Friday, September 16, 2011

Study contradicts med-mal 'reform' arguments

This from the American Association of Justice:

Less than a quarter of the claims that doctors filed with an insurer seeking coverage for medical malpractice liability resulted in payments to the patients who alleged harm, according to a study published in the New England Journal of Medicine. The low rate of payments shows that insurers deny far more claims than they pay--and that the so-called medical malpractice crisis is nonexistent, plaintiff lawyers say.

The study, "Malpractice Risk According to Physician Specialty," looked at data between 1991 and 2005 for all the physicians covered by one national insurer. It found that while 7.4 percent of physicians faced a malpractice claim annually, only 1.6 percent had a claim that led to a payment. Seventy-eight percent of claims did not result in payments. The study considered only claims filed with the insurer, not lawsuits filed in court.

"What this new study tells us is that the supposed wave of malpractice payments is actually a myth that has been built up by the scare tactics of insurance companies and tort 'reform' groups," said AAJ President Gary Paul in a statement.

Denver lawyer Jim Leventhal agreed. To recoup their losses in the real estate and stock market, insurers have "increased premiums on physicians and blamed it on lawsuits," he said, adding that this misrepresentation of lawsuits' impact comes "at the unfair expense of physicians and patients."

The study authors noted that the factors that drive the likelihood of a claim are independent of the factors that affect payment size. Doctors in certain high-risk specialties, like neurosurgery, were more likely to face claims, but those claims were not more likely to result in payments, and those payments were not larger than those for physicians in lower-risk specialties.

The discrepancy between claims and payments reinforces the argument against damages caps in med-mal cases, Leventhal said. He noted that although tort "reformers" say caps lower malpractice insurance rates, states with caps often have higher rates than those without caps.

The study highlights the "absolute unfairness of caps, which make it financially impossible for catastrophically injured patients or families of patients who have died to pursue claims because the cost of going forward exceeds what their state allows them to collect," he said.

"A strong civil justice system offers injured patients the ability to hold negligent providers accountable and increases patient safety to help prevent negligence before it occurs," Paul said.

"Instead of allowing insurance companies and tort reform groups to perpetuate these myths, we should focus on patient safety as a proven way of reducing claims and saving lives."

Thursday, August 04, 2011

Medically Incompetent Doctors Flee to Texas

Scary. Very scary.

From KRIS Corpus Christi and Texas Watch:

Corpus Christi neurosurgeon Stefan Konasiewicz is on trial in Minnesota this week for medical malpractice. Konasiewicz left a trail of medical incompetence in Minnesota that has resulted in nine medical malpractice lawsuits, some involving patient deaths, as well as a public reprimand by the Minnesota Board of Medical Practice.

Rather than face the music in Minnesota Konasiewicz fled to Texas where lax oversight and a broken legal system allow bad doctors to keep seeing patients, turning our state into a safe haven for dangerous doctors like Konasiewicz.

The Texas Medical Board, which is tasked with policing the medical profession, isn’t required to disclose – or even look into – cases of medical malpractice when a doctor moves from another state. So, patients have no way of knowing what their physician’s track record is. On top of that, if you are injured (or worse), the law is structured such that most patients and their families have no way of seeking justice through the legal system.

That’s right, Texas has a virtually impenetrable layer of legal protection that allows doctors to avoid legal accountability after a patient has been harmed. In 2003, lawmakers enacted severe and arbitrary restrictions on the ability of patients to sue a dangerous doctor or careless hospital for medical malpractice. This has made it practically impossible for most patients to bring a case against a dangerous physician in our courts.

Advocates have long feared that after patients lost the ability to sue a doctor for botching a surgery or otherwise negligently maiming them physicians like Dr. Konasiewicz would seek refuge in Texas. Looks like their fears are warranted.

Our feckless medical oversight board is coupled with a broken accountability system that punishes patients instead of the few bad doctors who cause most of the harm.

The TMB doesn’t check to see if a doctor moving from another state has a track record of maiming or even killing patients. Instead, they rely on physicians to self-report those cases. And, what if the doctor doesn’t tell them they have a history of medical abuse? Well, the board doesn’t know and the public is left in the dark. The agency could query the National Practitioner Data Bank which compiles information about doctors – including malpractice history – from state medical boards, but they don’t. Why not? Here’s how the folks at the Duluth News Tribune reported it:

Konasiewicz received his license from the Texas Medical Board in 1997 and is required to renew it every two years, [TMB spokesperson Leigh] Hopper said. She said the board is supposed to review a doctor’s malpractice and disciplinary action when it renews a license, but she couldn’t say if that happened with Konasiewicz.

