MESSAGE POINT ARCHIVE 

 

September 2009

FLASHBACK 1995. “The Clinton plan would have imposed sweeping changes… with consequences far greater than Congress could possibly consider...It represented a regulation-minded, top-down, centralized approach at a time when the world was moving toward decentralization and flexibility—and when the supposed health crisis was solving itself anyway. Or so goes the conventional wisdom… The more people learned about this plan, the less they liked it, and it finally died a natural and well-deserved death.”

“But suppose that what everyone knows is wrong.”

Excerpted from: A Triumph of Misinformation, by James Fallows, The Atlantic, January 1995

Good hands? “The outcome of a battle between the Texas Windstorm Insurance Association and state regulators could set a precedent for how future roof claims are handled after a hurricane…”

“The lifted shingle issue is not limited to TWIA,” said Alex Winslow, head of Texas Watch, …Insurance Commissioner Mike Geeslin “can either make sure these claims get paid or he can allow TWIA and the other insurance companies to keep denying them.”

“Policyholders say Hurricane Ike winds blew their shingles back, breaking the seals that keep them adhered to each other and that prevent water from leaking through.

But TWIA…doesn't consider loose shingles damaged. It also argues…policyholders must prove their shingles were sealed before Ike.”

“…the ultimate decision lies in Insurance Commissioner Geeslin's hands.”

Windstorm insurers, state regulators spar over shingles, By Purva Patel, Houston Chronicle, Sept. 5, 2009

Malpractice-related hooey. “So while Texas patients lost significant legal rights and many unsafe health care providers are now unaccountable, rural communities that were exploited during the “tort reform” campaign have seen no improvement in access to physicians.”

Excerpted from: Medical Malpractice Myths Debunked TXs, California and Some Michigan Thrown In, www.poptort.com 9-15-09

Barely merits discussion: “After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error — the teenager who died in North Carolina after being given the wrong blood type, the 39-year-old Massachusetts mother killed by a chemotherapy overdose, the newborn twins (children of the actor Dennis Quaid) given too much blood thinner — there are dozens more. You never hear about these other cases.”

“Medical errors happen more frequently here than in other rich countries, as the Robert Wood Johnson Foundation recently found. Only a tiny share of victims receive compensation.”

Excerpted from: Medical Malpractice System Breeds More Waste by DAVID LEONHARDT, New York Times 9-23-09

August 2009

Cash - don’t leave home without it. “More and more consumers are getting to the cash register to find that their credit cards have been canceled without their knowledge. Consumers say that it is often embarrassing to have a card declined in front of friends and other customers, and that it is frustrating when customer service is able to confirm only that the card was canceled, but not why.”

Excerpted from: Cardholders Get Rude Surprise at the Register by Mary Pilon, Wall Street Journal 8-12-09

McDreamy vs. Marcus Welby: Is the 'Cool' Factor Killing Healthcare? "All the sexy shows on TV are about ER work or surgeons,"…Whatever it may be. There is no Marcus Welby on TV — 'cause it's just not cool."

“Television aside, medical specialists cite an array of reasons why more medical students aspire to be Grey's Anatomy's McDreamy neurosurgeon…than the wise family practitioner [in Marcus Welby, MD]…”

“Longer days, lower pay, less prestige and more administrative headaches have turned doctors away in droves from family medicine, presumed to be the frontline for wellness and preventive-care programs…”

“The number of U.S. medical school students going into primary care has dropped 51.8% since 1997, according to the American Academy of Family Physicians (AAFP).”

Excerpted from: Doctor shortage looms as primary care loses its pull, By Janice Lloyd, USA TODAY 8-20-09

Unacceptable.  “And what about us—the patients? How does a nation that might close down a business for a single illness from a suspicious hamburger tolerate the carnage inflicted by our hospitals? And not just those 100,000 deaths. In April, a Wall Street Journal story suggested that blood clots following surgery or illness, the leading cause of preventable hospital deaths in the U.S., may kill nearly 200,000 patients per year. How did Americans learn to accept hundreds of thousands of deaths from minor medical mistakes as an inevitability?”

Excerpted: How American Health Care Killed My Father, The Atlantic by David Goldhill, September 2009

Raw numbers. “Hispanic worker deaths increased from 533 in 1992 to 937 in 2007 — a 76% jump. In the same period, total fatalities in all jobs nationwide… The 2007 tally, the latest available from the U.S. Bureau of Labor Statistics, followed a record 990 Hispanic deaths in 2006.”

“Jose Omar Puerto, 19, from Honduras, was repairing a roof on an Austin apartment building in 2007 when his aluminum ladder became entangled in electrical wires. He was electrocuted and killed, his sister, Marta Puerto, said.”

“His company paid for the funeral and the body's return to Honduras, she said. The family received no further compensation.”

Excerpted from: Hispanic worker deaths up 76% since 1992, by Rick Jervis, USA TODAY, July 20, 2009

JULY 2009

Dentophobia on steroids. “An American-Statesman review of disciplinary records found that despite years of critical audits and complaints of lax oversight, the dental board… is less likely to take disciplinary action, slower to act and far less likely to impose the most severe sanction, loss of a license, than the state medical board.”

“The dental board…routinely suspends dentists' licenses, then probates those suspensions in full…Since January 2007, probated suspensions have been meted out to dentists who have a license revoked in another state or who plead guilty to crimes such as Medicaid fraud or assault.”

“…the dental board requires members of the public to file an open records request to see a dentist's disciplinary record.”

Excerpted from: Oversight of dentists lacks strength, by Mary Ann Roser, Austin American Statesman, July 20, 2009


The Gag Reflex.  "Until recently, patients whose doctors kept them waiting for hours without explanation, brushed off their questions or seemed downright incompetent had little recourse…In the past five years more than 40 Web sites…have begun reviewing physicians…”

“As a defensive measure, some physicians are requiring patients to sign broad agreements that prohibit online postings or commentary in any media outlet "without prior written consent."
"We get threatened with lawsuits on a pretty much weekly basis," he said [John Swapceinski, a founder of RateMDs.com]”

“Some doctors advocate an aggressive response…Medical Justice, a company that for a fee starting at $495 provides sample privacy agreements and monitors online comments for its 2,000 members.”

Excerpted from: Doctor's Orders, Want Treatment? Just Sign This No-Complaint Contract, By Sandra G. Boodman, Washington Post, 7-21-09

What goes up – must come down. NOT! "Here we go again. As we enter another hurricane season, State Farm announced it plans to raise its homeowners rates by as much as 8.5 percent. The insurer raised rates by 2.8 percent last year. Not to be outdone, Allstate has said it will raise rates by an average of 5.5 percent statewide, with bigger hikes in coastal areas.”

“This is the Ike backlash. Homeowners who dared to use the policies they paid for to settle hurricane damage last year are now taking it in the premiums.”

“The poor-mouthing by insurers grows as tiresome as the perennial rate hikes…if an insurance company can't adequately protect itself from risk, do you really want to buy a policy from them?”

Excerpted from: Loren Steffy - Insurance rate hike? Must be hurricane season,
Houston Chronicle, 7-16-09

A damning portrait. “Congressional committees heard a lot this month about the devious schemes used by health insurance companies to drop or shortchange sick patients.’

“A House oversight subcommittee took a close look at…“rescission,” in which insurance companies cancel coverage for some sick policyholders rather than pay an expensive claim.…When executives for the three companies were asked if they would…limit rescissions to cases where the policyholder deliberately lied on an application, all said they would not.”

“…the Senate Commerce Committee was getting an earful from a former head of corporate communications for Cigna…He charged that the industry deliberately confuses its customers…“dump the sick” through rescissions and by purging small businesses whose employees’ claims exceed what underwriters expected.”

Editorial: Insurance Company Schemes, The New York Times, June 29, 2009

Target practice.  “[Dr. Gary D. Kao] whom regulators accuse of mishandling scores of radioactive seed implants at the Philadelphia veterans’ hospital told a Congressional panel…he “could have done better” with some implants, his patients over all received effective treatment for their prostate cancer.’

“…investigators for the Nuclear Regulatory Commission and V.A. officials had identified Dr. Kao as the doctor who did all but a handful of the …92 substandard seed implants out of 116 cases...”

“An N.R.C. consultant…concluded that “erratic seed placement caused a number of cases to have elevated doses to the rectum, bladder or perineum.”…Dr. Kao confirmed that he had on occasion implanted seeds in the bladder.”

“Did you notify the patient?” Mr. Specter [Senator Arlen Specter] asked.”

“No, sir,” Dr. Kao replied.”

