First, a trial has begun in Portland Oregon against the Boy Scouts brought by a man who, when he was about 12, was sexually abused by a scout leader – a convicted pedophile who admits to doing this.  The New York Times reports that “Scout leaders have been found guilty of sexual abuse crimes in various cases across the country for more than two decades” and now, lawyers say, files show that this went on with the knowledge of national and regional scout leaders.  This was even after complaints of abuse arose, and “sometimes even after they had been convicted of sexual abuse.”  They also say claims of abuse began “as early as the 1920s.”  (The Boy Scouts say “the files demonstrate proactive efforts to stop it.”)

In Delaware, the legislature is considering a bill “that would allow victims of child pornographers to sue their victimizers in civil court and win mandatory minimum judgments of $150,000.”   The bill would also extend the statute of limitations from two to three years, or until “the end of a criminal prosecution or the victim turns 18 -- whichever comes last.” 

Meanwhile in Delaware, fallout continues in the case of Dr. Earl B. Bradley, the pediatrician who allegedly raped or sexually abused 103 children.  The dean of Widener University School of Law is “independently examining how the doctor continued to practice despite at least a decade of questionable behavior.”  In fact, a lawsuit brought on behalf of a 3-year-old girl has now been filed against the Medical Society of Delaware and three Delaware doctors saying, among other things, that they failed to act on warnings of Bradley’s “unprofessional conduct,” including a complaint filed by Bradley’s sister (which the medical society denies).

Speaking of statutes of limitations, this week a hearing was held in Connecticut that would “make Connecticut the fourth state in the nation to eliminate the civil statute of limitations in child sexual abuse cases.”  Some witnesses raised the Roman Catholic Church scandals. 

Speaking of which, The Daily Beast reported on St. Patrick’s Day that in the United States, “more than $1 billion has been paid to victims” with most receiving “$5,000 and $500,000, depending on the length and level of abuse.”  But in Ireland, where a report last year said “abuse in church-run homes in Ireland was ‘endemic,’” the Bishop of Ferns, Denis Brennan, has asked parishioners to help the Church pay for compensation to abuse victims, prompting denunciations from outspoken singer Sinead O’Connor (a victim of childhood violence herself,) who said, “To expect little old ladies and little old men to cough up money for sex abuse scandals is outrageous.”

In a country with a strong civil justice system grounded in notions of accountability, like here in the U.S., it’s hard to imagine such a thing.  We’re just sayin’

The humorous case that got us thinking about all this was the seven year-old patent case that Viva Viagra-maker Pfizer just withdrew.  The case was over Eli Lilly's erectile “when the moment is right” dysfunction drug Cialis.  (OK we’ve been watching a little too much Golf Channel over here.)  According to Bloomberg, “[t]he agreement to drop the suit came a month after the U.S. Patent and Trademark Office said one aspect of the Pfizer patent in the case covered a treatment similar to a Chinese herb known as Horny Goat Weed.” 

In an attempt to quickly wipe that image from our minds, we started thinking about court statistics.  (Works every time.)  What about these business cases?  Or take it to the next level, what about cases brought by businesses against average Americans, compared to, say, tort cases?

First, we looked at the latest report from the U.S. Justice Department’s Bureau of Justice Statistics, which studies bench and jury trials.  BJS found that only about 3% of all tort, contract, and real property cases were even resolved by trials.  Of that, businesses were suing other businesses in about 10% of cases.  (We don’t know the composition of the other 97%, though.)

But going over to the National Center for State Courts, it gets really interesting. The NCSC found that monetary disputes (contract and many small claims) account for 70% of the entire state civil caseload.  Moreover, between 1998 and 2007, contract cases went up 37% while tort cases dropped 24%.  What’s more, contract cases "rose sharply in 2007, whereas tort cases continued a prolong decrease."

And now here’s the tragedy that explains it all. The NCSC was able to take a look at a few states in detail, like Kansas, which keeps good track of court statistics.  In Kansas, an astounding 78.9% of their civil cases involved contract disputes.  By comparison, only 2.1 % involved torts.  But why so many contract disputes?  In yet another reflection of the economic despair facing many Americans today, 72.8% were debt collections; 7.2% were mortgage foreclosures.  As for the small number of tort cases, 60.8% of these were auto accidents. Only 7.8 % (of the 2.1%, remember) were medical malpractice cases.  Even fewer – 1.2 % – involved products. As for cases involving erectile dysfunction, well, we'll just leave it at that.

A is for Alpharma, a unit of King Pharmaceuticals, which according to the U.S. Justice Department, “has agreed to pay $42.5 million to resolve allegations that it gave kickbacks to doctors to prescribe the pain drug Kadian and misrepresented its safety and effectivenesss.” 

