Consumer Advocate Legal Update : Class Action Lawyers & Attorneys : Khorrami Pollard & Abir Law Firm : Mass Torts, Products Liability

A recent medical review article promoted the benefits of smoking for long-distance runners. The article argued that the increased serum hemoglobin levels, larger lung volume, and reduced body weight associated with smoking cigarettes could be beneficial for running. Although this may sound like it came from the parody newspaper The Onion, this article was published in the highly respected Canadian Medical Association Journal, which ranks 9^th out of the top 40 medical journals. Of course, the article was meant to be tongue in cheek. Ken Myers, the author and a long-distance runner himself, wrote the article to point out how nearly any crazy theory can be supporting by presenting only supporting data or improperly correlating or extrapolating data.

Medical review articles can have subjective bias. Sometimes, the researcher will have a noble goal which allows his or her research to be subjectively tainted, a phenomenon known as “white hat bias.” Other times, data may be entirely fabricated to support a certain position, such as the case of medical journal publisher Elsevier publishing fake medical journals for Merck and other pharmaceutical giants. Part of the blame can also be placed on newspapers for not understanding or explaining the difference between correlation (when A happens, B also likely happens) and causation (B happens because of A) and generalizing very specific findings into sensationalized larger conclusions. Another important consideration that newspapers usually neglect is that medical studies need context and do not make sense without knowing what similar studies have shown.

Consumers do not need to be overly concerned with scientific minutiae on a daily basis, but it is important to not base important life decisions, such as which life-saving drugs to request of a doctor or avoid, off of a misunderstanding (or occasional fraud) from a medical review article. Well-informed skepticism is always a healthy choice!

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 As a plaintiffs' attorney focusing on mass tort pharmaceutical litigation, I’ve come to develop a special hatred for most pharmaceutical companies, considering them amongst the lowest scum of the earth. Sadly enough, I have recently found a lower scum, doctors who are puppets for the deceptive pharmaceutical companies.

We as a society hold doctors on a pedestal. Theirs is a profession of character and integrity, one that we all at one point might have aspired to become a part of. Heck, I would have been a doctor had I not realized that I couldn’t stand blood or touch a needle. So it comes as no surprise that I’m thoroughly disappointed and disgusted when I read a story about a doctor who performs unnecessary medical procedures for kickbacks and personal favors! 

Recently, the Senate Finance Committee started investigating Dr. Mark Midei of St. Joseph Hospital in Towson, Maryland, after a numbers of articles in The Baltimore Sun alleged that he was improperly implanting hundreds of cardiac stents in patients for blockages or narrowing of the coronary arteries which are typically treated without a stent. 

The 170 page report released after the investigation states that he “may have implanted 585 stents which were medically unnecessary” from 2007 to 2009, reaping $6.6 million for those procedures, of which $3.8 million was paid for by Medicare. 

The report also delves into the inappropriately close relationship between Dr. Midei and Abbott Laboratories, the manufacturer of the stents that he was implanting. Internal company emails subpoenaed for the investigation indicate that Abbott ranked Midei among its top-volume doctors and rewarded him with research money and VIP trips. Despite the ethical and legal issues that surfaced about Dr. Midei, Abbott still hired him as a consultant to assist the company in marketing its stents in Japan and to help launch its newest stent, the Xience V.

Unfortunately, this isn’t the first physician caught in bed with a pharmaceutical company and definitely won’t be the last. Issues like this highlight the need for more disclosure of the payments and incentives pharmaceutical companies provide to doctors for promoting their products, like those discussed in recent blogs posted by Andrew Brown and Abirami Gnanadesigan.

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On March 21, 2010, the United States Congress passed the Health Care and Education Affordability Reconciliation Act of 2010 (H.R. 4872). This legislation will reform the nation’s broken health insurance system by providing medical coverage to uninsured, vulnerable Americans who would otherwise not be able to receive adequate health care. Passage of this Act is truly a democratic success and a milestone in our nation’s history.

Such change does not come cheap. According to the Congressional Budget Office, health care reform will cost an estimated $940 billion over the course of 10 years. To offset the costs imposed on the government, the Act appropriately imposes tax increases on certain classes and industries. One such area is the medical device manufacturing industry.

