Kentucky Law Review

MEDICAL: 238,337 potentially preventable deaths of US Medicare patients during three year period shows where the real problem lies in the tort reform crisis? Is the AMA, KMA, and Chamber of Commerce listening?

I once heard it said the best remedy for "tort reform" was for the doctors to quit killing patients.  The following story from Day on Torts referencing a study posted at seems to make the point, again.  Of course, the American Medical Associal, the Kentucky Medical Association, and the U.S. and Kentucky Chamber of Commerce still believe the answer is capping the recovery and denying claimants their right to a jury trial so that medical malpractice insurance can remain affordable (but that is another story; see, e.g., Insurance Industry Profits Through the Roof!; and even in Florida - Health Insurers Enjoy $550 Million in Profits in Florida).

UPDATED with story on insurance industry outlook for next year in a pro-insurance web site indicating a pretty good year financially and any issues were "cyclical" and based on "ROI" or returns on investments! Click here.

As I have said many times before, the debate over insurance company profits and their causes is not a slam dunk in favor of the insurance industry as portrayed by many of their pundits.  And to take away the citizens' right to a jury trial for the benefit of a short term profit at the expense of denying full and fair compensation to injured people is not a very good idea.

Medicare Deaths

"From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study."

So begins this article found on the MSN website.

Now, do not read more into this story and assume that every failure to prevent a preventable death constitutes negligence.  However, it does raise concerns over the negligence aspect. Furthermore, the manner in which these numbers were obtained and the case by case analysis to conclude the death was preventable are not above question either.  In any event, "patient safety errors" AND "preventable deaths" in the same sentence involving 238,337 lives lost is a red flag.

Appalachian News Express editorial entitled "With malpractice claims declining, insurers should be held accountable" busts the medical insurer's claims for higher premiums is not accurate

The following opinion-editorial from the Appalachian News Report provides a stark contrast with positions taken by the Kentucky Chamber of Commerce, the Kentucky Medical Association, and the Kentucky Institute of Medicine on the need for drastic revisions to the civil justice system in Kentucky. UPDATED. I apologize for not giving credit to the actual writer, Joanne Doroshow, who tendered the piece to the App. News Express!!

And those concerns raised in the Appalachian News Report editorial were noticeably absent from a recent "State of Affairs" episode decrying the loss of physicians in Kentucky and using the "frivolous" lawsuits as the whipping boy for the problem when there is another side to this issue.

Again, the other side of the story was glaringly absent in the "State of Affairs" story which did nothing more than present one side of a lobbying groups presentation which relied upon two listeners to question the claims!

Fair and balanced? 

Just remember it took nearly two thousand plus years of Anglo-American jurisprudence to develop a civil justice system in which compensation was based upon the injuries and damages sustained by the victim rather than the wrongdoer's ability to pay AND for that determination to be made by a jury selected from the community. 

First the op-ed piece, followed by a link to the puff piece from State of Affairs.

With malpractice claims declining, insurers should be held accountable

In 1997, Kentucky resident Bill Rogers, then 52-years-old and married to his wife Lela, went to the hospital for a treatable infection on this thigh. Doctors began treating him alright — unfortunately, with the wrong antibiotics. The infection got worse and spread. Within a month, doctors had to amputate Bill’s penis.

In the heated debate over medical malpractice insurance for doctors, there is typically little discussion of cases like Bill Rogers. Indeed, each year up to 98,000 people die from medical errors in hospitals. Hundreds of thousands more are injured, many in catastrophic and life-altering ways like Bill.

Rather than helping to reduce errors and weeding out the small number of doctors responsible for most malpractice payments, the insurance industry has focused its efforts on blaming patients.

They said that patients who file legitimate medical malpractice lawsuits, like Bill Rogers, are forcing them to raise doctors’ insurance rates. At least that’s what they tell lawmakers and the public.