Excerpted from: Oncologist Defends His Work at a V.A. Hospital By WALT BOGDANICH, New York Times 6-30-09

JUNE 2009

 $12 an hour for every hour you survive. "A construction worker dies in Texas every 2 1/2 days. No other state in the country has as many construction-related deaths: 142 fatalities were reported in 2007…according to the U.S. Department of Labor’s most recent statistics. The causes are far from mysterious: lax enforcement of labor and safety regulations, too many overtime hours without rest breaks and a lack of safety training and equipment.

"Despite its construction boom, Texas has the second lowest number of OSHA inspectors in the nation… According to a 2008 report by the AFL-CIO, Death on the Job, it would take the 77 OSHA inspectors in Texas 144 years to visit every workplace in the state at least once."

Excerpted from: Dying to Build - Why Texas is the deadliest state for construction workers by Melissa del Bosque, Texas Observer June 12-2009

Hank’s larcenous anger issues. “Former AIG CEO Maurice "Hank" Greenberg admitted…he was angry about losing his job in 2005, but defended taking over a retirement bonus fund that AIG is trying to recover in federal court.”

"Yes, I was angry," said Greenberg, responding to a question from AIG's lawyer Theodore Wells. Wells argued…that Greenberg...raided an AIG retirement program [Starr] holding $4.3 billion in stock because he was angry about losing his job…”

“The lawsuit against Greenberg and Starr involves a fund created in 1970…Its value grew to $4.3 billion…The fund was described…by Greenberg before 2005 as a retirement bonus fund for select…employees…a "kind of golden handcuffs" given to members of "the inner club.”
“…AIG has received $182 billion in federal aid…AIG said if it can reclaim the $4.3 billion the money would help it pay back the government.”

Excerpted from: AIG ex-CEO says he was 'angry' about losing job in '05 by MADLEN READ, Associated Press 6-17-09


The cost of getting paid.  “Insurance administration costs can take a big bite out of a practice’s revenue. A recent Weill Cornell Medical College study found that a third of the money received by primary care physicians pays for interactions between a doctor’s practice and patients’ health plans.”

Excerpted from: If All Doctors Had More Time to Listen, By JULIE WEED, New York Times 6-7-09


Advice to the insured: Don’t get sick.  “The study [by Harvard University, published in the August issue of the American Journal of Medicine] found that medical bills, plus related problems such as lost wages for the ill and their caregivers, contributed to 62% of all bankruptcies filed in 2007.”

“Medical insurance isn't much help, either. About 78% of bankruptcy filers burdened by healthcare expenses were insured…”

"Health insurance is not a guarantee that illness won't bankrupt you," said Steffie Woolhandler, one of the authors…

…"So you can be insured and still end up with big bills.…even if you have good insurance through your employer, you can lose it if you get sick and can't work."

“Most people who filed medical-related bankruptcies "were solidly middle class before financial disaster hit," the study says. Two-thirds were homeowners, and most had gone to college.”

Excerpted from: Medical bills play a role in 62% of bankruptcies, study says, By Lisa Girion,
Los Angeles Times 6-4-2009

MAY  2009

Medicine’s Culture War. “I went to dinner with six McAllen doctors…Some were dubious when I told them that McAllen was the country’s most expensive place for health care...costs have grown faster than any other market…ultimately soaring by more than ten thousand dollars per person.”

“Maybe the service is better here,” the cardiologist suggested….”

“Others were skeptical. “I don’t think that explains the costs he’s talking about,” the general surgeon said.”

“It’s malpractice,” a family physician said.”

“McAllen is legal hell,” the cardiologist agreed…That explanation puzzled me…Texas passed a tough malpractice law…Didn’t lawsuits go down?”

“Practically to zero,” the cardiologist admitted.”

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures…“the way to practice medicine has changed completely. Before, it was about how to do a good job. Now it is about ‘How much will you benefit?”

Excerpted from: The Cost Conundrum: What a Texas town can teach us about health care, by Atul Gawande The New Yorker, June 1, 2009


Pick your adjective: PREVENTABLE or NEEDLESS or AVOIDABLE.  “Despite a decade of promises, little has been done to fix the problem of preventable medical errors that kill nearly 98,000 people in the United States each year…”

“Consumers Union… said lawmakers largely have failed to enact patient safety reforms recommended by a 1999 report by the Institute of Medicine or IOM that found that medical errors cost the United States $17 billion to $29 billion a year.”

“…the group now projects that preventable medical errors now account for more than 100,000 deaths each year…”

Excerpted from: U.S. group sees little progress on medical errors, Reuters 5-19-09

The Fairness of Options. “Seems to me that if arbitration is indeed fair to everyone, it shouldn't have to be crammed down consumers' throats. Arbitration should be offered as a cost-effective and relatively speedy alternative to litigation. But it should be just one option available, just as filing a lawsuit should be an option.”

Excerpted from: Column - Sue the company? Most contracts force consumers to forfeit that right, David Lazarus, Los Angeles Times, 5-3-09

A Never-Ending Scandal, er, Story "A senior member [Rep. Elijah E. Cummings, D-MD] of the House Committee on Oversight and Government Reform wants his panel to investigate whether insurance giant AIG Inc. and other providers have unnecessarily denied and delayed costly medical treatment for civilian contractors injured in Iraq and Afghanistan.

The letter cited media reports last week disclosing that insurance companies routinely challenged serious injury claims of civilian workers returning from the war zones. Private contractors have been forced to battle for basic medical needs…

Last year, the government reform committee determined that AIG had collected $1.3 billion in premiums on the insurance between 2002 and 2007, while it had paid out about $800 million -- leaving the company with a nearly 40% profit. The Pentagon has recently begun an inquiry into whether such premiums can be lowered."

Excerpted from: AIG faces inquiry over medical care for U.S. contractors, Los Angeles Times By T. Christian Miller 4-22-09


Turning the tables: Begging for comfort. “Health insurance companies…offered to reduce rates for millions of women and accept close federal regulation…”

“The industry is trying to head off creation of a government health plan that would compete with them to enroll middle-class workers and their families.”

"We are not asking people to trust us, we are asking people to trust government," Karen Ignagni, president of America's Health Insurance Plans, told a Senate panel…”

“Instead of a government plan as a check on their industry, insurers are offering to accept a series of consumer protections they contend would add up to a fairer marketplace and cut into the…50 million uninsured.”

"We are comfortable with that," Ignagni told the Senate Finance Committee…”

“Insurers have already offered to stop denying coverage to sick people and…the practice of charging higher premiums to those with a history of health problems. In exchange, the industry wants Congress to require all Americans to carry health insurance…”

Excerpted from: Health insurers ask gov't to police their industry, By Ricardo Alonso Zaldivar, Erica Werner contributed to this report, The Associated Press, 5-5-09

 

APRIL 2009

This Just In: Damage Caps Have NOT Brought Down Healthcare Costs for Consumers. Film at 11.  “Their [a team at the University of Alabama] survey of studies related to malpractice insurance, defensive medicine and consumer health insurance premiums looked at 27 states with limits on non-economic damages…”

“Their conclusion – ‘Tort reforms have not led to health care cost savings for consumers’…”
"Tort reform is not a panacea for health care costs," said Morrisey” [Michael Morrisey, professor of health economics/health insurance and director of Lister Hill Center for Health Policy]

“But it's important to keep in mind who gains and who loses…As Morrisey and his colleagues put it: "The results of this study suggest that there are no insurance premium savings that accrue to consumers. Are there other benefits to consumers? If these cannot be identified, it is difficult to see a justification for the loss of legal rights."

Excerpted from: Malpractice damage caps not a cure for high health care costs by Jim Landers (Business Columnist), Dallas Morning News, April 21, 2009

You Are What You Eat? Ewwwww. “After decades of steady progress, the safety of the nation’s food supply has not improved over the past three years… The report, from the Centers for Disease Control and Prevention, demonstrates that the nation’s food safety system, created when most foods were grown, prepared and consumed locally, needs a thorough overhaul to regulate an increasingly global food industry, top government health officials said Thursday.”

“Roughly 76 million people in the United States suffer foodborne illnesses each year, 300,000 are hospitalized, and 5,000 die, according to C.D.C. estimates. Children younger than 4 are sickened by food more than those in any other age group….”

Excerpted from: U.S. Food Safety No Longer Improving By GARDINER HARRIS,
NY Times 4-9-09

 

 Much ado about nothing. “A special government program to improve worker safety in hazardous industries rarely fulfilled its promise, a Labor Department audit concluded… over the past six years, dozens of deaths occurred at firms that should have been subjected to much tighter federal safety enforcement.”

