In a decision released yesterday, the Seventh Circuit Court of Appeals affirmed a multi-million dollar judgment against QT, Inc., the seller of the Q-Ray Ionized Bracelet.
QT made millions selling the product to desperate consumers, claiming its "Q rays" were a miracle cure that relieved all sorts of chronic pain. Independent medical research found that it was about as effective as a placebo.
A federal judge heard the evidence and stuck the company with fines and ordered refunds, as well. The numbers run into the tens of millions.
News reports scattered around the internet today point out that the company filed bankruptcy, and yet it continues to sell the product using product testimonials.
The opinion--written by Judge Easterbrook--makes for amusing reading. He labels the company's claims about biofeedback, Q Waves and energy balancing as "blather." In affirming the trial court, the appeals court concluded that the judge hearing the case was in the best position to weigh the evidence.
I'm reminded of a film I saw quite by accident a few months ago. It was a Spanish film called Ladrones Robben Ladrones (Thieves Rob Thieves) in which the bogus marketing of a miracle cure is at the heart of a terrific heist film. It's one of those good guys win in the end films. Sort of like this case.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Friday, January 4, 2008
Friday, December 28, 2007
Oregon Supreme Court Finds Tort Claim Act Unconstitutional
In a remarkable decision today, the Oregon Supreme Court concluded that the Oregon Tort Claims Act is unconstitutional, as applied in a case involving profound injury. The case, Clarke v. Oregon Health Sciences Univ., involved a profoundly injured child who suffered brain damage as a result of negligent care at Oregon Health Sciences.
Despite the fact that the baby's lifetime medical needs would cost over $11 million, the Oregon Tort Claims Act limited the baby's recovery to $200,000. The Oregon Supreme Court concluded that the limits deprived the child of a remedy guaranteed by the Oregon constitution.
Here is the url to today's opinion
It's an interesting decision. The Oregon Supreme Court strives to decide cases unanimously. And while all of the participating justices agreed to the outcome, two joined in a concurring opinion that carefully suggested how the legislature might consider fixing the constitutional problems.
The case will likely mean different things to different interests. For severely injured consumers, it means that injuries caused by the government are not artificially capped by limits that are low and outdated.
But the opinion also leaves open many questions. For example, all the justices agreed that the $200,000 maximum was constitutionally inadequate in Jordaan Clarke's case. But what happens when the injuries are profound but don't total $11 million in economic damages? For the present, it looks like the Court will be addressing that question on a case-by-case basis. I suppose this isn't the end of the world, as legal systems, lawyers and judges exist specifically to frame and decide these evolving questions.
To be sure, both opinions reveal keen wisdom about the role of the judiciary as a co-equal branch of our system. The court narrowly decided the case and invited the legislature to fix the problem with specific observations that provide legislators with some guidance on how to go forward. I don't particularly agree with how the court got there or a number of the specifics in both the majority and concurring opinions. Even so, I have to say that the court handled a tough case with grace.
Where we go from here should prove interesting for those of us who represent consumers.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Despite the fact that the baby's lifetime medical needs would cost over $11 million, the Oregon Tort Claims Act limited the baby's recovery to $200,000. The Oregon Supreme Court concluded that the limits deprived the child of a remedy guaranteed by the Oregon constitution.
Here is the url to today's opinion
It's an interesting decision. The Oregon Supreme Court strives to decide cases unanimously. And while all of the participating justices agreed to the outcome, two joined in a concurring opinion that carefully suggested how the legislature might consider fixing the constitutional problems.
The case will likely mean different things to different interests. For severely injured consumers, it means that injuries caused by the government are not artificially capped by limits that are low and outdated.
But the opinion also leaves open many questions. For example, all the justices agreed that the $200,000 maximum was constitutionally inadequate in Jordaan Clarke's case. But what happens when the injuries are profound but don't total $11 million in economic damages? For the present, it looks like the Court will be addressing that question on a case-by-case basis. I suppose this isn't the end of the world, as legal systems, lawyers and judges exist specifically to frame and decide these evolving questions.
To be sure, both opinions reveal keen wisdom about the role of the judiciary as a co-equal branch of our system. The court narrowly decided the case and invited the legislature to fix the problem with specific observations that provide legislators with some guidance on how to go forward. I don't particularly agree with how the court got there or a number of the specifics in both the majority and concurring opinions. Even so, I have to say that the court handled a tough case with grace.
