Ah yes, it's campaign season again. And we have another politician calling for, "federal caps on non-economic and punitive damages related to malpractice" because, "lottery-sized awards and frivolous lawsuits may enrich the trial lawyers but they put a heavy burden on doctors, hospitals and, of course through defensive medicine, they put a burden on the entire health care system."
This time it's Mitt Romney. Cite to the article for further detail: http://www.salon.com/wires/ap/2007/11/20/D8T1MFNO2_romney_health_care/index.html
I don't know where to start. First, with the irony. I thought Gov. Romney was a conservative, but here he wants regulation and a one-size-fits-all federal standard for all patients injured by physician neglect.
The bigger problem is that Gov. Romney either knows nothing about profound injury or--worse--he knows it well, but wants to treat patients' rights as a political issue. There are bigger policy problems. To begin with, punitive damages in medical cases are so rare as to be almost non-existent. They are awarded in the rare case when a surgeon--who is drunk--commits a surgical error or when a doctor who is a pervert sexually abuses a patient. Most doctors and nurses are honorable and good people, and that is why the punitive damage problem is rare.
And then there's the lottery argument. For a buck or two, you can play the lottery in most states. You're likely to lose but if you win, you'll be a multi-millionaire. To "play the lottery" in a medical malpractice case, you need a profound injury--often it's as serious as death, or a life in a wheelchair. No matter what happens you will be that way for life because of a mistake made by an inattentive doctor. That's a tragedy, not a lottery. Anyone who confuses the two does not understand the devastation caused by profound injuries.
And then there's frivolous lawsuits. This is a phrase that really means, "We don't trust juries." For according to Gov Romney and others, juries can't tell when a lawsuit has merit, and they will literally shower the fraudulent party with a torrent of cash. I've been trying cases for over 20 years. Maybe I'm just not a very good lawyer, but it's pretty clear that juries have plenty of sense when it comes to ferreting out good claims and bad ones. Or maybe Gov. Romney and those who rant about the "crisis" have a different agenda.
In the end, it's easy to trust the jury. Our ancestors set up the jury trial system to protect us against politicians and titans. Let's not mess with it, as they knew what they were doing.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Tuesday, November 20, 2007
Wal-Mart Raids Profoundly Injured Employee's Settlement Funds
Some things are beyond comprehension. Comes today's news, in the Wall Street Journal no less, that Wal-Mart sued a catastrophically-injured former employee for reimbursement of medical expenses. Here is a link to article: http://online.wsj.com/article/SB119551952474798582.html?mod=todays_us_nonsub_page_one
Reported on the front page, November 20, 2007, is the horrifying story of a woman who worked for Wal-Mart and received her health insurance through her employer. A big rig, with insufficient insurance, collided with her mini-van, and Deborah Shank was left brain damaged and confined to a wheel chair.
With the help of a lawyer, Mrs. Shank and her family settled her claim. The settlement wasn't enough to take of her future medical needs, but it would have made a big difference in her future. And then Wal-Mart sued to be reimbursed for the money it had paid for her prior care.
Wal-Mart claimed an entitlement to every dollar that it paid even though it didn't hire or pay for the lawyer that got the settlement for the Shank family. Wal-Mart claimed an entitlement to repayment even though the trucking company's insufficient insurance did not cover all of Mrs. Shank's harms and losses.
There is something very wrong with a system that allows an employer with Wal-Mart's resources to step in and claim every penny while the injured person is left penniless and without care. The story relates that the Shanks divorced so that she could receive greater public assistance as a single woman.
So the law that allows Wal-Mart full reimbursement means that taxpayers foot the bill for Mrs. Shank's care. Mrs. Shank did everything right. She worked, had insurance and didn't cause the devastating crash. The trucking company skates, Wal-Mart gets more money, Mrs. Shanks suffers without care, and we get the bill.
Go figure.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Reported on the front page, November 20, 2007, is the horrifying story of a woman who worked for Wal-Mart and received her health insurance through her employer. A big rig, with insufficient insurance, collided with her mini-van, and Deborah Shank was left brain damaged and confined to a wheel chair.
With the help of a lawyer, Mrs. Shank and her family settled her claim. The settlement wasn't enough to take of her future medical needs, but it would have made a big difference in her future. And then Wal-Mart sued to be reimbursed for the money it had paid for her prior care.
Wal-Mart claimed an entitlement to every dollar that it paid even though it didn't hire or pay for the lawyer that got the settlement for the Shank family. Wal-Mart claimed an entitlement to repayment even though the trucking company's insufficient insurance did not cover all of Mrs. Shank's harms and losses.
There is something very wrong with a system that allows an employer with Wal-Mart's resources to step in and claim every penny while the injured person is left penniless and without care. The story relates that the Shanks divorced so that she could receive greater public assistance as a single woman.