What they tell Wall Street, however, is a different story. As revealed in a new report by former Missouri Insurance Commissioner Jay Angoff, the CEO of APAC, one of Kentucky’s four medical malpractice insurance companies, had what Angoff called two ebullient conversations with Wall Street analysts last year.

The executive told these analysts that because of how little the company had been paying out in malpractice claims, its claims managers now had little to do. In response to a stock analyst’s comment that “the golf games of those claims managers must be pretty good,” the CEO responded, “we’re trying to turn them into the Maytag repairman.” He also said that malpractice claims have decreased to such an extent that there is not enough work for malpractice defense lawyers.

Indeed, based on data from medical malpractice insurance carriers’ Annual Statements filed under oath each year, Angoff found that all four of the leading Kentucky malpractice insurers have been paying out substantially less in claims than they initially estimated they would pay out. Doctors have been overcharged for several years as insurance industry surpluses have ballooned to excessive levels.

Clearly, this study raises continuing concerns about the accuracy of the data submitted by insurance carriers to regulators, and the legitimacy of the industry’s statements about why doctors have been price-gouged. It seems clear that lawmakers have been misled about the medical malpractice insurance industry’s financial condition and the reasons behind the unfair increases in insurance premiums for doctors. Incredibly, under current state law, the Kentucky insurance commissioner has no authority to order refunds to doctors who have paid excessive rates.

Yet despite unfair price-gouging, Kentucky is still attracting plenty of physicians. According to American Medical Association data, the overall doctor pool in Kentucky has increased every year over the last decade, an total increase of 2,302 doctors.

Nobody denies that doctors’ insurance rates sometimes reach burdensome and unfair levels. But time after time, the data teaches us the same lesson: weak regulatory laws and insurance industry mismanagement are the culprits. And while the vast majority of doctors are devoted and competent professionals, a small minority commit egregious malpractice that destroy innocent patients’ lives, like Bill Rogers. Let’s not blame patients for insurance problems they did not create.

And here is the program from wfpl.org on Feb. 8, 2008.

Is There a Physician Shortage?

As little as 10 years ago, the US had an oversupply of physicians. My how times change. According to a recent report released by the Kentucky Institute of Medicine, Kentucky is already near the bottom of the barrel, ranking 32nd out of 50 in patient to doctor ratio. With factors such as healthcare costs, aging population and litigation concerns on behalf of physicians, the shortage is predicted to worsen. So what is the solution? How can we assure adequate physician levels in both metropolitan and rural areas of the state? Join us on Friday when we explore the issue of the coming physician shortage. Continue the conversation on our weblog, www.soablog.org.

Listen to the show

And a program last week had an interesting link which raised another issue seemingly ignored within the context of a claimed physician shortage, eg. Doctors Turning into Managers in Record Numbers. 

Of course, claiming there is a shortage does not a shortage make as the number of physicians may be disproportionately placed based upon geography, specialty or a host of other factors.

TORT DE/REFORM: Is West Virginia a Judicial Hellhole? Hell no, or so say the numbers

My home state of W. Va. seems to be getting a bum rap by the US Chamber of Commerce and the American Tort Reform Assoc.

A recent study confirms part of this.  The following is the story by the AP.  But the complete report entitled The Future of the West Virginia Judiciary: Problems and Policy Options by political science professors Richard Brisbin and John Kilwein.

New state report finds decline in ‘tort’ filings

By Lawrence Messina
Associated Press

CHARLESTON — Researchers at West Virginia University report finding a good deal of sound and fury, but few facts to support the notion that the Mountain State is a “judicial hellhole.”

Available data mined by political science professors Richard Brisbin and John Kilwein shows that the number of civil cases filed in the state’s courts dropped by nearly 10 percent between 1984 and 2005.

National statistics, meanwhile, suggest that “tort” filings — lawsuits that seek damages for alleged injuries or wrongs — are at a 10-year low. And West Virginia ranks 46th among the states for cases filed per-capita, the pair write in the latest issue of the West Virginia Public Affairs Reporter.