Where we go from here should prove interesting for those of us who represent consumers.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Friday, December 21, 2007
Too Late: Insured Teen Dies After CIGNA Insurance Delays Approval of Liver Transplant
There isn't much more horrible than watching your child die. Reported in today's news is the case of 17-year old Nataline Sarkisyan. She died after her health insurance, CIGNA, refused to approve a liver transplant. Her doctors said the transplant was necessary to treat her leukemia. CIGNA refused and then later relented after protesters showed up outside CIGNA's offices.
Here is the url: http://www.msnbc.msn.com/id/22357873/
We like to think that playing by the rules and providing for our families provides us protection. Here is a working family that provided health insurance for itself. Given the costs of coverage today, that is no small feat. And yet, hard work and sacrifice and resources weren't enough because greed got in the way.
CIGNA refused to pay for the transplant because "there was a lack of evidence" that it would be effective. But her doctors concluded it was necessary.
As a kid, I grew up reading Mad Magazine, and one of my favorite features was something called, "What They Say/What They Really Mean," or something like that. This one is ripe for the old Mad Mag treatment. What they say is that, "There was a lack of evidence that the treatment would be effective," and what CIGNA really meant was, "Hey we're the insurance company, and we know better than the doctors who have examined and treated Natalie. It's our money, and we don't want to spend it."
Giving it the Mad Mag treatment is probably inappropriate for the simple reason that a family lost their sister and daughter and all the beauty and life and energy that every kid brings into the world. Through the years, I have represented parents who have lost children, and all have told me the same thing.
There is nothing worse than burying your child.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Here is the url: http://www.msnbc.msn.com/id/22357873/
We like to think that playing by the rules and providing for our families provides us protection. Here is a working family that provided health insurance for itself. Given the costs of coverage today, that is no small feat. And yet, hard work and sacrifice and resources weren't enough because greed got in the way.
CIGNA refused to pay for the transplant because "there was a lack of evidence" that it would be effective. But her doctors concluded it was necessary.
As a kid, I grew up reading Mad Magazine, and one of my favorite features was something called, "What They Say/What They Really Mean," or something like that. This one is ripe for the old Mad Mag treatment. What they say is that, "There was a lack of evidence that the treatment would be effective," and what CIGNA really meant was, "Hey we're the insurance company, and we know better than the doctors who have examined and treated Natalie. It's our money, and we don't want to spend it."
Giving it the Mad Mag treatment is probably inappropriate for the simple reason that a family lost their sister and daughter and all the beauty and life and energy that every kid brings into the world. Through the years, I have represented parents who have lost children, and all have told me the same thing.
There is nothing worse than burying your child.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Wednesday, December 19, 2007
Allstate Ignores Court Order; Incurs $25,000 in Fines Per Day
I'm guessing Allstate policyholders' premiums are going to go up.
Here's a summary of an interesting news report from yesterday's Kansas City Star. An Allstate insured is suing Allstate in Missouri because the company failed to pay on his policy after he struck and injured another motorist. The insured, Mr. Aldridge, requested documents relating to a consultant's report in the case, and the trial court ordered Allstate to produce them.
Allstate appealed all the way to the Missouri Supreme Court, and the Supreme Court ruled that Allstate must produce the consultant's papers. Allstate is still refusing, so the trial court levied fines. Reportedly, the fines are $25,000 per day for the refusal.
Here is a url to the news report: http://www.kansascity.com/news/local/v-print/story/409641.html
Allstate seems to have concluded that it can ignore the rulings and orders of the courts. It doesn't like the result, so it will just refuse to comply. The fines don't seem to be a problem. After all, they can just pass them through to policyholders.
When an injured person gets a large verdict, the media machine for the tort reform industry throws out terms. You've heard them: lawsuit lottery, frivolous lawsuit, and judicial hellhole. So what do they call it when Allstate simply refuses to comply with an order of the court? I don't hear the American Tort Reform Association putting out any press releases on this issue. Nor do I hear the politicians who hate the jury system system condemning Allstate. All I hear is a variation on the golden rule. As in, "We've got the gold, so we make the rules."