“The report was the first detailed appraisal of a highly touted Bush administration initiative that called for [OSHA] to devote attention and resources to improving safety at companies with a troubled history of job-related fatalities. The study found that officials failed to gather needed data, conducted uneven inspections and enforcement, and sometimes failed to discern repeat fatalities because records misspelled the companies' names or failed to notice when two subsidiaries with the same owner were involved.”

Excerpted from: Initiative On Worker Safety Gets Poor Marks, Washington Post by R. Jeffrey Smith, Washington Post April 2, 2009

 I was the CEO for a mere 40 years, but it's not my fault. “The man who built failed insurer American International Group Inc...is bracing for tough questioning on Capitol Hill.”

“Maurice "Hank" Greenberg is appearing before the House Oversight Committee…”

“Greenberg is expected to tell the panel he bears no responsibility for AIG's downfall, despite his having served as chief executive for nearly four decades, until March 2005.”

Excerpted from: Former AIG CEO criticizes successors, bailout, by Daniel Wagner, Associated Press 4-2-09

MARCH 2009

⇒ Yours is frivolous – mine is good business.  “As the economy melts down, even Texas’ tort warriors and their kin are turning to civil courts to recover losses from ruined financial firms. Dallas energy tycoon T. Boone Pickens—a $1 million donor to Texans for Lawsuit Reform—filed a lawsuit last October to recoup $60 million from bankrupt Lehman Brothers.

"In January, a family foundation affiliated with a Texas tort-reform giant filed a $1.8 million claim against hammered Dallas hedge fund Highland Capital Management LP, depicting the foundation as a victim of deceit. Amarillo’s Mary E. Bivins Foundation is named for the great-grandmother of former Republican state Sen. Teel Bivins… In 1995, then-Sen. Bivins authored or co-authored each of the four major tort-restriction bills that then-Gov. George W. Bush signed into law.”

Excerpted from: Tort Warriors Resort to Litigation by Andrew Wheat,
The Texas Observer 3-20-09 (Scroll down towards the bottom)

 Playing in piles of vermiculite. "A medical expert testifying Tuesday in the W.R. Grace trial described his disbelief when, arriving in Libby [Montana] 10 years ago, he found that people who had never worked at Grace’s vermiculite mine were dying from asbestos-related disease.”

“To see an individual who had died of asbestos-related disease who was not a worker was unheard of,” said Dr. Aubrey Miller, a physician and investigator with the U.S. Environmental Protection Agency. “

“Grace had information about the asbestos, about the nature of the asbestos to become airborne, they had information about health effects on their workers and they had information about animal studies where the animals were being exposed to the same materials as the workers,” Miller said.” 

Excerpted from: Expert calls extent of Libby illnesses ‘unheard of’, Associated Press 3-10-09

 Surly physician? Misdiagnosis? Keep it to yourself.  “Some doctors have started fighting back against ugly Internet reviews by asking patients to abide by what are effectively gag orders that bar them from posting negative comments online.”

“Medical Justice…For a fee, it provides doctors with a standardized waiver agreement. Patients who sign agree not to post online comments about the doctor, "his expertise and/or treatment."
Doctors are notified when a negative rating appears on a Web site… physicians can use the signed waivers to get the sites to remove offending opinion.”

Excerpted from: Docs seek gag orders to stop patients' reviews By LINDSEY TANNER, Associated Press 3-3-09.

 Oh no you didn’t! “The former chief executive officer [Maurice "Hank" Greenberg1] of American International Group Inc. on Monday sued the company he led for 38 years, saying AIG misled investors about its exposure to subprime mortgages.”

“…claimed in papers filed in federal court in Manhattan Monday that the company… has ruined his fortune by lying about its financial health.”

“…a company spokeswoman, said: "We believe the suit is without merit and we will defend ourselves vigorously."

“Greenberg was forced out of AIG amidst a controversy in spring 2005 when the company restated its financial statements for the previous five years, acknowledging accounting improprieties, including 'improper or inappropriate transactions.'"

Excerpted from: Former AIG CEO sues the company in NY, saying AIG took his fortune through deceit, Associated Press 3-3-09
 

FEBRUARY 2009

Tragically Ironic.  February 24, 2004 “The chairman (Maurice R. Greenberg) of American International Group…called lawyers opposed to tort reform "terrorists"…

“Greenberg used graphic language as he railed against an American tort system…. He accused plaintiff's lawyers of venue shopping… "You know you're going to get raped...when you appear there," Greenberg said.”

"Our legal tort system is out of control," he said, estimating class-action lawsuits shave 2 percent off the U.S. gross domestic product every year. "It's a blight on the country." 1

February 19, 2009 “Former American International Group Inc. chairman Maurice R. Greenberg criticized the Obama administration’s steps to restrict executive compensation for firms that receive federal aid….”

“What kind of people are you going to get for $500,000? Anyone with real talent will just go elsewhere,” Mr. Greenberg told an audience in New York Thursday…“The best managers will move to private companies that are not receiving government funds, and therefore do not face pay caps,” he said.”

“Mr. Greenberg—who resigned as chairman and CEO of AIG in 2005 amid investigations of its accounting practices...” 2

February 23, 2009 “The American International Group, the battered insurance giant that is now effectively majority-owned by the federal government, is in talks to receive more government aid as it prepares to record another giant loss.” 3

1 Excerpted from: AIG Chief Calls Some Lawyers 'Terrorists' By Tim McLaughlin, Reuters 2-24-09
2 Excerpted from: Greenberg slams pay cap plan, AIG bailout By Colleen McCarthy, Business Insurance 2-19-09
3 Excerpted from: A.I.G. to Seek More Government Aid, The New York Times 2-23-09

 

 
⇒Finger-pointing syndrom.  "Nearly 80% of companies describe their firms as not ready for a government or regulatory investigation, according to a new Deloitte Financial Advisory Services online survey of 1,100 executives.”

“Only 20.8% of executives say their companies are "very ready" for a government investigation despite the fact that 26.5% had been subject to a government probe during the past two years.”

“…executives disagree on the chain of responsibility for such investigations. The executives placed responsibility on several entities, with 20.9% naming internal audit committees, 18.6% fingering general counsel and 5.6% citing the board of directors or audit committee.”

Excerpted from: Survey: 80% of companies are not ready for government or regulatory investigations by Sheri Qualters, National Law Journal Feb. 18, 2009. Access to this article requires free registration ot the NLJ website.

⇒Oh...I get it! All you do is tweak the math to increase your net worth.  “Allstate, the big insurer, last week declared that despite unprecedented trouble in the markets, it remains financially strong.”

“But tucked deep inside a company report is evidence that Allstate changed its bookkeeping last year in ways that improve its financial appearance.”
“One accounting change added $347 million. Another delivered a year-end boost of $365 million.”

Excerpted from:   Insurers' Finances Clouded by Bookkeeping Changes By David S. Hilzenrath, Washington Post, February 6, 2009 

⇒Alarming! Or is it just me? “We need to set a new goal for law -- to define an open area of free choice. This requires judges and legislatures to affirmatively assert social norms of what's reasonable and what's not.”

Excerpted from:  How Modern Law Makes Us Powerless,  Op-ed by Philip K. Howard, Wall Street Journal, Jan 26, 2009

 

JANUARY 2009

⇒Directions: Apply Pressure and Wait. “Nine dissident scientists at the Food and Drug Administration who say they were forced to approve high-risk medical devices sent a letter to President Obama on Monday stating that agency officials might have made them the targets of a criminal investigation into their complaints.”

“It has been brought to our attention that F.D.A. management may have just recently ordered the F.D.A. Office of Criminal Investigations (O.C.I.) to investigate us rather than the managers who have engaged in wrongdoing!” states the letter…”

“The letter is the latest escalation in a highly unusual internal battle… The nine scientists have banded together and charged that agency officials have acted illegally and that patients are routinely put at risk from high-risk medical devices that are approved for sale even though manufacturers have never proved that the products are either safe or effective.”

Excerpted from: Dissidents at F.D.A. Complain of Inquiry, By Gardiner Harris New York Times 1-28-09

 

⇒Polluters, Go Sit in the Corner.  “Five years after a state auditor determined that the state's main environmental regulatory and permitting office did little to penalize polluters, critics say shortcomings remain in making violators pay.”

“The Texas Commission on Environmental Quality still caps penalties on polluters at $10,000 for each violation per day, regardless of its severity. And it still hasn't decided whether a history of violations should warrant harsher penalties.”

“By its own reckoning, the commission conceives of the penalties it levies against polluters as a kind of schoolmarmish scold.”

Excerpted from: Do businesses pay for pollution? By Asher Price, Austin American Statesman, January 18, 2009

 

⇒Climate change.  “With a less-friendly political climate and a downright hostile economic climate, U.S. property/casualty insurers are anticipating renewed legislative and regulatory battles in the states in 2009.”