B is for Boston Scientific.  The FDA says that “questions remain about the accuracy of the company's study of [a new heart device], suggesting in an online review that “patients Boston Scientific studied were less healthy than typical patients with the condition.  As a result, the true benefits of the device may have been overstated.”

D is for Dentist, the one in Massachusetts that the state Attorney General says used “paper clips instead of stainless steel posts inside the teeth of root canal patients while billing Medicaid for the more expensive parts.”   The former dentist has been indicted for assault and battery, larceny, submitting false claims to Medicaid and illegally prescribing drugs.”

I is for Ista Pharmaceuticals, which the FDA says “made misleading claims about Xibrom eye solution in sales material, including overstating the drug's efficacy and omitting and minimizing important risk information."  (Since X is such a hard one, this is for X too!)

P is for Punjwani, Dr. Sohail, that is, who just received a “warning” from the FDA that said he failed ``to protect the rights, safety and welfare'' of children enrolled in clinical drug trials.  Turns out that he was “treating a 7-year-old foster child before the boy committed suicide last year.”  Also, “one girl slashed her wrists while hallucinating" and "another, a 13-year-old, 'experienced sedation and dizziness during the study.'"

V is for Veterans.  That's because “Federal inspectors found medical equipment not properly cleaned or inspected at some of the clinics for veterans in Puerto Rico.… The findings on conditions in the U.S. Caribbean territory come nearly a year after some 10,000 people treated at veterans hospitals across the United States were told they might have been exposed to infections during procedures where equipment was not properly cleaned.”

I think that’s enough learning for today!

Then there's Erin Brockovich. Her smearing wasn't really in the movie but it came later.

Read more.

Hope these ER immunity laws aren’t a new trend but we fear they might be.  The kinds of malpractice that can occur in an ER is truly horrendous, and many cases involve children.  (See a few examples, here.)  They are also more likely to involve the uninsured.

In its seminal study To Err is Human (which said that that up to 98,000 die in hospitals each year due to malpractice), the Institute of Medicine (IOM) found that ER’s are the hospital location with the highest proportion of negligent adverse events (52.6 percent).  It's well known that this is where people without health insurance often go for primary care.  In another study called Care Without Coverage: Too Little, Too Late, IOM said that uninsured persons with traumatic injuries are less likely than those with insurance to be admitted to the hospital, receive fewer services if they are and are more likely to die.

We also know that litigation improves patient safety, especially in hospitals.   ER immunity- another example of patient safety gone wrong. 

Clearly, the legal troubles for Toyota are mounting.  This week the Associated Press reviewed the current class action cases filed against the company and found at least 89 claiming lost value — at least 6 million people—which they say could cost $3 billion or more.  These cases do not include wrongful death and personal injury lawsuits.

Our friend Tom Baker at the University of Pennsylvania law school said that these class action lawsuits "are more scary for Toyota than the cases where people actually got injured. … You could have millions of individual car owners who could (each) be owed $1,000.  If I were Toyota, I'd be more worried about those cases."

Another indication of how widespread this problem is, the federal judge assigned to many of these class actions owns a Toyota himself, and may even be included in the class actions.  We love how he put it: "The court owns a 2000 Toyota Avalon SLX. In addition, the adult son of the court who has not lived in the court's home for many years owns a 2005 Prius."

Whether you're a judge, or the adult son of the court who has not lived in the court's home for many years, or just an average motorist who might either own a Toyota or be driving in front of one on the New Jersey Turnpike this weekend, it’s important to keep up with the latest Toyota news, and we recommend that you follow the work of these two amazing groups: Center for Auto Safety and Safety Research and Strategies.

First off, a note about the National Patient Safety Foundation, which sponsors this event. The rabidly anti-civil justice American Medical Association was NPSF's founding sponsor, along with CNA/HealthPro and 3M.   When the Institute of Medicine report came out in 1999, one of its major recommendations was a mandatory reporting system for serious errors.  President Clinton at the time actually tried to get this done.  The AMA, along with the American Hospital Association, killed it. 

The AMA is commemorating National Patient Safety Week by focusing on medication errors – but not by trying to deal with the epidemic of medication errors in U.S. hospitals, which the Institute of Medicine says causes at least 7,000 deaths each year.  Instead, they are recommending “everyone to use National Patient Safety Awareness Week as an appropriate time for an annual check-up and clean-out of the medicine cabinet.”  

Then we have a state like Utah. The Utah Department of Health just released a report showing that “Utah hospitals continue to mistakenly leave equipment such as sponges inside patients -- many of them women undergoing obstetrical or gynecological surgeries”  and that these errors “were among the 101 ‘sentinel events’ reported by Utah hospitals and surgical clinics.” Spokesperson for the Department says, “The best way to prevent these events, which can be devastating to patients and their families, is to have a robust, transparent reporting system to monitor and track them … If we can better track these events we can work together with the health care industry to identify what's causing them and take steps to prevent them in the future.”  