I'll be watching carefully for that next series of Allstate's commercials to hear them explain how they take care of policyholders. Who knows? Maybe they'll explain this one in a new TV ad with that guy who tells us about Allstate's stand.
I can hardly wait.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Here's a summary of an interesting news report from yesterday's Kansas City Star. An Allstate insured is suing Allstate in Missouri because the company failed to pay on his policy after he struck and injured another motorist. The insured, Mr. Aldridge, requested documents relating to a consultant's report in the case, and the trial court ordered Allstate to produce them.
Allstate appealed all the way to the Missouri Supreme Court, and the Supreme Court ruled that Allstate must produce the consultant's papers. Allstate is still refusing, so the trial court levied fines. Reportedly, the fines are $25,000 per day for the refusal.
Here is a url to the news report: http://www.kansascity.com/news/local/v-print/story/409641.html
Allstate seems to have concluded that it can ignore the rulings and orders of the courts. It doesn't like the result, so it will just refuse to comply. The fines don't seem to be a problem. After all, they can just pass them through to policyholders.
When an injured person gets a large verdict, the media machine for the tort reform industry throws out terms. You've heard them: lawsuit lottery, frivolous lawsuit, and judicial hellhole. So what do they call it when Allstate simply refuses to comply with an order of the court? I don't hear the American Tort Reform Association putting out any press releases on this issue. Nor do I hear the politicians who hate the jury system system condemning Allstate. All I hear is a variation on the golden rule. As in, "We've got the gold, so we make the rules."
I'll be watching carefully for that next series of Allstate's commercials to hear them explain how they take care of policyholders. Who knows? Maybe they'll explain this one in a new TV ad with that guy who tells us about Allstate's stand.
I can hardly wait.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Tuesday, December 18, 2007
Doctors in Rehab Still Practicing Medicine
Interesting report on MSNBC today about doctors in rehab in California who are allowed to obtain confidential drug and alcohol treatment while continuing to provide patient care. Here's the url: http://www.msnbc.msn.com/id/22314486/
Oregon has a similar program of confidential drug and alcohol treatment for physicians. Here is the url for the Board of Medical Examiners summary of the program: http://oregon.gov/BME/healthprog.shtml. The statutes codifying the Oregon program are ORS 677.615-677.677.
The MSNBC article notes that many drug and alcohol treatment professionals and the American Medical Association support these types of programs. According to the AMA, allowing an impaired physician to continue treating patients encourages impaired doctors to seek treatment. Of course, the article also notes that California is ending its program because a review revealed that the confidential program failed to protect patients. And it also failed to encourage doctors to receive treatment.
The California experience provides hard data that undermines the AMA's position. My perspective is surely colored by representing patients, but even so, there is something horrifying about a patient not knowing about a doctor's impairment.
If you have any doubt about this in the abstract, consider a fairly simple hypothetical question. Would you want a surgeon who is addicted to drugs performing surgery on your child? If the answer is, "Of course not," then it's easy to see the problem with the confidential approach that allows impaired doctors to continue treating patients.
The AMA should be advocating for quality of care, and the California experience makes clear that the current system delivers lower quality care. An impaired doctor can be dangerous to patients. If the impairment is kept confidential, the very least that should happen is that the doctor should take a leave so that patients have confidence in their physician. Alternatively--and it's a radical alternative--remove the confidentiality so that patients can choose. I imagine the radical alternative would horrify the AMA and the Oregon Board of Medical Examiners. I could see that reaction. But if you're not going to give patients the information they need to protect themselves, then you surely should take the impaired physician out of circulation.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Oregon has a similar program of confidential drug and alcohol treatment for physicians. Here is the url for the Board of Medical Examiners summary of the program: http://oregon.gov/BME/healthprog.shtml. The statutes codifying the Oregon program are ORS 677.615-677.677.
The MSNBC article notes that many drug and alcohol treatment professionals and the American Medical Association support these types of programs. According to the AMA, allowing an impaired physician to continue treating patients encourages impaired doctors to seek treatment. Of course, the article also notes that California is ending its program because a review revealed that the confidential program failed to protect patients. And it also failed to encourage doctors to receive treatment.
The California experience provides hard data that undermines the AMA's position. My perspective is surely colored by representing patients, but even so, there is something horrifying about a patient not knowing about a doctor's impairment.