“It is early for determining which states will see the most significant actions on these issues, but the overall trend is one of "defense, defense, defense," said Joe Thesing, state affairs director for the National Association of Mutual Insurance Companies. “

Excerpted from: Insurers Anticipate a Year of 'Defense' in 2009 by Sean Carr
BestWeek, 1-12-2009 

 

⇒Need care? Just Google it – I did.  “A healthcare company hired to manage a program for elderly Texans as part of a broad privatization plan was fined more than $1 million by the state in the past year over mounting complaints that included delayed or denied medical care.

Evercare of Texas… has drawn the ire of some powerful Austin lawmakers over its management of preventative and long-term care for the state’s most vulnerable, The Dallas Morning News reported Sunday in the first of a four-part investigative series.

Steven McGee…[a] truck driver disabled by multiple sclerosis, tried to enroll after receiving a packet from Evercare in advance of a care program that was to launch Feb. 1 last year. He said the first three people he talked to didn’t know what he was talking about…

After McGee convinced her [a fourth Evercare representative] that he had a company pamphlet in hand…. "She came back and said, 'I understand what you’re talking about now because…I Googled it.’’[McGee said]”

Excerpted from: Company caring for elderly under fire from state, Associated Press 1-5-09

 

DECEMBER  2008

 ⇒How far can it tilt without falling over? “The Supreme Court has embarrassed Texas with its demonstrable tilt toward insurers and other corporate defendants… the court has gone out of its way to protect businesses from lawsuits to a degree that even the Texas Legislature and the defense bar can't stomach.”

Excerpted from: Editorial -Texas Supreme Court's tilt toward insurers causes concern, Austin American Statesman, 12-1-08

 

⇒Is this intended to be reassuring?  “Traces of the industrial chemical melamine have been detected in samples of top-selling U.S. infant formula, but federal regulators insist the products are safe.”

“The Food and Drug Administration said last month it was unable to identify any melamine exposure level as safe for infants, but a top official said it would be a "dangerous overreaction" for parents to stop feeding infant formula to babies who depend on it.”

   Excerpted from: FDA finds traces of melamine in US infant formula By MARTHA MENDOZA and JUSTIN PRITCHARD, Associated Press 11-26-08

 

NOVEMBER 2008

⇒Just the facts. “Plaintiffs won in more than half of state court civil trials in 2005 and were more likely to get a favorable verdict in bench than jury trials, according to a new U.S. Department of Justice report.”

“The report was released Tuesday by the Bureau of Justice Statistics at the U.S. Department of Justice. The study is the first nationally representative measure of general civil bench and jury trials in state courts”.

“Out of the 14,000 civil trials that went in the plaintiffs' favor, punitive damages were awarded in about 5 percent of the cases, with $64,000 as the median punitive damages award”.

“The report also pointed to a major drop in the number of civil trials, with numbers decreasing by 52 percent from 1992 to 2005 in the nation's 75 most populous counties. In these counties, the median final award also decreased, from $72,000 in 1992, to $43,000 in 2005”.

Excerpted from: DOJ Study: Plaintiffs Win More Than Half of State Court Civil Trials, by Vesna Jaksic, National Law Journal, 10-30-08

 

⇒ME TOO! ME TOO!  “When the government said it would spend $700 billion to rescue the nation’s financial industry, it seemed to be an ocean of money. …it suddenly looks like a dwindling pool.”

“…The shrinking pie — and the growing uncertainty over who qualifies — has thrown Washington’s legal and lobbying establishment into a mad scramble.”

“The lobbying frenzy worries many traditional bankers — the original targets of the rescue program — who fear that it could blur, or even undermine, the government’s effort to stabilize the financial system after its worst crisis since the 1930s.”

“The …law gave the Treasury broad authority to decide how to spend the $700 billion…cash infusions are available to “qualifying U.S. banks, savings associations, and certain bank and savings and loan holding companies, engaged only in financial activities.”

“That definition has grown to include private banks and insurers like Allstate and MetLife, which own savings and loans.”

Excerpted from: Lobbyists Swarm the Treasury for Piece of Bailout Pie, By MARK LANDLER and DAVID D. KIRKPATRICK, New York Times 11-12-08

 

⇒Hungry Hungry Hippos.  "On Friday and over the weekend, four insurance companies with no history of banking joined the hippo parade as they scrambled to buy up small savings-and-loans. Doing so allows the insurers to qualify as banks and thus become eligible for federal bailout money".

"While some of the targeted thrifts are tiny, the insurers acquiring them all have been hit hard by the credit crisis and need capital injections -- and, apparently, government assistance -- to survive".

Excerpted from: Insurers Jump on the Bailout Bandwagon, Zach Lowe, The Am Law Daily, 11-18-08

 

OCTOBER 2008

⇒But your honor, they don’t like us.  A widely watched trial over Chevron's Nigerian operations featured a new online frontier Monday in the battle to influence the hearts and minds of potential jurors.

While imposing a general gag order, Northern District of CA Judge Susan Illston ordered Chevron to take down a paid Google link sponsored by the company... which directed Internet surfers to a Chevron-created Web site that provided information about the incident at issue in trial.

The company placed the link to appear when anyone Googled the name of the lead plaintiff, Larry Bowoto, plaintiffs argued.

…[the] defense attorney…defended the sponsorship, pointing out that nine of the first 10 Google search results for the lead plaintiff's name produced Web pages friendly to Bowoto.
"Are they sponsored links?" Illston asked.

[the defense attorney] said he didn't think so, and the judge indicated that that's what concerned her.

"To me, that's as sure a thing as giving a statement to the press," Illston said. When [defense attorney] responded that Chevron was "way behind," the judge cut him off.

"Way behind in fighting the case in the press? We're not going to fight the case in the press," she said…

Excerpted from: Judge: Chevron Must Remove Paid Google Link Tied to Search of Plaintiff's Name by Dan Levine, The Recorder, 10-28-08

 

⇒No life boats? Toss the patients overboard.  “Doctors and hospital executives say collecting payments from insurers has become an expensive headache that is driving up the nation's healthcare costs.”

“Two decades ago, the top 10 insurers covered about 27% of all insured Americans. Today, four companies…cover more than 85 million people, almost half of all those with private insurance.”

“More than 30 cents of every dollar spent on healthcare goes to administration, according to a 2007 survey of insurance and medical executives. That translates to about $630 billion this year.”

“Patients are often dragged into the financial tug of war…When their bills are rejected or reduced by insurers, doctors often try to recover unpaid balances from patients, even if the amounts exceed what they are responsible for paying under their insurance plans.”

Excerpted from: The battle of the medical bills, By Daniel J. Costello, Lisa Girion and Michael A. Hiltzik, LA Times 10-23-08

 

Singing a different tune: The Hypocrisy Boogie.  "Corporate executives routinely sing the praises of arbitration clauses…that typically bars a consumer from going to court in the event of a dispute."

"Now three law professors suggest that companies are far less likely to use arbitration clauses in contracts with each other than they are in contracts with consumers."

"The findings by Professor Eisenberg, whose co-authors on the most recent study were Geoffrey P. Miller of New York University School of Law and Emily Sherwin of Cornell Law School, might prove provocative. Their study, which was described in an article this summer in the University of Michigan Journal of Law Reform…"

"They found that companies included mandatory arbitration clauses in 75 percent of consumer agreements but in just 24 percent of contracts over all."

"Companies say that arbitration is "a fair and cost-saving process," [Eisenberg] continued. "If they believe that is true across the board, why don’t they insist on it when they contract with each other?"

Excerpted from: Companies Unlikely to Use Arbitration With Each Other, By JONATHAN D. GLATER,  NYT, 10-6-08

 

⇒Not if, but when. " The federal judge overseeing BP's criminal case stemming from the deadly 2005 explosion at its Texas City refinery said Tuesday that whatever she decides on a pending plea deal won't guarantee safety at the plant."

"I can't make that plant safe," U.S. District Judge Lee Rosenthal…"

"…David Senko, who was in California at the time of the blast but was the supervisor of the 15 contractors who died, told Rosenthal that no dollar amount or penalty was large enough for the lax safety systems that led to the deaths of 15 and injuries of many more… "There will be another blast. Let's hope it won't have the same result as March 23, 2005." [he said]

"Three people have died at the refinery since the blast."

Excerpted from: BP judge says she can't 'make that plant safe' by Kristen Hayes, Houston Chronicle 10-7-08

 

⇒Cloaks and dollars.  Lou Dobbs: "The reality is that these two organizations [Business Roundtable & US Chamber of Commerce] are working against the American people and have been for some time and haven't got the guts to come on the show and talk about the issues. They are behind the scenes stifling the voice of American business. Think about the last time you heard a CEO step up in front of a camera and mike actually express himself or herself on any issue of great public policy importance and it's disgusting that these associations are just really -- they're cloaks, they're veils, for the self-influence of business. It's a shame".