So the law that allows Wal-Mart full reimbursement means that taxpayers foot the bill for Mrs. Shank's care. Mrs. Shank did everything right. She worked, had insurance and didn't cause the devastating crash. The trucking company skates, Wal-Mart gets more money, Mrs. Shanks suffers without care, and we get the bill.
Go figure.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Monday, November 12, 2007
Changes in Oregon Auto Insurance Law Help Consumers
One of the good things to come out of the Oregon Legislature last session includes a package of changes in auto insurance law that favor consumers. The biggest change, HB 3086 (for law geeks, here’s the full cite: 2007 Or Laws Ch 782; amending ORS 742.450, 742.502, and 742.504), ended a horrible practice by the insurance industry. In the past, when one member of the same household caused injury to another household member, most policies provided that the injured person could recover no more than the minimum limits of insurance, even if the family brought higher limits insurance. So if Dad, while driving home, took his eye off the road and crashed, even if his child was horribly injured and Dad bought top limits insurance, the child would only recover $25,000, the minimum limit amount.
That was an unfair provision because a family that pays for insurance should get the full benefit of the coverage that they purchase. Under the new law, the family gets the full benefit of the policy amount that Mom and Dad bought.
The change was part of a package of changes that allow consumers the value of what they purchase. If you buy higher limits insurance—and you almost always should—that insurance should protect family members. The new law applies to insurance policies issued or renewed after January 1, 2008.
So when you renew your policy, the other thing to do is to check on your limits of insurance. Consumers often assume that minimum limits are cheapest. When you go to renew, check your limits in two categories: 1) liability; and 2)UM/UIM (underinsured/uninsured). The minimum limits are $25,000, and while that is generally enough insurance in the event of a minor-injury crash, it’s inadequate in a situation in which the injuries are permanent or someone needs major medical care.
Here is the thing that most consumers aren’t told. The next levels of insurance are usually much cheaper than the first level. So, for example, it often costs only a little bit more to insure yourself and your family at $100,000. The additional insurance is important in two situations. First, if you have gotten a little ahead in life, you don’t want to put your money at risk. Higher limits protect your assets. Second—and this is actually more important—when you get in a crash with an uninsured or underinsured driver, your higher-limits underinsured/uninsured coverage fills the gap. Yes, this means taking extra responsibility to protect yourself against uninsured/underinsured drivers. But the thing is that adequate coverage for you and your family is worth the extra expense.
David F. Sugerman
Paul & Sugerman, PC
www.pspc.com
That was an unfair provision because a family that pays for insurance should get the full benefit of the coverage that they purchase. Under the new law, the family gets the full benefit of the policy amount that Mom and Dad bought.
The change was part of a package of changes that allow consumers the value of what they purchase. If you buy higher limits insurance—and you almost always should—that insurance should protect family members. The new law applies to insurance policies issued or renewed after January 1, 2008.
So when you renew your policy, the other thing to do is to check on your limits of insurance. Consumers often assume that minimum limits are cheapest. When you go to renew, check your limits in two categories: 1) liability; and 2)UM/UIM (underinsured/uninsured). The minimum limits are $25,000, and while that is generally enough insurance in the event of a minor-injury crash, it’s inadequate in a situation in which the injuries are permanent or someone needs major medical care.
Here is the thing that most consumers aren’t told. The next levels of insurance are usually much cheaper than the first level. So, for example, it often costs only a little bit more to insure yourself and your family at $100,000. The additional insurance is important in two situations. First, if you have gotten a little ahead in life, you don’t want to put your money at risk. Higher limits protect your assets. Second—and this is actually more important—when you get in a crash with an uninsured or underinsured driver, your higher-limits underinsured/uninsured coverage fills the gap. Yes, this means taking extra responsibility to protect yourself against uninsured/underinsured drivers. But the thing is that adequate coverage for you and your family is worth the extra expense.
David F. Sugerman
Paul & Sugerman, PC
www.pspc.com
Thursday, November 8, 2007
Providence Judge Dismisses Patients' Data Loss Claims
Today, Judge Marilyn Litzenberger dismissed Providence patients' privacy claims for harms and losses resulting from the theft of computerized patient records. The case affects 350,000 patients. The motion to dismiss had been under consideration for a year. For the curious, the case is Gibson v. Providence Health System-Oregon, State of Oregon, Multnomah County Circuit Court Case No. 0601-01059.
Judge Litzenberger ruled that Oregon law did not provide a claim for Oregon patients affected by the loss. Paul & Sugerman represents the Providence patients.
At an early conference Judge Litzenberger had indicated that she was inclined to grant the motion to dismiss. She issued the decision on November 7, 2007.