“It’s actually possible that the board doesn’t know about all the medical malpractice cases in another state,” she said.

All state medical boards have full access to the National Practitioner Data Bank, which lists malpractice cases and disciplinary actions taken against doctors. But Hopper said that because the Data Bank charges for queries, it would cost the state of Texas too much — she estimated $160,000 a year — to check on every doctor licensed in the state.

“We might query it as part of an investigation, but it won’t be a source to start an investigation,” Hopper said.

The ultimate responsibility of disclosing malpractice cases is on the doctor, Hopper said.

“If the doctor doesn’t want to tell us and is not truthful when he renews his license, then we’re not going to find out about it, either,” she said.

Evidently, the safety of Texas patients is worth something less than $160,000.

Even though officials at the TMB are now aware of Konasiewicz’s dangerous track record, they have taken no action to strip, suspend, or even restrict his license to practice here. However, officials in Minnesota and Wisconsin have acted to restrict his license.

So, doctors with a history of harm – like Stefan Konasiewicz – get a two-fer in Texas: (1) they get to erase the harm they’ve caused in the past because of lax oversight, and (2) they avoid accountability for harm they cause in the future. If you are a doctor with a penchant for committing malpractice, wouldn’t you move to Texas too?

Monday, June 27, 2011

Going to Hospital in July Could Kill You!

Just a note to pass along for the upcoming weekend as we celebrate July 4th--BE SAFE and avoid the hospital!

A recent study published by the Journal of General Internal Medicine reported a 10 percent spike in teaching hospital deaths during the month of July due to medical errors. CNN reports on the effect--here's an excerpt:

Typically, medical students graduate in June and begin their first year of residency training — internship — in July. This group of eager new interns invades the hospital to learn, care for patients, and make medical decisions. One problem. They don’t know what they’re doing.

Like most interns, I arrived with four years of medical school under my belt, an M.D. after my name, and virtually no practical knowledge of medicine. Although I wore the long white coat of a doctor, I kept my pockets packed with condensed medical manuals that we called our “peripheral brains” to make up for the lack of knowledge held in my actual brain. Thank God for these manuals. Otherwise I would have been part of “The July Effect.”

Friday, June 03, 2011

Texas's Medicare Spending Has Gone UP Since Tort Reform

Tort reformers and Gov. Perry tout the success of Texas's medical malpractice tort reform as a cost control measure. But, this article from the Washington Post shows that Texas spending on Medicare has actually gone up since 2003:
For instance, we could look at Texas, where non-economic damages on malpractice lawsuits were capped at $250,000 about eight years ago. You might remember when Rick Perry and Newt Gingrich said:
Texas, for example, has adopted approaches to controlling health-care costs while improving choice, advancing quality of care and expanding coverage. Consider the successful 2003 tort reform.

So what happened to costs of care after that law was put in place? Public Citizen analyzed just that (pdf) using data from the Dartmouth Atlas of Health Care (Selected Medicare Reimbursement Measures):

Texas is blue, the nation is red, and the law went into place at the dotted line. If anything, Texas’s Medicare spending seems to have gone up faster than the nation’s since 2003. Hardly a persuasive argument for tort reform = cost control.

And this is what Gov. Perry wants to share with the rest of the country by being the next President???

Thursday, May 19, 2011

Avandia-Being Pulled from Pharmacies by FDA

The U.S. Food and Drug Administration announced Wednesday that it would restrict access to GlaxoSmithKline PLC's diabetes drug Avandia and pull it from retail pharmacies because of the drug's link to increased risks of heart attack and stroke.

After Nov. 18, Avandia will no longer be available at pharmacies, and doctors and patients will need to enroll in an FDA program in order to prescribe and receive the medicine, according to the agency.

Tuesday, May 10, 2011

Call Your Senator Now: Loser Pays is really Winner Pays

The Texas House just passed the "Loser Pays" bill without any debate. In reality, a "winner" in a lawsuit could end up owing the "loser" money! We can stop this now if you contact your Texas Senator and give him or her this example courtesy of my colleague Steve Waldman:

The "Loser Pays" bill that was just ramrodded through the Texas House, without debate, should be called "Winner Pays." If this bill becomes law, the winner of the lawsuit may have to pay the loser's attorney's fees. There is no cap on the amount the winner has to pay. A plaintiff - and this includes a small business - can win a lawsuit and go bankrupt. The following scenario can actually happen:

1. Joe's Lawn Service ("Mom and Pop" small business) buys 10 Hodna (company name changed to protect...) tractors at a cost of $100,000.