Excerpted from: CNN - LOU DOBBS TONIGHT Transcript, September 29, 2008

 

SEPTEMBER  2008
 
 
⇒Ouch, that could possibly hurt. "Congress wants Wall Street to feel it where it hurts: the wallet."
"The stratospheric pay packages of Wall Street executives have become a lightning rod issue as Congress crafts a $700 billion bailout for financial firms.""The moves in Washington mirror the popular outcry…over the prospect of Wall Street's tarnished titans walking away with tens of millions of dollars a year while taxpayers pick up the tab."
 
"But Wall Street, its lobbyists and trade groups are waging a lobbying campaign to try to fight compensation curbs."
 
"Wall Street has been the top tier of the corporate pay range…Its bonus system…has been singled out as an incentive for executives to expand their highly profitable business in exotic securities and ignore the risks."
 
Excerpted from: In Bailout Furor, Wall Street Pay Becomes a Target, By STEVE LOHR New York Times, September 23, 2008 (The Los Angeles Times contributed to this report).
 
 
 
⇒Not bad pay for a summer job.  "American International Group head Robert Willumstad, named CEO in June… may get a $7 million exit package after a Fed takeover forces him out...Willumstad is entitled to keep a $4 million cash bonus, 1 million shares, six months' severance salary and life insurance and other benefits worth about $40,000, said David Schmidt, a senior consultant at New York-based executive pay firm James F. Reda & Associates."
 
Excerpted from: EX-AIG CEO EYES $7M EXIT, Bloomberg 9-18-08
 
 
⇒Post-Katrina: Insurance Industry Prevails.  "Initially, the court victories came easily. On the stand, telling their tales of battling to get their insurance claims paid, the homeowners almost always won, often with bad-faith penalties."
 
"But on appeal, in both federal and state courts, insurers prevailed, winning key legal precedents and knocking down monetary judgments if the parties had not settled."
 
"In Louisiana, most of the major questions of insurance law have been decided, and courts sided with the industry."
 
Excerpted from: In the hard fought battle after Hurricane Katrina of homeowner versus insurance company
By Rebecca Mowbray, The New Orleans Times-Picayune, August 27, 2008 
 
 
⇒Like to gamble? Charter a bus.  "Two of every five Texas charter bus companies have been ordered off the road in the past two years…About 300 bus companies have permission to operate in Texas. But during the past 24 months, another 201 companies have had their authorization revoked, said Carol Davis, director of the Texas Department of Transportation’s motor carrier division."
 
"Some of those grounded companies have resurfaced under new names, she said."
"Church groups and other clubs often use motor coaches for long trips."
 
Excerpted from: About 200 bus companies ordered off Texas roads in past two years officials say
By Gordon Dickson, Fort Worth Star Telegram, August 26, 2008
 
 
 
AUGUST 2008
 
 
⇒ICK – what’s that smell?  "The state has ordered two Lyondell Chemical Co. subsidiaries to pay a total of $6.5 million in pollution fines, Texas Attorney General Greg Abbott said Monday."
 
"Equistar Chemicals LP and Millenium Petrochemicals were charged in December 2005 after a Texas Commission on Environmental Quality investigation revealed that seven Lyondell facilities released harmful emissions, including volatile organic compounds, nitrogen oxides and carbon monoxide over an extended period of time."
 
"The investigation found that the plants in La Porte, Channelview and Chocolate Bayou either ignored long-term pollutant releases or did very little to remedy chronic problems over time."
Excerpted from: Pair of Texas firms hit with $6.5 million in pollution fines,
Austin American Statesman (Associated Press), August 25, 2006  
 
 
 
 
⇒Lawsuits: "A Vital Deterrent"  "The Food and Drug Administration "is in no position" to guarantee drug safety, the editors of the New England Journal of Medicine said in a friend-of-the-court brief."
 
"Lawsuits can serve as "a vital deterrent" and protect consumers if drug companies don't disclose risks. Without the discoveries dredged up by plaintiffs' lawyers through liability litigation, "the FDA would be stripped of an essential source of information that the agency has consistently relied on when making its regulatory decisions, and the American public would be deprived of a vital deterrent against pharmaceutical company misconduct."
Excerpted from: Top medical journal advises Supreme Court not to bar lawsuits over FDA-approved drugs
By RICARDO ALONSO-ZALDIVAR, Associated Press, August 15, 2008
 
 
 
⇒Tragedy of self-policing.  "In a scene that has become all-too familiar, one of the nation's largest mobile cranes came crashing down at a Houston oil refinery…killing four workers. With an alarming number of crane-related deaths and crashes…serious questions have been raised about the safety of the nation's construction cranes."
 
"Texas is one of 35 states that does not require crane operators to be licensed. The [OSHA] requires cranes to undergo annual inspections, but it is up to crane owners in the state to police themselves."
Houston Refinery Latest in String of Crane Collapses
ABC News Internet Ventures 7-19-08
 
 
 
 
⇒Technology age side effects of prescription drugs.  "Health and life insurance companies have access to a powerful new tool for evaluating whether to cover individual consumers: a health "credit report" drawn from databases containing prescription drug records on more than 200 million Americans."
 
"When an insurer makes an online query about an applicant, Ingenix or Milliman's [data providers] servers scour the data and within minutes or less return reports to a central server at the [insurance] company. Then comes the analysis.  ...[the tool] provides insurers a "pharmacy risk score," or a number that represents an "expected risk" for a group of people…"
 
"Some health experts worry that insurance companies can make faulty assumptions by looking at prescription drug records…"I had a patient on Amitriptyline for migraines and they were denied life insurance because it's also an antidepressant," said physician Kate Atkinson of Amherst, Mass. Another patient was on Prozac -- not for depression, but for menopausal hot flashes. "I wrote an appeal letter, and they still wouldn't give it to her…"
Excerpted from: Prescription Data Used To Assess Consumers Records Aid Insurers but Prompt Privacy Concerns
by Ellen Nakashima, Washington Post, August 4, 2008
 
 
 
⇒Trust us we have your families’ best interest at heart. "Congressional negotiators agreed yesterday to a ban on a family of toxins [phthalates] in children's products... The ban…would have significant implications for U.S. consumers, whose homes are filled with hundreds of plastic products designed for children that may be causing dangerous health effects…"
 
"The ban…reflects a growing body of scientific research showing that children ingest the toxins…Used for decades in plastic production, the chemicals are now thought to act as hormones and cause reproductive problems, especially in boys."
 
"It also signals an important crack in the chemical industry's ability to fend off federal regulation and suggests that the landscape may be shifting to favor consumers...the chemical industry waged a costly battle to defeat it. .., led by Exxon Mobil, [it] spent a chunk of its $22 million lobbying budget… to try to prevent any ban."
 
"Whitehouse spokesman said...President Bush opposes the ban but that it is too early to say whether he will veto the measure, which is part of popular legislation to reform the Consumer Product Safety Commission."
Excerpted from: Lawmakers Agree to Ban Toxins in Children's Items,
By Lyndsey Layton, Washington Post, July 29, 2008
 
 
 
 
JULY  2008
 
 
⇒Who knows you best?  "New Technology: The consolidation of insurance industry claims databases has put a valuable new tool in the hands of investigators. ClaimSearch is the world’s largest comprehensive database of claims information…Predictive Knowledge, collects and analyzes information that can be disseminated to insurers…to detect, investigate and prevent insurance fraud…a programcalled CATfraud, identifies potentially fraudulent catastrophe/weather-related insurance claims."
 
"…Software can verify the accuracy of information provided by prospective policyholders… insurers can use a number of different software tools, ranging from voice stress analysis and “red flag” identifiers to datamining and database searching."
 
"Privacy: An emerging issue for insurers using data sharing services is…privacy. Financial institutions, including insurers, must respect the privacy of their customers and protect their personal information, a practice that may deter efforts to combat fraud."
Excerpted from: Issues Updates - Insurance Fraud, February 2008
Insurance Information Institute
 
 
 
⇒What else lies beneath?  "…the State Department of Health plunged (Galveston) bay fishermen into a new reality: Human action has tainted the bay's biology…The warning shows how hard it can be to repair environmental damage, years after the practices that caused it were stopped.
According to an unprecedented alert from the Texas Department of State Health Services, speckled trout and catfish from any part of Galveston Bay are deeply contaminated with two toxic compounds…the agency found that both fish had high levels of PCBs and dioxins."
 