When Providence first announced the security breach, it told its patients that they should take steps to protect themselves. Many patients went out and purchased identity theft protection service. Several weeks after the patients filed the lawsuit, Providence announced that it would make identity theft protection available. It eventually extended the theft protection for a second year.
It is fair to say that those of us who represent patients disagree with the judge's ruling. After all, when you go to the doctor you expect that your private health history and confidential identity information will be protected. This didn't happen.
The legal team is studying the opinion and considering its options. But for the present, it is a sad day for patients' rights.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Judge Litzenberger ruled that Oregon law did not provide a claim for Oregon patients affected by the loss. Paul & Sugerman represents the Providence patients.
At an early conference Judge Litzenberger had indicated that she was inclined to grant the motion to dismiss. She issued the decision on November 7, 2007.
When Providence first announced the security breach, it told its patients that they should take steps to protect themselves. Many patients went out and purchased identity theft protection service. Several weeks after the patients filed the lawsuit, Providence announced that it would make identity theft protection available. It eventually extended the theft protection for a second year.
It is fair to say that those of us who represent patients disagree with the judge's ruling. After all, when you go to the doctor you expect that your private health history and confidential identity information will be protected. This didn't happen.
The legal team is studying the opinion and considering its options. But for the present, it is a sad day for patients' rights.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Not Really News: Wall Street Journal Slams Trial Lawyers
The editorial in the Wall Street Journal starts like this: “We're old enough to remember when Naderite groups like Public Citizen were embarrassed by their ties to trial lawyers.” (Nov. 7, 2007, A-22). And then it goes downhill from there.
The Journal criticizes Public Citizen for its ties to trial lawyers and attempts to suggest that the stalwarts at National Association of Consumer Advocates are somehow fat-cats who are singly responsible for the demise of the American economy. It’s a screed that misses several points. Most notably this: Corporate greed, accounting abuses and lax regulation brought us Enron and the rash of inflated stock value scams.
The same big three--corporate greed, accounting abuses and lax regulation--are back for another round. This time it’s the burgeoning mortgage lending crisis. Against this backdrop, the Journal tosses out desperate charges that trial lawyers are responsible for economic meltdown. That’s very sad, as Enron didn’t hire any consumer lawyers to cook the books. Neither did the accounting firms. And the FTC and other regulatory agencies don’t seem to consult with trial lawyers, either. The growing mortgage crisis appears to be another sad case. Some lenders may have engaged in scams that involved wide-spread inflation of real estate values, so that consumers got bigger and more profitable mortgages.
The reality is that trial lawyers provide the main method of smoothing the kinks out of an economy. Open courts and the jury trial system provide the means through which ordinary consumers can call wrongdoers to account. It is the place where bad behavior faces scrutiny and the means through which greed gets checked. In that respect, the process actually protects the economy. Without the means to call wrongdoers to account, consumers would be left with very few options.
My schedule didn’t allow me to attend this year’s conference of the National Association of Consumer Advocates. So sad because it’s always nice to show up for consumers.
David F. Sugerman
Paul & Sugerman, PC
www.pspc.com
The Journal criticizes Public Citizen for its ties to trial lawyers and attempts to suggest that the stalwarts at National Association of Consumer Advocates are somehow fat-cats who are singly responsible for the demise of the American economy. It’s a screed that misses several points. Most notably this: Corporate greed, accounting abuses and lax regulation brought us Enron and the rash of inflated stock value scams.
The same big three--corporate greed, accounting abuses and lax regulation--are back for another round. This time it’s the burgeoning mortgage lending crisis. Against this backdrop, the Journal tosses out desperate charges that trial lawyers are responsible for economic meltdown. That’s very sad, as Enron didn’t hire any consumer lawyers to cook the books. Neither did the accounting firms. And the FTC and other regulatory agencies don’t seem to consult with trial lawyers, either. The growing mortgage crisis appears to be another sad case. Some lenders may have engaged in scams that involved wide-spread inflation of real estate values, so that consumers got bigger and more profitable mortgages.
The reality is that trial lawyers provide the main method of smoothing the kinks out of an economy. Open courts and the jury trial system provide the means through which ordinary consumers can call wrongdoers to account. It is the place where bad behavior faces scrutiny and the means through which greed gets checked. In that respect, the process actually protects the economy. Without the means to call wrongdoers to account, consumers would be left with very few options.
My schedule didn’t allow me to attend this year’s conference of the National Association of Consumer Advocates. So sad because it’s always nice to show up for consumers.