2. The tractors do not work, costing Joe to lose most of his landscape business.

3. Joe sues Hodna for the $100,000 cost of the tractors plus $50,000 in lost profits.

4. Hodna offers Joe $80,000 to settle. Joe turns it down because he has lost $150,000.

5. Joe goes to trial and wins $60,000. The jury finds Joe had 40% of the use of the tractors, and the judge disallows Joe's lost profits claim on a technicality.

6. Because Joe won less than 80% of Hodna's offer, he has to pay Hodna's attorney's fees and litigation expenses.

7. Hodna's lawfirm has assigned one senior partner ($750/hour), one junior partner ($450/hour), two associates ($250/hour each) and a three paralegals ($100/hour each) to defend the case, and has run up $350,000 in legal fees and litigation costs.

8. Joe is awarded $60,000, less Hodna's $350,000 in legal fees. In other words, Joe has won his lawsuit but owes Hodna $290,000!

9. Joe files for bankruptcy.

This can really happen. The current Offer of Settlement rule, Civil Practice Code Section 42.004, subsections (d) and (g) limit the shifting of fees to a reduction of the plaintiff's damage award. Subsections (d) and (g) are repealed by HB 274 - making the amount of fees the winner has to pay the loser unlimited. Under HB 274, a plaintiff can win his lawsuit and end up financially destroyed.

The "tort reformers" seek to limit lawsuits for personal injuries and wrongful death. How do they explain this result to small business owners?

The moral of the story being told by the advocates of this bill is this:

If you have a claim against a big corporation, take whatever they offer, because if you dare to take them to a jury, you risk your economic life.

Call and email your state senator. Repealing CPRC 42.004 (d) and (g) turns "loser pays" into "winner pays." Tell your senator to oppose the repeal of CPRC 42.004 (d) and (g)!

"Winner Pays" is unfair for Texans!

Monday, April 25, 2011

Supreme Court May Hear Military Med Mal Challenge

There is hope that the U.S. Supreme Court will hear a case that could allow military personnel who are victims of medical malpractice to sue military medical providers.

This is a sad and horrible case in which Air Force Staff Sgt. Dean Patrick Witt was hospitalized in 2003 for what should have been a routine appendectomy at Travis Air Force Base in Fairfield, Calif. After surgery, a nurse anesthetist inserted a breathing tube into his esophagus instead of his trachea or airway, depriving his brain of oxygen. Witt, of Oroville, Calif., died after his family removed him from life support three months later.

Current law protects the military and prevents Staff Sgt. Witt's family from receiving any justice for this malpractice. Veterans, military families and others who oppose the decades-old law, the Feres Doctrine, that shields military medical personnel from malpractice lawsuits are rallying around a case they consider the best chance in a generation to change the protection.

"We labored on this for a long, long time, and we decided that the right thing to do here was to protect the rights of other people who go into the military and are signing away their rights to get good health care in the military system," said Witt's brother-in-law, Carlos Lopez, of Salt Lake City. "So we're hoping, we're praying, that his case could be the one that changes everything."

Wednesday, April 13, 2011

Speak Up--Whether it's a Doctor or a Cab Driver!

I thought this piece by Maureen Dowd was very sobering and very funny. We are so afraid to speak up sometimes that it costs us our lives:

When my brother went into the hospital with pneumonia, he quickly contracted four other infections in the intensive care unit.

Anguished, I asked a young doctor why this was happening. Wearing a white lab coat and blue tie, he did a show-and-tell. He leaned over Michael and let his tie brush my sedated brother’s hospital gown.

“It could be anything,” he said. “It could be my tie spreading germs.”

I was dumbfounded. “Then why do you wear a tie?” I asked. He shrugged and left for rounds.

Tuesday, April 05, 2011

6 Famous Frivolous Lawsuits that are B.S.

"The great enemy of the truth is very often not the lie -- deliberate, contrived and dishonest, but the myth -- persistent, persuasive, unrealistic." John F. Kennedy

Here is a site that dispels many of the email forwards and that "I heard that" stories about lawsuits. Unfortunately, the truth often times is merely something that is repeated over and over again.

Friday, March 18, 2011

The Sixth Biggest Killer in America

What is the sixth biggest killer in America? Car wrecks? Cancer? Heart attacks? No, it's medical errors...

Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. Any discussion of medical negligence that does not involve preventable medical errors ignores this fundamental problem. And while some interested parties would prefer to focus on doctors’ insurance premiums, health care costs, or alternative compensation systems—anything other than the negligence itself—reducing medical errors is the best way to address all the related problems. Preventing medical errors will lower health care costs, reduce doctors’ insurance premiums, and protect the health and well-being of patients. has the full story.

Wednesday, March 02, 2011

Zimmer NexGen Defective Knee Replacements

Zimmer NexGen CR-Flex Porous Femoral components and Zimmer NexGen LPS-Flex artificial knee replacements have been associated with high incidences of significant pain and loosening of the replacement knee, leading to the failure of the knee replacement, revision knee surgery or other knee surgery complications.

In March 2010, data was presented by a group of prominent knee surgeons indicating nearly 9% of patients examined after two years required revision knee surgery and 36% showed signs of loosening of the cement-less CR Flex artificial knee. These failure rates are higher than expected and are believed to be due to design defects. Based on the high number of calls we have received, we believe other models of the Zimmer NexGen artificial knee may also be defective and will ultimately be recalled.

On July 29, 2010 Senator Charles Grassley (R-Iowa) issued a letter to Zimmer Holdings regarding problems with certain models of the Zimmer NexGen knee replacement system, indicating that the Senate Finance Committee was investigating the product’s safety.

  • Replacement
  • Fracture
  • Loosening Popping
  • Infection
  • Pain

A study published in the American Academy of Orthopaedic Surgeons Conference in March, 2010 documented the high failure rate of the high flex (CR Flex) total knee design, and studies as early as 2007 have discussed the high incidence of loosening of the NexGen LPS Flex knee replacement system.

If you or someone close to you has had a revision of a Zimmer NexGen CR Flex or LPS Flex knee replacement, or if you are currently experiencing pain or loosening of these knee replacement systems or components, call the personal injury attorneys at Thomas & Wan for a free consultation and case review.

FDA: Multaq and Liver Failure

According to an FDA Safety Announcement, the potential side effects of Multaq, a prescription drug used to treat abnormal heart rhythm, may be linked to an increased risk of acute liver failure or other liver problems.

See the FDA WARNING: Severe Liver Injury with Multaq

Multaq (dronedaron) is a new medication that was just approved in July 2009. It is used to treat patients who have had an abnormal heart rhythm during the past six months, such as atrial fibrillation or atrial flutter. Although it has only been on the market for a short period of time, nearly 150,000 people in the United States filled a prescription for the heart drug as of October 2010.

The FDA has received a number of reports of heptocellular liver injury and hepatic failure among users of Multaq, including at least two cases of acute liver failure from Multaq that resulted in the need for a liver transplant.

The two cases of Multaq liver failure occurred within the first six months of use (4.5 months and 6 months). The patients were both females approximately 70 years old with previously normal hepatic serum enzymes.

Liver problems are very serious and potentially fatal. Individuals who are taking Multaq should be aware of the potential signs and symptoms of Liver problems that may be related to the use of the drug. Potential signs Multaq liver problems include:

Dark urine
Right upper quadrant pain

New warnings and information will be added to the label about the potential risk of a Multaq liver injury, and the FDA is continuing to review reports of other Multaq problems submitted through their Adverse Event Reporting System. Patients taking Multaq have been advised to speak with their doctor about any concerns about Multaq side effects, but the medication should not be stopped unless under a doctor’s direction.

We are currently reviewing cases of liver failure from Multaq use. Please call us immediately at 713-529-1177 or fill out the form to be contacted for FREE advice on your legal rights.

Tort Reform Hurts The Most Injured

A sad and chilling example of why tort reform hurts those that are the most injured. Seriously, any refinery worker in Texas needs to know that they really have no recourse if they are burned, maimed, killed, etc. by the negligence of the refinery. Because of tort reform, we have to turn these potential clients away all the time. People seem to have a mistaken belief that you can sue when you are injured by the negligence of others--well, thanks to "tort reformers," you really can't do that in Texas. Sad, but true.

Next time you are injured from negligence, don't call a lawyer, call Rick Perry and your Congressman/woman and tell them that insurance and corporate greed is literally killing good, decent workers.

Friday, February 18, 2011

Tort Reform is Attack on 7th Amendment and State's Rights

Why is Congress tearing apart the 7th Amendment and striking down State's Rights with H.B. 5? House Bill 5 is the so-called tort reform bill that barely made it out of the Judiciary Committee to limit meritorious lawsuits against health providers.