Tell that to the AMA. 

Meanwhile, as if none of this was happening, some lawmakers in Utah are responding by pushing legislation to severely cap compensation for medical malpractice victims, basically weakening the accountable of hospitals and other health care providers for these kinds of errors, and practically ensuring that errors will increase. 

As I said, strange doesn’t half describe it.

It's also one of the least regulated, and most influential, profitable and unaccountable industries in the nation, answering to no federal agency and regulated by a nation of mostly weak state agencies. It is exempt from federal anti-trust laws. Most state insurance departments have little ability to control insurance rates. With few exceptions, these departments have neither the funding nor political will to exercise proper control over this industry, save its main regulatory job - to prevent a company's insolvency. Policyholders have very little protection otherwise. The result is an industry that can make extraordinary claims and demands on lawmakers that go nearly unchallenged.

Keep reading.

The Times probably wrote the editorial anticipating jokes and other cynical descriptions of the case that might suddenly appear on late night talk shows, just like they did years ago about that other McDonald’s "burned customer" case.  Not that we have anything against jokes, but when they’re used to convince the American public to give up their own fundamental rights (i.e., “tort reform”), it’s a bit of a problem.

As the Center for Justice & Democracy put it, “Anecdotal descriptions of a few atypical lawsuits intended to shock or amuse the public have been the cornerstone of the business community’s anti-jury advertising and public relations campaign since the 1980s. Focusing on a few rare, anecdotal cases, instead of the majority of cases that pass through the courts each year, feeds into a false and dangerous perception that the system is overflowing with frivolous lawsuits.”  Even though these case descriptions are highly misleading and constantly debunked, truth often doesn’t matter. 

There is a great book that talks about how this all works, called "Distorting the Law; Politics, Media, and the Litigation Crisis" by William Haltom and Michael McCann. Others have written about it too.  

Not that we should be too surprised given the gazillions of dollars sunk into hundreds of conservative, industry-sponsored organizations, “think-tanks,” public relations, polling and lobbying firms dedicated to wiping out corporate liability for wrongdong (like the American Tort Reform Association, American Enterprise Institute, American Legislative Exchange Council, Americans for Job Security, Center for Individual Rights, Federalist Society, National Association of Manufacturers, Manhattan Institute, Competitiveness Enterprise Institute, Washington Legal Foundation, and of course, the U.S. Chamber of Commerce, to name just a few national groups, let alone what goes on at the state level).

When you think about it, these “tort reformers” have accomplished something incredible.  They’ve used anecdotes to turn the American public's mind against a fundamental element of our democracy – the civil justice system - while breeding fear, anger and contempt for those who use the courts – people just like themselves.  That’s some PR feat. 

Lanny Davis, former Clintonista turned corporate lobbyist (or even worse) gave a Wall Street Journal interviewer his views about medical malpractice, arguing that judges and juries shouldn’t be allowed to handle them.  His argument was based on so-called “facts” like this:

The problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages. That’s when you penalize a doctor for gross negligence or recklessness. … After all, negligence is not an intentional act. It’s an unintentional act. If it is intentional, then it moves into the realm of the criminal, and that’s really not what people are worried about here.

Worried about?  Who’s worried about punitive damages in medical malpractice cases?  They barely exist.  There were six in the entire state court system in the last year the Bureau of Justice Statistics looked at this. SIX!  And no doubt, they were in cases of horrible misconduct or abuse, and hopefully will still be available when and if families file their civil suits against the Delaware pediatrician who (allegedly) raped and sexually abused 103 children. Hopefully, Delaware does not go down the road of capping punitive damages overall, a direction in which South Caroline may be headed right now, even in the face of “runaway Toyotas.”

Here is what else the Bureau of Justice Statistics has to say about the frequency of punitive damages:  Punitive damages were sought in only 13% of the approximately 14,000 general civil trials with plaintiff winners in 2005; Punitive damages were awarded to only 5% of plaintiff winners, and the median overall punitive damage was $64,000! 

Indeed, a couple of stories recently showed just how reluctant juries are to award punitive damages even against huge corporations, let alone doctors.  First, a story we told you about last week concerning the corporate hog farm, the stench of which was impossible to live around.  No punitives.  The second came in a Louisiana verdict Friday against Exxon Mobil.  The case was brought by 16 former employees because "offshore drilling pipes they cleaned over decades contained radioactive contamination.”   While awarding “nearly $1.2 million as compensation for the increased risk they face of developing cancer … jurors declined to award the workers punitive damages.”  This is even after an earlier jury actually did award punitives in a similar case, an award that was later greatly reduced even thought the court found Exxon’s behavior “reprehensible.”

So where exactly is the crisis?  To paraphrase a certain Senate Majority Leader, people are entitled to their opinion about punitive damages, but they’re not entitled to their own facts.  Go sit in the corner, Lanny!