But as the authors note, such figures have yet to refocus the ongoing portrayal of West Virginia as a place beset by meritless lawsuits and overly generous juries.

“Business interest groups and the media produce stories about abusive litigation that neglect important contradictory information, rely on erroneous information, make assumptions based on inaccurate anecdotes, or use inadequate evidence and slogans generated by the ’research’ arms of interest groups who neglect normal standards and practices of empirical social scientific inquiry,” the authors concluded.

“As a social scientist, what is so troubling is looking at what they do. It’s a totally unscientific, self-fulfilling cycle,” Kilwein, with WVU’s Institute for Public Affairs, told The Associated Press. “To them, we’re this hellhole without them ever trying to measure whether we are.”

An example is the much-touted, so-called “tort tax.” It purports to reflect the cost of “frivolous” lawsuits on each household. The underlying data cited in that claim “provides only an inferential ’estimate’ of the economic costs of personal injury litigation,” the article said.

On this topic, the researchers take to task “Unleashing Capitalism.” Edited by their WVU colleagues, the recent book advocates a libertarian view of the state and its problems.

The relevant chapter “argues that the cost of legal services in the state is growing faster than state domestic product and thus is harmful to business.” Brisbin and Kilwein contend that the chapter “mixes personal liability costs with the costs of other categories of all other legal activity (family, contract, property, administrative, bankruptcy, taxation, and criminal).”

Michael Hicks, a Marshall University researcher who compiled that chapter, questions whether Brisbin and Kilwein understood his findings or the general effect of civil litigation on economies.

Kilwein disagrees. The “tort tax” claim has also been challenged by other groups, including FactCheck.org when it became a topic of a political ad from the U.S. Chamber of Commerce.

“Even the author of the study cited by the chamber says its ad is ’misleading,”’ the nonpartisan analysis group found. “The fact is his study makes no attempt to specify which lawsuits are legitimate and which can be considered abusive. Furthermore, the study specifically warns against drawing any conclusions about the costs and benefits of the judicial system and even acknowledges that the benefits could outweigh the costs.”

Brisbin and Kilwein echo that view. They wrote that they “could locate no independent scholarly analysis that employs actual data on insurance payments for personal injuries and data on court damage awards and insurance costs in a multistate comparative research design.”

Toward that end, the authors identify 11 pieces of data that could shine a bright light on the civil justice system — if someone would actually collect them. They include figures reflecting insurance payouts, compensatory and punitive damage awards, lawyer fee charges and rulings by judges that declare specific lawsuits frivolous.

“It would be useful for the Legislature to require the courts to keep records on how many Rule 11 motions are filed, granted, rejected, and settled,” the article noted, citing the mechanism meant to root out meritless pleadings.

Hicks, the Marshall economist, said some of that data is already available. Collecting the rest, though, “simply puts very costly burdens on courts and state and local government that is unjustified,” he said.

Kilwein isn’t holding his breath that the U.S. Chamber and its allies will fund the necessary research, even though they’ve spent millions advocating “tort reform.”

“I think the interest groups don’t have any interest in the data being collected,” he said. “They don’t need to. They’re true believers ... It’s almost like a religion for those folks.”

And the ongoing campaign to paint West Virginia as lawsuit-happy continues. The business-backed American Tort Reform Association is slated to release its annual “Judicial Hellholes” survey later this week.

Past editions have cast West Virginia’s as the nation’s worst legal climate. They have also been prone to error. One falsely reported that chemical exposure class actions filed in several other states had been filed there. Another labeled Gov. Joe Manchin as “Governor Bob Manchin III” and Ohio County Circuit Judge Arthur Recht as “Arthur Hecht.”

Bolstering Brisbin and Kilwein’s research is their survey of West Virginia’s magistrates and circuit and family court judges. More than half the circuit judges responded, and none of those agreed that the state has suffered “explosion of frivolous litigation.”

“When asked what is the greatest problem facing the West Virginia Courts, no circuit judge cited frivolous civil lawsuits,” the article said.