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The insurance industry has done an incredible job portraying medical negligence as a potential source of savings to health care costs-what a myth! A close look at the numbers reveals that insurance companies enjoy record profits while physician and patient premiums continue to increase exponentially. The reality of it is that medical negligence lawsuits hardly contribute to America’s insurmountable health care costs. Undisputedly, an analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with malpractice caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.

A closer look at the data clearly indicates that no correlation between the cost of malpractice premiums and health insurance premiums. In fact, with more than 30 states enforcing MICRA’s malpractice caps, insurance companies are enjoying extraordinary high levels of profit while approximately 98,000 patients are killed annually by preventable medical errors. (From To Err Is Human: Building a Safer Health System Executive Summary - Committee on Quality of Health Care in America, Institute of Medicine). Its time for America to call the insurance companies on their bluff and expose the facade that medical negligence caps as a source of savings to health care costs. Logically, the true source of any potential savings is the underlying principle of reducing preventable medical errors. It follows that preventing medical errors will lower health care costs, reduce doctors’ insurance premiums, all the while protecting the well-being of the patient. So, lets take it back to the basics. If patient safety becomes the overarching goal by focusing on reducing/preventing medical errors, don't all the related problems seem to go away?
 

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In the ongoing debate over health care, Republicans and lobbyists for Big Business continue to clamor for tort reform. To understand tort reform, one must first understand what a tort is. Simply put, a tort is an intentional or negligent act which causes injury (physical, monetary, and/or mental) to another party. When a tort has been committed, the injured party has the right to sue her wrongdoer in civil court. Some common examples of torts include medical malpractice, negligence, and strict products liability. Tort reform refers to legislative measures designed at limiting the amount of damages available to plaintiffs who take legal action for their injuries.

Today’s campaign for tort reform is by no means new or unique. In fact, the tort reform movement was born in the early 90’s by tobacco industries looking to dodge liability in failure to warn and personal injury cases. From its inception, the campaign was designed to appeal to a broad range of corporate interests. It didn’t take long for the pharmaceutical, chemical, insurance, and automobile manufacturing industries to jump onboard the tort reform bandwagon. To date, these industries have collectively poured millions of dollars into public relations campaigns aimed at deceiving the public. The message: Trial attorneys and injured patients file frivolous lawsuits in search of deep pockets and, in turn, drive up health care costs for average, hard-working citizens like you!

These accusations need to be set straight. Before we get into the real motivations behind tort reform, let’s hit the violin music and dim the lights (a little more please…) and consider the real and convincing facts. According to the Institute of Medicine, 98,000 patients die annually as a result of medical error, making medical negligence the sixth leading cause of death in the United States. Remember now, this is the number of patients who die each year, not the number of people who are left scarred and seriously injured for the rest of their lives. While 46 states have enacted some version of tort reform, the cost of health care continues to sky rocket as doctors have begun practicing “defensive medicine” (ordering of unnecessary medical tests and procedures) out of fear of medical liability. 

Medical malpractice insurance companies, the most zealous advocates of reform, are and will forever be the sole victor in the tort reform movement. In the last 10 years alone, the medical malpractice insurance industry has seen a 47% increase in profitability. According to the American Association for Justice, in 2008 the average profit of the 10 largest medical malpractice insurers was higher than 99% of Fortune 500 companies and 35 times higher than the Fortune 500 average. These profits have been pocketed by insurance companies and have never passed savings to doctors or injured patients. So really, tort reform is just another handout to corporations and insurance companies. Moreover, placing caps on victim recovery, suggesting shorter statute of limitations periods, and proposing the creation of special medical courts to try malpractice cases, are nothing more than corporate attempts to restrict victim access to the legal system for redress of harms and wrongs. 

Learn more about the role of our civil justice system in the current health care debate! Visit www.98000reasons.org to find out how you can help put people over profit!