"The contaminant levels in those two species were so pervasive and dangerous that healthy adults should not eat more than eight ounces of either fish per month."
 
"PCBs and dioxins were banned in this country decades ago… the compounds tripped off environmental alarms because they didn't degrade.
A generation later, that alarm is justified. It will be years before these compounds disappear from the bay and its wildlife, said Elena Craft, a toxicologist from the Environmental Defense Fund."
 
"Communing with nature, unfortunately, now requires constant awareness of civilization."
 
Excerpted from: Editorial - Hold the Line, Heedless practices of Texas industry now
poisoning sport fishing industry, Houston Chronicle 7/9/08
 
 
⇒Preempting Due Process.  "A leading drug company may be poised to win a landmark legal victory next fall. (Wyeth v. Levine)…
A medical-device company won such a victory in April. In Riegel v. Medtronic the Supreme Court determined that a product-liability lawsuit against Medtronic in a state court was preempted because the device had received FDA approval."
 
"Previous administrations and the FDA considered tort litigation to be an important part of an overall regulatory framework…product-liability litigation by consumers was believed to complement the FDA's regulatory actions and enhance patient safety."
 
"Drug and device companies have chosen an inauspicious moment to attack the right of patients… A series of pivotal reports on patient safety… has put the issue of patient safety in the national spotlight."
 
"Why should doctors be concerned about preemption? In stripping patients of their right to seek redress through due process of law, preemption of common-law tort actions is not only unjust but will also result in the reduced safety of drugs and medical devices for the American people."
 
Excerpted from: Perspective - Why Doctors Should Worry about Preemption,
Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D, New England Journal of Medicine
Vol 359: 1-3, July 3, 2008
 
 
 
 
⇒"...We are programmed to receive, you can check out any time you like, but you can never*"…whine or criticize.  "Across Texas over a recent three-year period, hospitals reported that 53 newborns with no obvious birth defects died unexpectedly. Medical blunders killed or crippled another 78 patients."
 
"Foreign objects… left in 218 patients. More than 120 times, surgeons cut into the wrong body part or wrong patient."
 
"Which hospitals bungled their jobs? The state knows, but, by law, you can't find out…the state no longer requires hospitals to own up to their mistakes, even anonymously. The Legislature let the law expire."
 
"Hospitals have been able to avoid making more than their errors public. Complaints, accreditation inspections, staffing numbers, infection rates — information that could help the public evaluate patient care — are also off limits."
 
"Public reporting sometimes "has a chilling effect," said Charles Bailey, general counsel for the Texas Hospital Association. So while hospitals are starting to open up, he said, "there's some reluctance because they're worried about getting sued or other implications."
 
Excerpted from: Texas hospitals wary of making complaints, errors public, by Darren Barbee, Ft Worth Star Telegram, 7-1-08
*Hotel California, The Eagles 1977
 
 
 JUNE 2008
 
⇒After 20 Years: Residents left with a “knife in the gut.”  "When the Exxon Valdez ran aground in 1989, Andrew Wills was a successful herring fisherman in Alaska and the owner of three canneries. The 11 million gallons of crude oil from the tanker destroyed the herring population and Mr. Wills’s fishing career, so he borrowed money to open a bookshop, a cafe and the Mermaid Bed and Breakfast…"
 
"Mr. Wills had expected to use his $85,000 share of the $2.5 billion punitive damage settlement against Exxon to pay off some of his debts. The United States Supreme Court decision on Wednesday cutting the damages to around $500 million means Mr. Wills will receive only $15,000, he said.
“After everything we’ve been through, that’s barely enough to cover payroll for a month,” he said. “This is a knife in the gut.”
 
"Across Alaska, plaintiffs in the long-running lawsuit against Exxon reacted to the decision with sorrow and rage, numbed only by relief that their legal saga is finally over."
Excerpted from: In Alaska, Rage and Sorrow Over Decision By CHRISTOPHER MAAG, NY Times 5-26-08
 
 
 
⇒Arbiters for Justice or Debt Collectors? "What if a judge solicited cases from big corporations by offering them a business-friendly venue... teaming up with the corporations' outside lawyers? …the same corporations [who] helped pay the judge's salary?"
 
"Yet that's essentially how one of the country's largest private arbitration firms operates. …Often without knowing it, individuals agree in the fine print of their credit-card applications to arbitrate any disputes... NAF, which dominates credit-card arbitration, operates a system in which it is exceedingly difficult for individuals to prevail."
 
"…behind closed doors…NAF sells itself to lenders as an effective tool for collecting debts. As of September, 2007, a NAF PowerPoint presentation aimed at creditors [potential clients] and labeled "confidential" promises "marked increase in recovery rates over existing collection methods."
 
"At times, NAF does this kind of marketing with the aid of law firms representing the very creditors it's trying to sign up as clients [The] marketing presentation, boasts that creditors may request procedural maneuvers that can tilt arbitration in their favor. "Stays and dismissals of action requests available without fee when requested by Claimant—allows Claimant to control process and timeline," the talking points state."
Excerpted from: Banks vs. Consumers (Guess Who Wins), Business Week, 6-5-08
 
 
 
 
⇒Lone Remaining Remedy: File a Complaint.  "After the Texas Legislature gave the board additional funds for enforcement in 2005,…the board [Texas Medical Board] has stepped up its investigations. By the end of fiscal year 2007, the board was investigating 1,300 cases…opened about 2,600 more, compared to 694 investigations and 1,900 open cases in 2004, according to TMB's Web site."
 
"The number of complaints the board receives from patients and family members also has increased dramatically, said Mari Robinson, the agency's director of enforcement. In the last two years alone, complaints have increased by 62 percent… “Most of the complaints are about quality of care,” she said."
 
"Robinson said several factors could be contributing to the increase… the number of doctors in Texas is on the rise,…because the Legislature has imposed caps on medical malpractice damages in Texas, more patients and family members are filing grievances with the board rather than filing lawsuits. And finally, more patients know about the complaint process than in the past, she said."
 
Excerpted from: Complaints against doctors increase, By MELISSA McEVER, Valley Morning Star, June 11, 2008
 
 
 
 
⇒Ambushed: KBR Employees.  "They deserve their day in court. Thanks to an appeals court…perhaps they finally will."
 
"The lawsuit was brought on behalf of (former KBR) drivers whose fuel convoy was ambushed on April 2004 (in Iraq)…Six drivers were killed. One is still missing… Fifteen were wounded."
 
"At issue is whether by questioning KBR's decision to send drivers into harm's way, the former workers are actually challenging military decisions or second-guessing their employer's judgment."
 
"…five years into the war… with the broadest deployment of civilian contractors in our military history, we're still dancing around the issue."
We hire civilians for work that used to be handled by the military, yet we offer them neither the protections given soldiers nor the rights of private employees."
Excerpted from: Loren Steffy Column, KBR workers caught up in quagmire, Houston Chronicle June 2, 2008
 
 
 
DECEMBER 2007
 
 
⇒Fine Print? Hardly. Mandatory Arbitration Clause.  "In its early incarnation, arbitration was designed as a way of resolving disputes outside of the courts, and it's often still used that way when both parties agree to it. But the mandatory arbitration provisions in consumer contracts are very different animals… These sorts of provisions, buried in the fine print of consumer contracts, have become de rigueur in everything from employment contracts to cell phone agreements...Most people don't even realize they've signed one".

"Arbitration seriously tilts the playing field in favor of businesses. Consumers have to pay the arbitrators just to hear their claims, unlike the public courts, where the taxpayers pay the judges. Arbitrators often charge hundreds of dollars an hour for their services".

"All of this is especially nefarious given that the vast majority of consumers who attempt to seek justice in mandatory arbitration lose…Public Citizen recently analyzed data the NAF provided to the state of California…Public Citizen found that in 94 percent of 19,000 cases, NAF ruled in favor of the businesses that hired them".
 
"One arbitrator handled 68 cases in a single day, awarding every penny that the big companies were seeking. In one case…the NAF also charged $1500 for a three-page document explaining the arbitrator's decision…".

Excerpted from: Suckers Wanted: How Car Dealers and Other
Businesses are Taking Away Your Right to Sue, Mother Jones, Nov 26, 2007
 
 
 
⇒Not So Thrilling: Amusement Park Rides"The CPSC has no employee whose full-time job is to ensure the safety of such rides. The agency’s 90 field investigators – who oversee 15,000 products, work from their homes and live mostly on the East Coast – are so overstretched that they frequently arrive at carnival accident scenes after rides have been dismantled".
 