They and the other judicial officers queried instead identified other concerns, including pay and a spike in family court filings. The 2005 mail survey also found that only one-fourth of the circuit judges supported the current method of partisan elections to select the state’s judiciary.

Kilwein said he hopes the Legislature and other policy makers embrace those results as well.

“The family courts are getting hit hard. That’s where we’re having a problem,” he said. “The courts are busy. They’re underfunded. I think the people who work in the courts do a fantastic job with limited resources.”

TORT DE/REFORM: "Frivolous lawsuit costs small business owner $300k in legal fees"

Interesting post raising the spectre of frivilous business litigation as a cause of concern.  Hello, Chamber of Commerce. Hellow American Tort Reform Assoc.  Chew on this one for a little bit.  Found at the Tort Deform Blog.

Frivolous lawsuit costs small business owner $300k in legal fees

Do frivolous lawsuits exist?  Absolutely.  And the best place to find them isn't in personal injury lawsuits, but in business v. business litigation.  For example:

Luxury handbag maker Louis Vuitton claimed a Las Vegas company infringed on its trademark with furry "Chewy Vuiton" dog toys, but a federal appeals court refused to bite....

Pamela Reeder, co-owner of Haute Diggity Dog, said she was relieved by the outcome of the case, which has cost more than $300,000 in legal fees for the company that started in her guest bedroom in August 2004.

Law.com - 'Chewy Vuiton' Wins Trademark Suit

Groups like the American Tort Reform Association and the U.S. Chamber of Commerce don't like to talk about frivolous business litigation, because they receive millions of dollars per year in funding from the businesses who routinely file these frivolous business lawsuits.

And the TortProfs Blog had a post of note entitled "Tort Costs" Decline.

Towers Perrin has released its 2007 Update on U.S. Tort Costs Trends, which is available here. "Tort costs" are defined as: 1. benefits paid or expected to be paid to third parties, 2. defense costs, and 3. administrative expenses.

BUSINESS: U .S. Chamber of Commerce's Institute for Legal Reform proposes a new code of conduct for state attorneys general.

The West Virginia Record, the pro-business, Chamber of Commerce funded, publication reports that the U .S. Chamber of Commerce's Institute for Legal Reform on Wednesday proposed a new code of conduct for state attorneys general.

The Chamber has directed its ire for some time against lawyers representing those who are injured, and now they have spread their net to influence the manner in which the chief law enforcement officer in a state should operate.  Interesting, and worrisome for those who need protection.

The key to all this is the administration of justice, justice for all.  And, the purported fair sounding name of a political action special interest group such as the Institute for Legal Reform (ILR) does not mask its real intention of protecting insurance and big business, period.

The timing of this story is of interest to us in Kentucky as we are about to vote for our next Attorney General.  Stan Lee has already positioned himself as a pro-business advocate; and Jack Conway has indicated his concerns for all citizens and cosumers in the Commonwealth.

ILR proposes code of conduct for AGs [click here for entire story]
WASHINGTON, D.C. - Citing a need to end prejudicial practices, the U.S. Chamber of Commerce's Institute for Legal Reform on Wednesday proposed a new code of conduct for state attorneys general.

The ILR unveiled the code and the results of a poll of a group of attorneys general at its eighth-annual Legal Reform Summit.

MEDICAL: More females injure ACL

With de facto tort reform being evidenced in jury verdicts that award nothing for pain, suffering, anguish and inconvenience in cases of broken bones, back surgery, and near medieval torture from months of time-consuming and arduous physical therapy, all of which are accompanied by prescription pain medications, with a further discount by at least one Court of Appeals decision sluffing off the zero verdict because the claimant had a "high pain threshhold", I thought the following story on a knee injury might enlighten some that injuries do hurt and have consequences as lives are affected, schooling activities adjusted, and hopes diminished:

More females injure ACL COURIER JOURNAL

Maddie Tonini, a senior at Manual High School, started playing soccer competitively when she was 8. "It's always been my sport," she said. But in the fall of 2005, she was felled by an injury to the anterior cruciate ligament of her right knee. There were three loud pops she'll never forget. But she's not suffering alone. "Female ACL injuries are five times greater in soccer and eight times greater in basketball," according to Dr. David N. Caborn, a professor of orthopedic surgery at U of L.