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A little while ago, I was at an event where an informal question and answer session was being conducted between two candidates for Assembly. One of the topics that stirred up a lively conversation was California’s Malpractice Injury and Compensation Reform Act of 1975(MICRA). When asked whether there should remain a $250,000 cap on pain and suffering in medical malpractice claims, one of the candidates said yes but that the cap should be raised. This response made little sense to me. Besides the fact that a number of sources have reported, that the main purpose of MICRA, which was to reduce healthcare costs, has been unsuccessful for 30 years, I don’t understand how raising the cap would achieve that goal any faster. If this candidate believed that there needs to be caps in order to keep healthcare costs down, then I don’t see how raising the caps would help. In other words, if the costs are down, which they are not, then why fix what isn’t broken. If the costs are high and we still need the cap to lower healthcare costs, then how would raising the cap lower costs when the existing cap did nothing to lower the costs for over 30 years?

It worried me that someone, who was educated, intelligent, and running for office, did not see the flaws in their understanding of MICRA. That they believed that the answer to this ongoing debate was to simply “raise” the cap, with no real thought as to what exactly the implications of that may be, if any. The bottom line is that more and more attorneys are unable to take malpractice claims for financial reasons, insurers reap the benefits of less and less lawsuits, and healthcare costs continue to rise so it seems that the ones who continue to be hurt by this Act are the very people whom the Act was intended to protect, the injured consumers.
 

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These days we hear a constant refrain from media pundits and politicians that there can be no meaningful health care reform without tort reform. They maintain that the way to save real health care dollars in the process of revamping the health care delivery system is to include provisions in the legislation that would put an end to “frivolous” lawsuits. The argument is that “frivolous” law suits drive up the cost of health care by causing doctors and hospitals to charge more for the care they deliver and these costs get passed on to the consumer in the form of higher insurance premiums and medical bills. For the most part, this argument goes unchallenged. Because there is little media or public debate over the issue, it is largely accepted as true that nearly all medical malpractice lawsuits are frivolous and should be markedly curtailed. But who would be the real losers and winners if patients lost the right to sue for medical negligence?

The term “frivolous lawsuit” refers to a silly or trivial case with no sound basis in fact or law. Put it another way, it is a case that is a waste of the litigants time and money.  The most common example  voiced by prospective jurors when the inevitable issue of “too many lawsuits” or “frivolous lawsuits” comes up during jury selection is the McDonald’s case. Advocates of tort reform have made a convincing argument, believed by most people that the case was simply silly and did not belong in the court system. The real facts are virtually unknown.  In at least one case of which I am aware, the judge interrupted voir dire to accurately explain the facts to prospective jurors.  He explained that the 79 year old plaintiff sustained third degree burns to her genital area when she spilled scalding hot coffee purchased at McDonald’s. McDonald’s ordered it franchisees to sell their coffee at 190 degrees F (water boils at 212 degrees) and refused to change their policy even though they had settled over 700 coffee burn claims. The plaintiff was hospitalized for 7 days and underwent surgical skin grafting. McDonalds offered her $800 to settle her claim.   The jury awarded her $160,000 in damages and punitive damages equal to two days profits earned by McDonald on its coffee sales. Because of the media barrage surrounding frivolous suits, the uninformed continue to equate medical malpractice lawsuits to the McDonalds case.

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In a recent case that affects every personal injury attorney, a California appellate court held that the defendant in a premises liability case should be allowed to put on evidence that the plaintiff’s injury was made worse by medical malpractice and that non-economic damages should be apportioned accordingly.

Henry v. Superior Court (2008) 160 Cal. App. 4^th 440, held that Civil Code section 1431.2 (Proposition 51) limits an original tortfeasor’s liability for non-economic damages to those directly attributable to his or her own fault. Where a plaintiff is further injured by medical negligence and where the damages can be divided by causation into distinct component parts, liability for each individual component part may be considered separately. 

In Henry, a swimming pool contractor suffered an injury to his shoulder when he fell at a homeowner’s property. The contractor sued the homeowner. At trial, the homeowner attempted to put on evidence that the contractor’s injury was aggravated by Kaiser’s medical malpractice. Kaiser was not a defendant. The court preclued the evidence o f Kaiser’s negligence and the defendant homeowner filed a writ of mandate. The court of appeal reversed holding that “the homeowners, if negligent, were solely responsible for the initial injury; liability for the indivisible enhanced or aggravated injury, however, was properly apportioned between them and the hospital’s physicians in accordance with the rules of comparative fault and Civil Code section 1431.2”.   

This ruling has implications for every aspect of personal injury practice including case selection, identification of defendants, discovery and trial presentation.

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