David F. Sugerman
Paul & Sugerman, PC
www.pspc.com
Wednesday, November 7, 2007
Oregon's New Identity Theft Law
The Oregon Consumer Identity Theft Protection Act, Oregon 2007 Laws, Chapter 759, §§1-18, now provides greater protection to Oregon consumers. Before passage of the 2007 Act, Oregon businesses were not required to notify consumers when someone without authorization accessed the personal information. The legislation passed in the wake of Providence Health System’s loss of computerized patient records on more than 300,000 patients. Full disclosure: Paul & Sugerman represent consumers affected by the Providence data loss.
Under the Act, Oregon businesses must take steps to protect consumers’ personal information. While there is leeway for small businesses, the Act provides that businesses employing more than 50 people must take significant steps to protect consumer information. Oregon businesses have to be especially careful about not publishing or otherwise disclosing social security numbers, except when they are otherwise required by state or federal law.
The new law provides that when a business suffers a security breach affecting consumers’ personal information, the business must take certain steps to notify various entities. While the details may vary, businesses generally must notify law enforcement, consumers and credit reporting agencies.
Best of all, Section 4 allows consumers to place a security freeze on their consumer reports by sending a written request to consumer reporting agencies. You may be charged a fee for this service, and proper identification will be required, as well.
It’s not the best statute. Violations are enforced by State, and whether they will be enforced at all depends on government officials. But it’s better than what we have, and it at least provides some important protections for consumers, as long as the State makes it real through necessary enforcement.
David F. Sugerman
Paul & Sugerman, PC
www.pspc.com
Under the Act, Oregon businesses must take steps to protect consumers’ personal information. While there is leeway for small businesses, the Act provides that businesses employing more than 50 people must take significant steps to protect consumer information. Oregon businesses have to be especially careful about not publishing or otherwise disclosing social security numbers, except when they are otherwise required by state or federal law.
The new law provides that when a business suffers a security breach affecting consumers’ personal information, the business must take certain steps to notify various entities. While the details may vary, businesses generally must notify law enforcement, consumers and credit reporting agencies.
Best of all, Section 4 allows consumers to place a security freeze on their consumer reports by sending a written request to consumer reporting agencies. You may be charged a fee for this service, and proper identification will be required, as well.
It’s not the best statute. Violations are enforced by State, and whether they will be enforced at all depends on government officials. But it’s better than what we have, and it at least provides some important protections for consumers, as long as the State makes it real through necessary enforcement.
David F. Sugerman
Paul & Sugerman, PC
www.pspc.com
Tuesday, November 6, 2007
Consumer Products Safety Commission Fails Consumers
It’s like the we’re living a Groundhog Day existence. Today’s news—November 6, 2007—brings us yet another Mattel recall of over a hundred thousand dangerous toys. I don’t think it’s a coincidence that the head of the Consumer Product Safety Commission (CPSC), Nancy Nord, has been accused of a range of abuses while serving as the head of the agency that protects children from dangerous toys.
Ms. Nord actually opposed Congressional efforts to add funding to CPSC. She now says that she wasn’t really opposed to additional funding. Instead, she opposed the bill that would strengthen protections for agency whistleblowers and that would make it easier to publicize dangerous products. Here is the link to a media report: http://www.msnbc.msn.com/id/21653084/
Her explanation of why she opposes funding is awful. A whistleblower is someone inside who complains to outside authorities, when an agency fails to properly do its work. It seems that Ms. Nord is opposed to protecting those employees who would speak out when people in her position fail to protect our children. And the opposition to publicizing unsafe products is even worse. If a product is unsafe, those of us with children would want to know. After all, we’re supposed to take responsibility for protecting our children. But if secrecy rules keep information from consumers, how can we do that.
Ms. Nord was an unfortunate political appointment to the head of the CPSC. And for this, it appears that we will relive Groundhog Day because CPSC has failed to protect our children. She would do all of us a favor by either taking seriously her mission or—better—resigning to let someone take over the job who puts consumers first.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Ms. Nord actually opposed Congressional efforts to add funding to CPSC. She now says that she wasn’t really opposed to additional funding. Instead, she opposed the bill that would strengthen protections for agency whistleblowers and that would make it easier to publicize dangerous products. Here is the link to a media report: http://www.msnbc.msn.com/id/21653084/
Her explanation of why she opposes funding is awful. A whistleblower is someone inside who complains to outside authorities, when an agency fails to properly do its work. It seems that Ms. Nord is opposed to protecting those employees who would speak out when people in her position fail to protect our children. And the opposition to publicizing unsafe products is even worse. If a product is unsafe, those of us with children would want to know. After all, we’re supposed to take responsibility for protecting our children. But if secrecy rules keep information from consumers, how can we do that.
Ms. Nord was an unfortunate political appointment to the head of the CPSC. And for this, it appears that we will relive Groundhog Day because CPSC has failed to protect our children. She would do all of us a favor by either taking seriously her mission or—better—resigning to let someone take over the job who puts consumers first.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
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