Maybe it's because the sponsor of the bill has been sued multiple times himself for medical malpractice...the NY Times and Mother Jones has the full story:

Case in point is one of the very congressmen sponsoring the bill, Rep. Phil Gingrey (R-Ga.). In 2007, the New York Times reports, Gingrey, who is a doctor, settled a lawsuit for $500,000 in a case involving a pregnant woman whose appendicitis Gingrey and others failed to diagnose. Her appendix burst, causing a massive infection that left her unborn child dead and the woman partially disabled after she suffered a stroke as a result.

That wasn't the only time Gingrey has been sued. The Times writes:

In a pretrial deposition, Dr. Gingrey testified that he had been sued at least three other times over malpractice during his long career. In one case, a jury found against him; in another case, there was a settlement; and in another case, the patient dropped the action, he testified.

It's no suprise that the doctors who get sued a lot are the ones who complain the loudest about "frivolous" lawsuits. But the case against Gingrey seems anything but frivolous. But it's just those sorts of serious cases that Gingrey's bill would restrict. And far from saving money, the bill would simply shift the cost of negligent medicine from the doctors and their insurance companies to the taxpayers through Medicaid and other disability programs. Private health insurers also can often recoup their costs for covering malpractice injuries through those lawsuits. Catastrophic injuries like the one suffered by Gingrey's patient profiled in the Times tend to bankrupt people, leaving them reliant on government health care, and the costs can be significant.

Wednesday, February 16, 2011

Insurance Company Won't Pay Out--Even in Hockey!

Just another example that confirms all our suspicions about insurance companies...

During intermission at a recent game, the USHL's Indiana Ice held a contest where a fan tries to score a length-of-the-ice goal for $50,000. One man, who said if he won would give the money to charity, succeeded, but was told him his goal didn't count because he was over some line and the insurance company who sponsored this challenge didn't pay out the prize. The Indiana Ice, however, did make a donation to charity.

The full story is below...even more telling is that Allstate apparently turned around and blamed a third-party insurance company for being the bad guy. I mean, the name of the contest was Allstate Good Hands Shootout--yet Allstate claims it was someone else that should have paid--sound familiar? That happens all the time in lawsuits--it's called "subrogation" (really, passing-the-buck).

Here's the full blow by blow:

On Saturday night at the Pepsi Coliseum in Indianapolis, Richard Marsh stood at one end of the rink and stared down at the opposite goal, which was covered by a board with a small opening for a puck to slide through.

The USHL's Indiana Ice were holding a special "Hockey for Heart" night sponsored by St. Vincent Heart Center of Indiana. If Marsh scored on this extraordinarily difficult rink-length shot in the team's Allstate Good Hands Shootout, $50,000 would be donated by Allstate to St. Vincent's Cardiovascular of Indiana and the American Heart Association.

After the Ice's mascot took an inspirational heave of the puck down the ice, Marsh took his shot ... and sent the puck through the board into the net. Check it out (no sound on the video, FYI):

Here's another look at the goal.

Here's the remarkable part: Marsh could have kept the money if he won, but decided before he even took the shot that if he made it, he was going to donate it all to charity. There was just one prize of $50,000; all of it was going to St. Vincent's Cardiovascular of Indiana and the American Heart Association.

Awesome, right?

One problem: Marsh didn't completely follow the rules.

According to the USHL, Marsh was "standing in front of the designated starting line" when he released the shot, and thus "the insurance company voided the award due to Marsh" standing in the wrong place. Which makes it a real killjoy. Isn't there some sort of exception for ridiculous goals scored by guys who look like substitute physics teachers?

(Clarification: There's been some vitriol in the comments regarding AllState, so we contacted the USHL about its role in the matter. Sure enough, Brian Werger of the USHL said the initial release from the League didn't clearly state the fact that a third-party insurance company hired to cover this event at Ice games, and not Allstate, was the one that made the call not to pay out the $50,000.)

With that, it was Paul and Cindy Skjodt to the rescue. The Indiana Ice owners, who are credited with keeping the franchise alive in Indianapolis, "made a donation in recognition of the accomplishment" to the charities, according to the USHL. The amount of the donation was not disclosed.

All in all, a heartwarming tale. Mascot hugs for everyone.

Tuesday, February 08, 2011

Malpractice Reform Rests on Thin Evidence

From Texas Watch:

Washington lawmakers who advocate for medical malpractice reform assume they know what goes on in doctors’ offices. They say physicians order unnecessary tests because they fear being sued. So-called “defensive medicine” drives up health spending, the argument goes.