Environment: Kentucky, Indiana, and West Virginia rated among the FIVE LEAST GREEN states in the nation.

According Forbes story, the Bluegrass State is not so "green".  In fact, Kentucky is the 45th least green state in the nation.  Followed by 46 - Mississippi; 47 Louisiana; 48 Alabama; 49 Indiana; and 50 West Virginia.

Now, who is going to protect the quality of life in these states from big business and little government regulation?  OK, I will defer those questions on why the Chamber of Commerce, insurance industry, and big business wish to not only roll back regulations protecting our environment but also cripple with labels the "trial lawyers" and "class action" lawsuits under a mantra of job security. 

I wonder if there is any correlation with health and medical issues since the factors examined were "carbon footprint, air quality, water quality, hazardous waste management, policy initiatives and energy consumption"?  I will let someone else take a look at that.

Who's the "greenest"?  Vermont!

For the list, click here.

For their methodology?

A bit about our methodology--we ranked each state in six equally weighted categories: carbon footprint, air quality, water quality, hazardous waste management, policy initiatives and energy consumption.

Because carbon dioxide is the most prevalent greenhouse gas, carbon footprint provides a fairly good example of overall emissions levels. For air quality, we have relied on the American Lung Association's 2007 State of the Air Report to determine which metro areas have the best and worst pollution. Because EPA's most recent comprehensive data on water quality is five years old, we have relied on PIRG's water assessment released in October 2007 to complete our analysis in that area. Each state's hazardous waste management per capita has been determined using the most recent information available (2005) from EPA.

For our rankings on policy initiatives, we use the American Council for an Energy-Efficient Economy's energy efficiency scorecard, released in June 2007. Regarding energy consumption and lifestyle choice, we examined a number of factors, including vehicle miles traveled and the number of alternative fuel and hybrid-electric vehicles per capita by state, as well as the number of buildings that have received the U.S. Green Building Council's energy efficient "LEED" certification. We have also relied on information from the Energy Information Administration, the Environmental Protection Agency, Department of Transportation, the Natural Resources Defense Council and the Sierra Club. All data are the most recent available.

Thanks to Marcia Oddi from Indiana Law Blog for this lead in her story "Environment - Indiana listed as next to last "greenest" state by Forbes".

ELSEWHERE: "CALA launches new Web site spotlighting 'broken' legal system" in W.Va.

The attacks by business and special interest groups on the West Virginia judicial system and the jury system continue as shown in the following story:

CALA launches new Web site spotlighting 'broken' legal system
W.VA. RECORD CLICK ON POST FOR ENTIRE STORY
CHARLESTON -- A state legal reform group has launched a new Web site to draw attention to what it calls West Virginia's "broken lawsuit system."  West Virginia Citizens Against Lawsuit Abuse today unveiled www.wvClosedforBusiness.com. The group says the legal system is one reason why Gov. Joe Manchin is conducting a poll to change the "Open For Business" slogan that currently is on welcome highway signs.

Workers Compensation: McDonald's Trial Highlights How an Employer Might Use or Abuse the "Exclusive Remedy" Provisions as a defense

Lawyers in the "know" on the relationship of "exclusive remedy" provisions, "intentional conduct", and tort liability established by Kentucky's Workers Compensation Act were probably disturbed by this bit of cross-examination in the Strip Search Hoax lawsuit against McDonald's being tried in Bullitt County.

Disturbed to the extent of how a law designed to protect injured workers could possibly be manipulated by an employer to deprive a claimant of the full protection of the laws!