"As a result, critics say, supermarket shopping carts feature a more standardized child-restraint system than do amusement rides, which can travel as fast as 100 mph and, according to federal estimates, cause an average of four deaths and thousands of injuries every year".
 
"State regulators and ride safety advocates say that this record is emblematic of wider problems at the CPSC, whose lagging efforts to keep unsafe toys and other children’s products from the marketplace have created a public outcry and have brought intense congressional scrutiny. Rulemaking by the agency has decreased during the Bush administration, and its officials say that budget and staffing constraints have made the commission vulnerable to industry pressure to adopt voluntary standards, or, in the case of fixed-site amusement park rides, no federal regulation".

Excerpted from: On Thrill Rides, Safety Is Optional,
Washington Post, Dec 4, 2007
 
 
 
⇒Room for Improvement: Texas Ranks 49th out of 50th for Health Care System Performance
"Politics, poverty and illegal immigration intersect here to make health care a thornier issue than in most states. And Texas, with legends of independence and gritty self-reliance, has rarely been at the forefront in creating government entitlements".

"RANKING TEXAS When it comes to health care, Texas is: • 49th out of 50 states and the District of Columbia for the overall performance of its health care system. • Last in the percentage of its residents covered by health insurance. • No. 2 state in the number of people without insurance: 5.5 million. • No. 1 state with the fastest-growing illegal immigrant population between 2000 and 2006.

SOURCES: The Commonwealth Fund; U.S. Census Bureau; U.S. Department of Homeland Security
Excerpted from: Politics, poverty, immigration entangle Texas health care, Dallas Morning News, 12-5-2007
 
 
NOVEMBER 2007
 
 
⇒Hmmm...TTLA 2003: "Tort Reform" hurts women, children and the elderly. Emory University School of Law 2007  "Tort Reform" hurts women, children and the elderly. "The results from our empirical analysis are consistent with our theoretical predictions. We find that the impact of tort reform varies substantially among demographic groups. When we consider the net effect of all the reforms in our study together, our results suggest that women, children, and the elderly do not enjoy tort reform's benefits as much as men and middle-aged people. In fact, they might even be harmed by reform".

Excerpted from: Shepherd, Joanna and Rubin, Paul H., "The Demographics of Tort Reform"
(November 2007). Emory Law and Economics Research Paper No. 07-17
 
 
 
⇒Insurance Industry: "We're just misunderstood." The insurance industry has realized it has a public relations problem.
That was a prime topic of conversation among 1,600 senior insurance executives at the annual meeting of the Property Casualty Insurers Association of America this week in Boston….
 
"Enhancing our image and reputation will not be easy, nor will it occur overnight. But it is possible, and we must make this a priority for PCI and the industry." [said the group’s president] PCI conducted focus groups in Florida this past year….
 
The pollster who conducted the research [is] Frank Luntz, chairman and chief executive of Luntz Maslansky Strategic Research….
[Luntz’ Advice to the Insurers]

• "You're supposed to be about safety and protection. Instead, you're about insecurity and anger."

• "You need to let them know you live in their neighborhoods, and your house was destroyed as well."

• "You need to make them see that you will make them whole again. That's what they want."

• "If Trent Lott comes to you with a claim for his house that was destroyed in Hurricane Katrina, pay it."

Excerpted from: 'Image is everything, insurers say,' 11/03/07, New Orleans Times Picayune
 
 
 
⇒Newsflash: Prop 12 Didn't Deliver, 'Ya think?   In its' October 19th issue, The Texas Observer provides an accurate and thorough assessment of the the distribution of doctors in Texas since the passage of Proposition 12. Below are a few highlights:
 
• "As of September 2007, the number of counties without obstetricians is unchanged - 152 counties still have none..."

• "Nearly half of Texas counties...have no obstetrician, neurosurgeon or orthopedic surgeon."

• "...21 Texas counties have no physician of any kind."

• "The TMA counts 186 new obstetricians in Texas since Proposition 12 passed.... Collin County...gained the most obstetricians." (34)

• "The pattern of doctors' opting to practice in more affluent, urban areas holds true for Texas' overall gains in neurosurgeons (36) and orthopedic surgeons (185) since 2003."
 
Excerpted from: Baby, I Lied, The Texas Observer, October 19, 2007
 
 
 
⇒How do you spell relief? R-E-G-U-L-A-T-I-O-N:  Although the volume of prescription drugs and drug ingredients coming into the country from foreign manufacturers in developing nations such as India and China has exploded in recent years, the Food and Drug Administration's budget for foreign inspections has not kept pace and will be lower in 2008 than it was in 2002, according to congressional investigators.

As a result, foreign drug and drug ingredient makers are inspected on average once every eight to 12 years, while American-based manufacturers must be inspected at least once every two years.

In addition, the investigators reported, FDA officials generally do not bring their own translators, and so in countries such as   China they rely on company-supplied translators to conduct inspections. They also have to tell foreign manufacturers in advance that they are coming, while FDA inspectors can go into American plants at any time unannounced.

Excerpted from: FDA's Foreign Inspection Budget Lean, Washington Post, 11/1/07
 
 
 
 
OCTOBER 2007
 
 
 
⇒Just Beneath the Surface...  Many Texans may not realize that the state's Railroad Commission is charged with regulating the safety of natural gas and oil pipelines.  Critics say the commission often acts as though it doesn't realize it, either.

Consumer advocates have questioned the commission's effectiveness and its ties to the industry it oversees in the wake of natural gas explosions that have killed at least nine North Texas residents and injured more in the last decade.

Now, documents produced as part of a lawsuit in an explosion last October that killed an elderly Wylie couple show that a top commission staffer changed an investigator's report, which had the effect of steering blame away from an underground pipe coupling that critics say should never have been used in Texas' notoriously shifting soil.

The commission has considered ordering the couplings' replacement, but chose to study them first. They remain in use under 100,000 North Texas homes.

Excerpted from: State official says report's shift away from
coupling as factor is based on evidence, not influence,
Dallas Morning News, Oct 21, 2007

Note: WFAA-TV reporter Brett Shipp and producer Mark Smith examined the possible hazards
posed by outdated natural gas couplings & explored why regulators
dropped a proposal to require replacement of the couplings.
This article is based largely on WFAA's research.
 
 
 
⇒Pleeeeeeease WASH your hands!  Nearly 19,000 people died in the United States in 2005 after being infected with virulent drug-resistant bacteria that have spread rampantly through hospitals and nursing homes, according to the most thorough study of the disease’s prevalence ever conducted.

The government study, which is being published Wednesday in The Journal of the American Medical Association, suggests that such infections may be twice as common as previously thought, according to its lead author, Dr. R. Monina Klevens.

If the mortality estimates are correct, the number of deaths associated with the germ, methicillin-resistant Staphylococcus aureus, or MRSA, would exceed those attributed to H.I.V.-AIDS, Parkinson’s disease, emphysema or homicide each year.
 
The study also concluded that 85 percent of invasive MRSA infections are associated with health care treatment. Previous research had indicated that many hospitals and long-term care centers had become breeding grounds for MRSA because bacteria could be transported from patient to patient by doctors, nurses and unsterilized equipment.  Numerous studies have shown that busy hospital workers disregard basic standards of hand-washing more than half the time.
 
This week, Consumers Union, the nonprofit publisher of Consumer Reports, called for hospitals to begin publishing their compliance rates for hand-washing.

Excerpted from: 'Deadly Bacteria Found to Be More Common',
New York Times 10-17-2007
 
 
 
⇒A Few Bad Apples... Did you know that only 5.9 percent of doctors are responsible for 57.8 percent of medical malpractice payments? The largest majority of doctors - 82 percent - never make a malpractice payment.

Two-thirds of doctors who made 10 or more malpractice payments were not disciplined at all by their state medical boards. Only 8.61 of doctors who made two or more malpractice payments were disciplined by their state board.

Source: Center for Justice & Democracy 'Spotlight on Justice'
 
 
 
⇒It's Football Season..."TLR" Fumbles . .  Last week the self-styled "Texans for Lawsuit Reform" website featured as a model supporter, a doctor whose record was far from stellar.
 
In a Houston Chronicle column from September 30th, reporter Clay Robison turned up information that the doc in question has had multiple lawsuits and complaints filed against him. According to the article, the Texas Medical Board accused him of providing substandard care for seven patients over the years, and in one case, the Board reprimanded said doctor and fined him $7,500 for a misdiagnosis that may have cost a 16-year-old girl her leg. The doctor is now retired, with complaints still pending against him.

According to Robison, "None of his professional problems was mentioned on the TLR Web site, but his profile was removed last week, within an hour after I informed a TLR spokeswoman about them."
 