They don’t acknowledge many doctors order tests because they’re trying to do a thorough job with patients. They rarely mention too much testing is a result of this country’s “fee for service” system of paying doctors. The more care they provide, the more they bill.

Yet proponents of tort reform continue to call for changes in the law – usually caps on the amount of money in non-economic damages patients can collect in a malpractice lawsuits. Even if that did drive down the price of insurance for doctors, that doesn’t mean the savings would be passed on to consumers. It wouldn’t automatically lead to reduced health costs.

Read More: Des Moines Register

Monday, January 31, 2011

Hot Coffee!!!!

Yes, yes, we all know about the hot coffee case. But do you really know the truth?

A documentary is in the running at Sundance Film Festival called Hot Coffee, and it explores not only that case but three other lawsuits in which seriously injured people are denied their rights under the current legal system.

Many people have no idea how we as Americans are being manipulated by powerful interests, and we are losing our rights to fairness and justice under so-called "tort reform." We are giving away our 7th Amendment rights and we don't even know it.

I haven't seen the movie yet, but here's a trailer and discussion:

The civil justice system has been under heavy attack for over 25 years.

Despite the fact that federal legislation has never been successful, big business interests have won in the hearts and minds of average people. They launched a public relations campaign starting in the mid-80’s and continuing over the last two decades to convince the public that we have out of control juries, too many frivolous lawsuits and a civil justice system that needs reforming. They have used anecdotes, half-truths and sometimes out and out lies in their efforts, for one purpose – to put limits on people’s access to the court system, the one and only place where an average citizen can go toe to toe with those with money and power and still have a shot at justice.

Because of the success of the public relations campaigns, paid for by tobacco, pharmaceutical and insurance companies, to name a few, our civil justice system is not impartial. Jurors have been brainwashed into believing that a large verdict will affect their pocketbooks. Voters believe that we have a court system out of control that needs reforming. Although there are consumer advocacy groups who have attempted to set the story straight, there has yet to be enough money to launch the kind of public relations campaign for consumers that can even begin to combat and challenge the public relations campaigns of pro-business and tort reform groups. Over the last few years, however, documentary films and independent film festivals have become a vehicle for alternative ideas to get a public forum.

Because almost everyone has heard about the McDonald’s coffee case, and most people believe they know what it’s about, this project has a fascination for people. Of course, we go much further into the debate than just the McDonald’s coffee case, but the case is a vehicle for people to think about their long held beliefs and whether they are valid. We think this movie has the potential, with the right funding and effort, to really change the way people think about our civil justice system and access to the courts.

Friday, January 28, 2011

Why is Obama attacking the Constitution?

This is a brilliant blog entry from 7th Amendment Advocate Blog about the absurd idea of federal tort reform mentioned by President Obama in his State of the Union:
I'm disapppointed that the President and the sponsors of H.R. 5 have targeted this sector of the Constitutionally protected civil justice system for a federal takeover. When Pres. Obama raised it during the SOTU, conservative commentator Ramesh Ponnuru immediately called it "one of the Republicans' crummiest ideas" and added, "There's no need for a federal takeover of medical-malpractice rules." EXACTLY. But apparently the President and senior members of the GOP (the party of "limited government") now aim to limit your 7th Amendment right by using a government mandate, exactly what the GOP opposes in ObamaCare. Bizarre.

Here are a set of reasons why Tea Partiers, Constitutional conservatives, Main Street Republicans and Blue Collars should vigorously oppose H.R. 5 and any federal law limiting medical malpractice lawsuits:

1. The Constitutional basis for medical malpractice tort reform is also the basis for ObamaCare, and both violate the 10th Amendment's protections of states' rights. When he introduced H.R. 5, Rep. Phil Gingrey cited the language of the Commerce Clause: of the Constitution. I wrote about the abuse of the Commerce Clause of the Constitution in separate posts on December 6, on December 14, and on January 4. Simply put, the pro-medmal-reform and pro-ObamaCare forces depend on the theory that the Commerce Clause trumps the protection of individual and states' rights in the Bill of Rights. That's a formula for a slide into dictatorship. And as I wrote on December 6, Founding Father George Mason foresaw the holes in the Constitution and argued against ratification of the Constitution without a Bill of Rights.

2. A better name for any such bill is the "Abortion Butchers & Sexual Abusers Civil Immunity Act of 2011." If enacted, doctors who kill babies and their mothers (see the Gosnell case) could leave jail after their sentence is up, then stop by the bank to pick up their blood money and start over. Why would a pro-lifer (like me) ever want to limit the amount of money an abortion victim could take from killers and butchers in a civil suit?! And it even protects doctors who commit intentional torts, such as sexual abuse! The broad scope of H.R. 5 also protects bad drug and device companies which have been criminally prosecuted.

