging that the company’s spooky tactics against their own clients went too far. Tonight, Anderson Cooper on CNN will look into the case.

Tragedy could have been prevented

Last week a Kentucky jury found in favor of plaintiff Louise Ogborn after she was sexually assusalted in a Louisville McDonalds in 2004.

Ogborn was the victim of a known hoax—that had occurred 40 times previously. At just 18 years old, Ogborn was victimized by a perpetrator impersonating a police officer. While at work, and under the perpetrator’s direction, Ogborn was held prisoner, sexually assaulted and abused for hours.

This tragedy could have been prevented.

McDonalds knew of the hoax and repeatedly ignored its duty to adequately warn the employees of at least 40 previous incidents. When McDonalds became involved in this Civil Justice case, they fought every step of the way against fair compensation for the victim.

The jury of Ogborn’s peers held McDonalds responsible for its negligence resulting in both Ogborn’s false imprisonment and sexual assault. Beyond those findings, the jury even went so far as to write to McDonalds urging that the corporation offer its employees more training concerning sexual harassment and hoaxes.

Our Civil Justice System ensures that people, like Louise Ogborn, who are the victims of the negligence or wrong-doing of others can seek justice and compensation for the harm they’ve suffered.

Louise Ogborn, now 21 years old, has decided to go law school. In a press conference it was said that she is going to law school so that she can work to right wrongs—just as the Civil Justice System promises in our Constitution—Justice for All.

Mom and child kicked off airplane

Tune in to Dr. Phil tomorrow, September 18th at 5:00 pm to hear more about the case of a mother and child who were kicked off an airplane because of a flight attendant’s intolerance.

Kate Penland and her 19 month old toddler, Garrin, both from Atlanta, set out to visit Kate’s father in celebration of Father’s Day on June 16th of this year. After sitting through a nearly 11 hour weather delay in Houston, they boarded their last leg, a Continental Flight to Oklahoma City. Garrin, the toddler, was understandably a bit irritable and tired. His mom, Kate attempted to divert his attention by pointing out the plane next to them through the window. As they pulled from the gate, Garrin said, “Bye-bye plane,” several times.

According to Ms. Penland, the flight attendant, Erika Sikorski, told Kate that she needed to "shut your baby up." Ms. Sikorski made it clear that she didn't want to deal with Garrin for the hour-flight to Oklahoma City. When Kate said she would do the best she could to quiet the child, Ms. Sikorski responded by saying, "It’s called Baby Benedryl!" Kate told the flight attendant that she was not going to drug her child. Ms. Sikorski said that they were bothering the other passengers. When the passengers disputed this, Ms. Sikorski said that the plane was "her plane" and she was in charge. She then apparently reported to the pilot that Kate had threatened her and needed to be removed from the plane.

With absolutely no investigation or verification by the pilot, it was announced that they were returning to the gate and that Kate and Garrin would be removed from the flight. The mother and her toddler were taken from the plane and stranded, again, in Houston until the next day. Ms. Penland said that she requested to retrieve her checked baggage so that she could provide care to her toddler and to herself and was refused.

Kate Penland attempted to contact Continental Airlines several times and was ignored. She then asked for help from GTLA member Steve Goldman and he is now representing her. Tomorrow on Dr. Phil, Kate Penland will tell her story.

When this story first broke, similar stories began to emerge about Passengers' Rights on an airplane-- especially in this post 9-11 world. For more information regarding what is being done on Federal level to address these concerns visit The Coalition for Airplane Passenger Rights.

The Civil Justice System Works

Georgia Trial Lawyers Association
Media Release
(404) 376-3495, Rebecca DeHart

Atlanta-- The administrative law judge, Roy Pearson of Washington DC, who sued a drycleaners over a pair of lost pants—lost in court today. He was ordered to pay all of the court costs that the owners of the drycleaners incurred throughout the ordeal.

This news comes as no surprise to the President of the Georgia Trial Lawyers Association (GTLA), Joe Watkins. “Just as we anticipated, the Civil Justice System worked. The Judge presiding over the case ruled in favor of the drycleaners—and against the man at the center of this ridiculous business dispute.”

Pearson filed suit against the drycleaners for $54 million after alleging that they lost a pair of his pants. “The suit itself was ludicrous. As an attorney for 30 years, I am aware of the dangers that this type of sensationalism can generate. The general public cannot help but be engrossed in its details. Now that the decision has been reached, the general public can bask in what is just another example of the Civil Justice System accurately and fairly working for us all,” said Watkins.

The attorney representing the drycleaners was Chris Manning, a member of the American Association for Justice (AAJ), the national affiliate of GTLA. AAJ has been sharply critical of Judge Pearson’s lawsuit. In April, AAJ CEO Jon Haber called on the District of Columbia Bar Association to conduct a disciplinary investigation of Judge Pearson for his conduct in this matter. Haber and AAJ President Lewis “Mike” Eidson pledged to support the defendant’s defense fund and encouraged the AAJ membership to also contribute.

Judge Bartnoff, who presided over the case, ordered Pearson to pay the court costs of defendants Soo Chung, Jin Nam Chung and Ki Y. Chung, the owners of the drycleaners.

“It is our hope that the resolution of this case garners as much media attention as it did when it was filed. The public deserves to know how the Civil Justice System works on their behalf,” said Watkins.

# # #

A Lost Pair of Pants

By: Joe Watkins
President of the Georgia Trial Lawyers Association

Reading and hearing about the D.C. Administrative Law Judge who is suing his dry cleaners over a pair of lost pants is distressing, to say the least. It's obviously ridiculous, but this lawsuit is not only silly -- it's dangerous.

Cases like this give lawyers a bad name. Big Business and others who are out to dismantle the Civil Justice System jump all over these tabloid-like stories as proof of why we need to eliminate corporate accountability. They say our legal system is out of control. One lawsuit like this one automatically makes every lawsuit "frivolous." And nothing could be farther from the truth.

As an attorney for 30 years and as President of the Georgia Trial Lawyers Association, I am aware of the dangers that this type of sensationalism can generate. The story is so far-fetched that the general public cannot help but be engrossed in its details.

What the public does not get to hear enough about are the everyday cases that go in front of judges and juries that uphold the Constitution's promise of justice for all. More truly newsworthy are cases that have assisted in pulling dangerous pharmaceuticals off the shelves of drugstores, cases that have forced clothing manufacturers to discontinue flammable children's pajamas, and cases that led to greater ingenuity in auto manufacturing when side-saddle gas tanks were found to be explosive. These are just a few instances among many where the Civil Justice System protects us all.

The public also rarely sees stories about the lawyers who are compassionate and generous community leaders. For example, Scott Delius, an Atlanta trial lawyer, is voluntarily serving in Afghanistan and assisting in the building of a criminal justice system there. He also has begun a charitable donation effort to collect clothes and toys for the Afghan children he has met. Gary Hays, another Atlanta trial lawyer, has done incredible fundraising for cancer research through his "I Will Make A Difference Campaign." Giving back to the community -- wherever that may be -- is a proud tradition of our profession.

The case of the missing pants most likely will continue to get press in the weeks to come as it awaits a hearing. When this ridiculous case gets before a judge, I am confident it will be dealt with in a manner that will make us proud of our Civil Justice System. Let's hope the media fully reports the result in this case, so that all can see, accurately and fairly, how our Civil Justice System truly works for us all.