Source: 'Failure to do a background check backfired on group,' Houston Chronicle, September 30, 2007
 
 
 
SEPTEMBER 2007
 
 
 
⇒Chamber Chatter.  President and chief executive of the U.S. Chamber of Commerce, Tom Donahue, “has repeatedly criticized Eliot Spitzer, [then] New York attorney general, who has brought prosecutions against brokerage firms, insurance companies and mutual funds.”
 
Said [now New York Governor] Spitzer, “I think he is a shill for guilty people, and Tom Donohue has never once found a crime that he couldn't justify, as long as it was committed by one of his dues-paying members.”

Source: Center for Justice & Democracy 'Spotlight on Justice'
 
 
 
⇒Drug Safety Study: Losing Ground:  The number of serious adverse events and deaths attributed to prescription medications has nearly tripled since the Food and Drug Administration initiated a system in 1998 to make it easier to report significant side effects according to the report in the Archives of Internal Medicine.
 
Researchers at the Institute for Safe Medication Practices in Huntingdon Valley, found twenty percent of drugs accounted for 87% of adverse effects, and the biggest offenders were painkillers and drugs that modify the immune system to treat arthritis. "The clear finding is that we are losing ground in terms of drug safety, and that ought to be of great concern," said Thomas J. Moore who led the study.

Adverse events are those defined as resulting in death, a birth defect, disability, hospitalization or requiring intervention to prevent harm. The number of such events grew from 34,966 in 1998 to 89,842 in 2005. During the same period, the number of deaths rose from 5,519 to 15,105.
 
 
Excerpted from: Adverse drug reactions rise sharply, study finds
LA Times, Thomas H. Maugh II, September 11, 2007
 
 
 
⇒Insurance Claims: 90% Good Hands, 10% Boxing Gloves.  Insurers often pay 30-60 percent of the cost of rebuilding a damaged home -- even when carriers assure homeowners they're fully covered, thousands of complaints with state insurance departments and civil court cases show.

Paying out less to victims of catastrophes has helped produce record profits. In the past 12 years, insurance company net income has soared -- even in the wake of Hurricane Katrina, the worst natural disaster in U.S. history.
 
Excerpted from: Home Insurers' Secret Tactics Cheat Fire Victims, Hike Profits,
08/03/07, Bloomberg.com.
 
 
 
 
⇒Mattel's Definition of 'Timely'.   The Consumer Product Safety Commission says that manufacturers must report all claims of potentially hazardous product defects within 24 hours, with few exceptions.  Mattel Chairman and Chief Executive Robert Eckert said in an interview that the company discloses problems on its own timetable because it believes both the law and the commission's enforcement practices are unreasonable. Mattel said it should be able to evaluate hazards internally before alerting any outsiders, regardless of what the law says.

You have to put it in context," he said. Mattel isn't withholding anything from regulators, he said, adding that the only question is "whether we reported the issue in a timely manner."

Excerpted from: Safety Agency, Mattel Clash Over Disclosures,
Wall Street Journal 9-4-2007
 
 
 
 
AUGUST 2007
 
 
 
⇒#1 Reason for Responsible Alcohol Sales.  Texas led the country in the number of drunken driving fatalities last year with 1,354, statistics released Monday by the U.S. Department of Transportation show. According to the Department of Transportation, there were 13,470 deaths nationwide last year involving drivers and motorcyclists with blood levels of .08 or higher, the legal limit for adults in the U.S. 
 
Excerpted from: 'Texas leads nation in drunken driving fatalities,'
Dallas Morning News (Wire Reports) 8-21-2007
 
 

D'oh! It’s Medical Errors, Stupid…  "Medicare will no longer pay the extra costs of treating preventable errors, injuries and infections that occur in hospitals, a move they say could save lives and millions of dollars."

"If a patient goes into the hospital with pneumonia, we don't want them to leave with a broken arm," said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services.The Centers for Disease Control and Prevention estimates that patients develop 1.7 million infections in hospitals each year, and it says those infections cause or contribute to the death of 99,000 people a year - about 270 a day."

"Dr. Kenneth W. Kizer, an expert on patient safety who was the top health official at the Department of Veterans Affairs from 1994 to 1999, said: "I applaud the intent of the new Medicare rules, but I worry that hospitals will figure out ways to get around them. The new policy should be part of a larger initiative to require the reporting of health care events that everyone agrees should never happen. Any such effort must include a mechanism to make sure hospitals comply."

Excerpted from: Medicare Says It Won't Cover Hospital Errors by Robert Pear, The New York Times, 8-19-2007

 

Who's Watching the Watchers?  "The unfortunate news that another 9 million toys tainted with lead paint or dangerous small magnets were recalled on August 14 underscores many problems. First, parents should understand that the government itself does not test products to ensure that they comply with mandatory standards -- that's left up to manufacturers." 

" The CPSC lacks the leadership, the money, the staff and the legal authority it needs to protect us from dangerous imported or domestically-produced products. This should also serve as a wakeup call to Congress that the headless CPSC needs a safety-oriented chairperson, more money, more authority and more staff."

Excerpted from U.S. PIRG: http://www.uspirg.org/issues/toy-safety

 

Over 90% of TLR PAC Contributions Come From Just 6 Donors.  "Mark McCaig ofTexans forIndividual Rights. “Campaign finance reports filed this week by Texans for Lawsuit Reform reveal that that more than 90% of the contributions to their political action committee came from just six donors. Additionally, these reports reveal that nearly 40% of contributions to the TLR PAC during the reporting period came from homebuilders."

"Mark McCaig, President of Texans for Individual Rights, stated 'While Texans for Lawsuit Reform claims to be a grassroots organization with over 15,000 members, their campaign finance reports show them to be nothing more than a front group for a small group of wealthy businessmen.'”

Source: Texans for Individual Rights Press Release, 7-19-2007

 

Straight from the Horse’s Mouth.  An impressive survey of Texas district court judges, just published in the Baylor Law Review that addresses frivolous lawsuits, jury behavior and the need for “tort reform” found:

  • Over 83% of the Texas district court judges had observed not a single instance of a “runaway jury” verdict on either actual or exemplary damages during the preceding 48 months.

"The survey results confirm that most Texas trial judges do not see significant numbers of frivolous filings by people who have no business suing, and plaintiffs with legitimate suits are much more likely to be under compensated than to receive any windfall. Two primary goals for tort jurisprudence are for the victim to receive full compensation and to deter the tortfeasor, and when victims are not fully compensated and tortfeasors are not deterred, neither goal is met."

Straight from the Horse’s Mouth: Judicial Observations of Jury Behavior and the Need for Tort Reform
Baylor Law Review, [Vol. 59.2] 2007

 

 JULY 2007

 

⇒Poll - hold corporations accountable.   The American Association for Justice distributed the following press release on July 12, 2007.  New Poll Reveals Voter Anxiety about Corporate Misconduct, Support for Strong Civil Justice System to Ensure Accountability and Fairness(Washington, DC)— A national poll of 2008 voters by Peter D. Hart Research Associates, Inc. reveals significant anxiety concerning corporate misconduct and large support among voters for a strong civil justice system to ensure corporate accountability and fairness. T he poll’s findings concludes:

  •  Americans are deeply worried about their nation’s future, and concern about corporate misconduct is a major source of their anxiety. “Worried swing voters,” who see corporate irresponsibility as a central problem, may play a pivotal role in the 2008 election.
  • Voters support the civil justice system as an important remedy for corporate misconduct, and reject legal “reforms” that restrict plaintiffs’ ability to hold corporations accountable and obtain fair restitution.
  • Voters will support candidates who defend the civil system over candidates who assail “frivolous lawsuits” and advocate “tort reform.” Pro-civil justice candidates not only command overwhelming support from swing voters, but also appeal to significant blocks of Republicans.

“This poll demonstrates overwhelming voter support for a civil justice system ensuring that those who have been injured by the wrongdoing or negligence of others can receive justice and fair compensation – even when taking on the most powerful interests,” said American Association for Justice CEO Jon Haber. “It shows wide support among voters for a vital civil justice system continuing to provide a level playing field for people to hold corporations accountable when they seek to evade responsibility for their misconduct. 

American Association for Justice, press release on July 12, 2007

 

⇒Small-business owners don't lose sleep over frivolous lawsuits.  "Still, research by legal reform advocates suggests that most small-business owners don't lose sleep over frivolous lawsuits. A survey released in May by the Institute for Legal Reform found that more than half of small-business owners said they were "not too concerned" or "not at all concerned" about getting sued, and in 2006 members of the National Association of Manufacturers ranked fear of litigation last on a list of 10 factors hurting their businesses." 

Excerpt: After the $54M Dry Cleaner Lawsuit,www.businessweek.com, July 9, 2007.