If you have any doubt about this in the abstract, consider a fairly simple hypothetical question. Would you want a surgeon who is addicted to drugs performing surgery on your child? If the answer is, "Of course not," then it's easy to see the problem with the confidential approach that allows impaired doctors to continue treating patients.
The AMA should be advocating for quality of care, and the California experience makes clear that the current system delivers lower quality care. An impaired doctor can be dangerous to patients. If the impairment is kept confidential, the very least that should happen is that the doctor should take a leave so that patients have confidence in their physician. Alternatively--and it's a radical alternative--remove the confidentiality so that patients can choose. I imagine the radical alternative would horrify the AMA and the Oregon Board of Medical Examiners. I could see that reaction. But if you're not going to give patients the information they need to protect themselves, then you surely should take the impaired physician out of circulation.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Monday, December 17, 2007
Washington Court Approves Class Action Settlement for Auto Glass Workers
In Seattle last week, Judge Bruce Hilyer approved a class action settlement for auto glass workers who claimed to suffer vibration injuries from use of the Chicago Pneumatic CP 838. The case is Boos v. Chicago Pneumatic Tool Co., State of Washington, King County Superior Court Case No. 02-2-16730-6SEA.
Disclosure: The author of this blog served as lead counsel for the class, and Paul & Sugerman has been involved in auto glass workers' product liability claims against Chicago Pneumatic since 1995.
In Washington, approximately 120 workers made claims and will receive compensation in the Boos settlement. In earlier cases in Oregon, approximately 75 workers made claims and received compensation for vibration injuries. It's been a long fight, and some good has come out of it.
Success in the case would have been impossible without a great team, and I close by acknowledging and thanking the rest of the team who made the case a success: Eric Boos and Jim Rasmussen, the two class representatives, and my colleagues in the trenches, Steve Sitcov, Candice Rutter, Rick Klingbeil and Bernie Jolles.
David F. Sugerman
Paul & Sugerman, PC
www.pspc.com
Disclosure: The author of this blog served as lead counsel for the class, and Paul & Sugerman has been involved in auto glass workers' product liability claims against Chicago Pneumatic since 1995.
In Washington, approximately 120 workers made claims and will receive compensation in the Boos settlement. In earlier cases in Oregon, approximately 75 workers made claims and received compensation for vibration injuries. It's been a long fight, and some good has come out of it.
Success in the case would have been impossible without a great team, and I close by acknowledging and thanking the rest of the team who made the case a success: Eric Boos and Jim Rasmussen, the two class representatives, and my colleagues in the trenches, Steve Sitcov, Candice Rutter, Rick Klingbeil and Bernie Jolles.
David F. Sugerman
Paul & Sugerman, PC
www.pspc.com
Saturday, December 15, 2007
Western Culinary Institute Students Raise Complaints
Willamette Week's Dave Mazza reports in this week's issue about a rash of student complaints at Portland's Western Culinary Institute. According to the article, some 800 students pay $39,000 for culinary training. According to the article, students claim that the trade school promises a rich and rewarding career in the restaurant business. The story details problems with program, including over crowded classes, limited facilities and over-promised rosy futures.
Those who know the food and restaurant trade will tell you that the average kitchen job rarely pays more than modest wages. Celebrity TV chefs are the exception. According to the article, many of these young men and women are incurring substantial debt and leave the school with limited options beyond low-paying work.
Here's the url to the story: http://wweek.com/editorial/3405/10113/
While it's hard to draw conclusions based on a single news story may, if the report is accurate, a number of these students may have various consumer claims. Thankfully, Oregon law provides a number of different avenues for those students who might choose to seek relief.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
Those who know the food and restaurant trade will tell you that the average kitchen job rarely pays more than modest wages. Celebrity TV chefs are the exception. According to the article, many of these young men and women are incurring substantial debt and leave the school with limited options beyond low-paying work.
Here's the url to the story: http://wweek.com/editorial/3405/10113/
While it's hard to draw conclusions based on a single news story may, if the report is accurate, a number of these students may have various consumer claims. Thankfully, Oregon law provides a number of different avenues for those students who might choose to seek relief.
David F. Sugerman
www.pspc.com
Paul & Sugerman, PC
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