The story  found in the Courier-Journal was entitled Testimony could hurt McDonald's.  Although the story by Andrew Wolfson contains excerpts of excellent cross-examination by Kirsten Daniel on behalf of the injured Plaintiff Ogburn showing how there is always "more to the story", there was one bit of cross-examination which should have been a wake-up call to those who are considering changes to the workers compensation laws and the need for it to achieve its purpose and PROTECT the injured workers by plugging a possible hole in the system. Here is an extract of that cross-examination:

Area supervisor Jacque Heck, who was in charge of the Mount Washington store and several others, acknowledged on cross-examination that a manager altered Ogborn's time records to show that she was working at the time of her ordeal.

After initially claiming she didn't know why anyone at the company would do that, she conceded that one of McDonald's defenses is that Ogborn was on duty and cannot sue because her damages would be covered by worker's compensation.

"Louise wasn't working when she was stripped, spanked and sexually assaulted, was she?" one of Ogborn's lawyers, Kirsten Daniel, asked Heck.

"No, ma'am," she answered.

Obviously this is only one witness's testimony which may or may not be an accurate acknowledgement of the existence of a fact involving the actual altering of records, since a few questions and answers does not paint a complete picture of the defense or the evidence.  However, it is nonetheless a damning acknowledgement to the extent that employers do know the workers compensation laws and the advantages and disadvantages of the benefits to the employer. 

Whether or not any employee was "on the clock" at the time of an incident is a critical and technical component of any analysis as to potential remedies for an injury.  For example, the "exclusive remedy" provisions of the Workers Compensation Act can be used by both employers and third parties to lock a claimant into a single source of recovery under the Workers Compensation Act for some or all of the injuries' consequences and damages.

What is noteworthy from these few questions are the implications and recognition that the potential harm that can be perpetrated on an employee by those in the know with an employer who might alter the evidence to deprive the employee of a remedy.

The Workers Compensation Act is designed to protect workers injured on the job and not workers off the job.  To get these workers compensation protections, the workers give up rights to sue an employer or fellow worker for negligence in return for some compensation for their injuries regardless of negligence.  Most would agree that workers compensation benefits are totally inadequate to make a worker whole following an injury, but the legislature nearly a century ago struck a balance between employer and employee to afford these protections.  Making sure that balance is checked is important.

The Workers Compensation Act does NOT deprive a worker OFF the job who is injured by the employer from suing the employer just like any other person or customer of the establishment.  Nor does it deprive the worker from suing third parties (those who are not also employed by the employer) for injuries.  For example, the worker is driving a company car and is injured in a car wreck caused by another's negligence can sue this third party for damages not covered under workers compensation.  In this example, the employer's medicals and wages are handled through workers compensation, but those damages which are not paid by workers compensation (excess wages, some medicals, and pain, suffering, anguish and inconvenience) could be recoverable from this negligent third party motorist.

Again, this post does not claim the statement by Jacque Heck is true or not true or go any further on how it relates to the trial, but simply addresses a potential for abuse exists in workers compensation law, and recognition that this legal nuance is apparently not a stranger  in the house of the employer.

For what it is worth, this is not the only area for potential abuse in depriving a worker of compensation and bringing them within the forced umbrella of protection of the Workers Compensation Act.  Eg.,

• Kentucky Workers Compensation: "Bad Law and Bad Faith Lead to a Bad Situation for Kentucky's Workers"
• SCOKY Decision: "Regular and Recurrent" workers compensation case regarding subcontrator liabiity
• Tort Reform: Workers' comp left amputee tough choice
• The face of tort reform, past, present and future can be found in Workers Compensation.

Medical: West Virginia's experience with med-mal reform Four Years later

Four years ago, West Virginia made drastic changes to its medical-negligence rules.  This story comments and links to a newspaper article in which the Chamber of Commerce seems to be happy with itself:

W.V. med-mal reform, four years on Point of Law Blog

So far so good, say panelists at a West Virginia Chamber event -- the problem being that the state's high court has not yet been presented with an expected challenge to the law from trial lawyers.