3. The bill does nothing to stop medical malpractice, which kills up to 100,000 Americans annually and injures up to ten times that number. The bill doesn't improve hospital hygiene, medical records technology, or any other medical practice. Medical malpractice lawsuits can't exist if there's little or no medical malpractice.

4. We have a medical malpractice crisis, but not a medical liability crisis. The number of medical malpractice claims has been headed down - yes, DOWN - for years, down 15 percent from 1999 to 2008. The insurance industry's own data reveals that the amount they've paid out for malpractice claims dropped by over 40% between 2002 and 2008, when adjusted for inflation. H.R. 5 is like fixing a flat tire by emptying the radiator. It misses the point and attacks a non-problem.

5. This bill would increase government spending, because those unable to hold wrongdoers accountable will become dependent on Medicare and Medicaid for payment of their medical costs. The taxpayers will be forced to pay for incompetent doctors and for drugmakers' and medical device manufacturers' faulty products.

6. Why would the GOP immunize industry groups which endorsed ObamaCare and enabled its enactment? The AMA and Big Pharma gave us ObamaCare's unconstitutional mandate, budget-busting spending hikes, and huge tax increases. THANKS FOR NOTHING.

7. Medical malpractice today, religious liberty and gun rights tomorrow? There is no differentiation regarding medical malpractice lawsuits under the Constitution. This would be the same as capping damages in suits against schools firing Christian professors or limiting the size of gun clips.

8. The Founding Fathers were never for tort reform. Back in September, I offered to buy the best dinner in Washington to anyone to shows me just ONE pro-tort reform quote by any Founding Father. I've had no takers and I'm not worried, because none of them proposed limiting our 7th Amendment rights.

To the contrary, the Founding Fathers endorsed and protected the "unalienable right" that a citizen could bring civil claims to a local court of law, before a jury of peers. That right had been expressly recognized in British law for centuries, back to the signing of the Magna Carta in 1215.

Wednesday, January 19, 2011

GlaxoSmithKline's $3.4 Billion Charge on Avandia

GlaxoSmithKline is taking a huge hit in the amount of $3.4 billion that it is charging off due to the litigation and settlement involving its diabetes drug Avandia. The drug is known to cause heart attacks and apparently GSK's former CEO knew about it way back when.

When will companies learn that it is cheaper to do the right thing that get slapped for doing the wrong thing?

Bnet has more:

GlaxoSmithKline (GSK)’s $3.4 billion legal charge on the diabetes drug Avandia probably isn’t the last of the costs the company will record against this drug. That means Avandia will probably be a loss maker for GSK, proving that former CEO Jean-Pierre Garnier’s 1999 failure to follow up on worries about heart attack deaths associated with Avandia was a strategic disaster for the company, costing it billions in actual dollars and billions more in lost-opportunity dollars.

When the dust has settled, GSK would probably have been better off stashing its development and marketing costs in a savings account rather than spending them on Avandia, some back-of-the-envelope math reveals.

Picking through GSK’s disclosures, two things emerge:
  • The charges aren’t over yet even though GSK suggested in previous statements that the “substantial majority” of its Avandia problems were dealt with.
  • When all is said and done, GSK will probably have lost money on Avandia even though it earned more than $16.3 billion in revenues during its lifetime.

Friday, January 14, 2011

Lawyer v. Adjuster

This is just a funny video...and true...I feel for my colleagues on the insurance defense side...

Wednesday, January 12, 2011

Could it be...Satan?

Interesting oral argument yesterday in the Zicam litigation brought by its shareholders relating to corporate disclosures. Satan, Scalia and anosmia...quite a lively discussion. The New York Times has more:
What do you think about Satan?” Justice Scalia asked a lawyer for the government, who was just starting his argument.

The case, Matrixx Initiatives v. Siracusano, No. 09-1156, was a class action against Matrixx Initiatives, an Arizona company accused of committing securities fraud by failing to tell investors of reports that its main product, a nasal spray and gel called Zicam, might have caused some users to lose their sense of smell. The condition is known as anosmia.

After a link between Zicam and anosmia was reported on “Good Morning America” in 2004, the company’s stock dropped 24 percent. In 2009, the Food and Drug Administration warned consumers not to use the products, which had been sold as over-the-counter homeopathic medicines, and Matrixx recalled them.

Satan came into the case by way of analogy. Matrixx contended that it should not have been required to disclose small numbers of unreliable reports of adverse effects, which were all it said were available in 2004.

“For years many consumers would not purchase products from Procter & Gamble because of a ridiculous rumor that the company was Satanic,” Matrixx said in a recent brief. “But no decision of this court bases securities-law disclosure obligations on how ignorant or paranoid people might react to unreliable or even false information.”

The Supreme Court has said that companies may be sued under the securities law for making statements that omit material information, and it has defined material information as the sort of thing that reasonable investors would believe significantly alters the “total mix” of available information.

Much of the argument revolved around whether reasonable investors would want to know about false and outlandish assertions like the one about Satanism so long as the assertions might affect the price of securities.

“A reasonable investor is going to worry about the fact that thousands of unreasonable investors are going to dump their Matrixx stock,” Chief Justice John G. Roberts said.

Justice Scalia disagreed. “It seems to me ridiculous to hold companies to irrational standards,” he said.

Though the justices were divided about how to handle reports of Satanism and the like, Matrixx did not appear to get much traction for its main argument — that a failure to disclose reports of adverse effects should give rise to securities fraud liability only if the reports were collectively statistically significant.

Full story here.

Monday, January 10, 2011

Zicam to Argue Before U.S. Supreme Court Today

Matrixx Initiatives, the makers of Zicam, will argue today before the U.S. Supreme Court regarding what drugmakers, medical companies and other businesses tell investors about their products.

The issue involves whether Matrixx Initiatives violated securities laws when it didn't tell investors that some consumers complained that they lost their sense of smell after using Zicam Cold Remedy nasal spray and gel swabs.

The case is Matrixx Initiatives v. Siracusano, and the SCOTUS info and briefing is here.

The Arizona Republic has more:

Drugmakers, biotechnology groups and other business interests have lined up behind Matrixx Initiatives, arguing that widespread disclosure of medical complaints from people who take drugs or use medical devices would confuse investors and consumers. The U.S. Securities and Exchange Commission, AARP and others have sided with a Decatur, Ill.-based pension fund that sued the company.

The nation's high court will hear oral arguments today in the case, Matrixx Initiatives vs. Siracusano, and is expected to issue a ruling during its term that ends in June.

This case may outlast the company. Matrixx last month struck a $75.2 million deal to sell to a Miami-based private investment company, H.I.G. Capital LLC. Shareholders have been asked to accept the investment firm's tender offer of $8 per share before the end of January.

The pension fund sued Matrixx in 2004, alleging the company concealed reports that linked Zicam to loss of smell. In 2006, the U.S. District Court in Phoenix dismissed the case after Matrixx argued that the reports of smell loss were not "statistically significant" enough to show that Zicam was associated with smell loss as opposed to random chance.

The 9th U.S. Circuit Court of Appeals reversed the district court's ruling, triggering Matrixx's petition to the Supreme Court.

Read more:

Thursday, January 06, 2011

Drop-Side Crib Ban Takes Effect in June 2011

Following the deaths of at least 32 babies since 2000 from falls or strangulation, the Federal Product Safety Commission recently adopted new crib-safety specifications that one observer called the "strongest crib standard in the word."

The new rules ban all drop-side cribs and impose tougher rules for crib slats and mattress supports, with the goal of eliminating gaps in which babies can become trapped and suffocate or strangle to death.

The new rules, which take effect in about six months, will make it illegal to resell almost all current cribs, because they won't meet the new standard, the Tribune says. They will require hotels and child care centers to replace their current cribs within two years.

If your baby has been injured by a drop-side crib, contact us at 713-529-1177 to learn your legal options against the manufacturers of these dangerous products.

Tuesday, January 04, 2011

Happy New Year and Zicam Settlement

Happy New Year--we've started the new year off in a very busy way--Matrixx Initiatives offered a settlement to our Zicam clients right before Christmas. Matrixx is offering a $15.5 million to settle the lawsuits who allege that they lost their sense of taste and smell due to the company’s recalled line of nasal sprays and gels.

Zinc gluconate-containing Zicam products were recalled in 2009 after the FDA identified at least 120 adverse event reports involving loss of smell with Zicam Cold Remedy Nasal Gel, Zicam Cold Remedy Nasal Swabs and Zicam Cold Remedy Swabs Kids Size.

In the aftermath of the recall, FDA inspectors discovered 800 reports of Zicam problems that Matrixx Initiatives failed to forward to the agency, in violation of federal regulations.