Since that time, many in the conservative movement have said that actually, the right to access the courts and civil jury trials is fundamental to our democracy, enshrined in the Bill of Rights and in need of protection right now.  If they need any more reminder of that, I hope they think about the fact that the tool they are using to sue the IRS – a class action – is on the brink of extinction in many areas, thanks to Congress and the U.S. Supreme Court. 

So far, there have been two cases filed against the IRS.  The latest is from “True the Vote, a Texas-based Tea Party-related group, [which] claims it was unfairly targeted by the Internal Revenue Service and wants the government to admit its mistake and pay for damages totaling more than $85,000." The other is by “the Nor Cal Tea Party Patriots.”  Writes Fox,

The NorCal lawsuit, filed in the U.S. District Court of Cincinnati, seeks group status for “all conservative and libertarian groups targeted for additional scrutiny” between March 2010 and May 2013. It’s also seeking unspecified monetary damages for the alleged violation of its constitutional rights and the costs associated with trying to comply with IRS demands.…

The lawsuit seeks unspecified monetary damages for the IRS’ alleged violation of the Privacy Act of 1974 and the First and Fifth Amendments of the U.S. Constitution. It is not known exactly how many groups could qualify to be members of the class-action lawsuit. There were 296 applications reviewed in the inspector general’s report released last week.  

After a year, the FBI has failed to produce any documents, so Garry’s and Raimondo do not know the full extent of the surveillance and whether it is ongoing. The editors are asking the FBI to turn over relevant documents, and to stop collecting records of their constitutionally protected speech.

“Freedom of the press is a cornerstone of our democracy, whether it’s the Associated Press or Antiwar.com,” said Julia Mass, staff attorney at the ACLU of Northern California. “Government surveillance of news organizations interferes with journalists’ ability to do their jobs.” 

And speaking of the Associated Press and the surveillance of journalists, SNL star Dana Milbank’s column in the Washington Post is a must read.

But today is a good day.  Today, my very existence was publicly validated in ways that I could never have imagined.  Let me explain.

If you look on the op ed page of the New York Times, you will find a column called, “Learning From Litigation” (in the very same spot they gave Angelina Jolie last week, no less.)  Like I’ve been trying to tell everybody all these years, I am something you can learn from!

My study … shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.…

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Moreover, litigation discovery can unearth useful details about safety and quality concerns. Analyses of claim trends can reveal problematic procedures and departments, and closed litigation files can serve as rich teaching tools. …

Moreover, because lawsuits help to identify incidents and details of medical error, limitations on lawsuits may actually impede patient safety efforts.

Medical-malpractice lawsuits do not have the harmful effects on patient safety that they are imagined to have — and, in fact, they can do some good.

That's not all. We learned late yesterday that Charles Schwab backtracked on its “requirement that clients waive their right to bring class-action lawsuits.”  (See our earlier coverage.)

Schwab's right to stop clients from bringing coordinated court actions was challenged last year by the Financial Industry Regulatory Authority, the securities industry’s principal regulator. A FINRA hearing panel in February ruled that Schwab's policy does violate FINRA rules but was consistent with federal law and recent Supreme Court interpretations of the Federal Arbitration Act.…

Consumer advocates, along with class-action lawyers, have blasted Schwab's efforts to limit the lawsuits, saying many ordinary investors cannot afford to pay on their own for the cost of arbitration hearings.…

Public Citizen, a consumer watchdog group that has been circulating a petition asking Schwab to rescind the class-action ban, congratulated the company for its "responsible" decision. It said many of its 19,000 supporters who signed the petition also are Schwab customers who spoke directly to the firm.

See, for me, each of these forced arbitration clauses with class action bans is like the death penalty, so you can see why I’m so happy. 

And speaking of arbitration, we found out that on Wednesday, a federal judge in the Northern District of California (Michelle Lou v. MA Laboratories et al.) ruled that an arbitration clause in an employment contract was “procedurally oppressive and unconscionable,” that “the procedural unfairness was severe and the substantive one-sidedness [because the employer was allowed to go to court while the employee wasn’t] was heavy-handed” and therefore the forced arbitration clause was unenforceable!

It’s been a hard knock life for 35 years.  But not today.

Confidential Memo

From: The U.S. Chamber of Commerce

To:  Our Unceasingly Persecuted Members

Re: Those Unhinged State Attorneys General

Date: May 14, 2013

-------------------------------

I don’t know about you, but when I think about “Attorneys General” these days, the word “deranged” comes to mind.  I’m not even talking about Eric Holder.  Stealing confidential info?   Big deal, that’s our specialty!   (He should have asked for our help, am I right?)

I am talking about the AG variety coming out of radical states like South Dakota, where the state AG is wasting taxpayer money “spending a lot of time” (his words) trying to prevent people from being scammed by so-called “bad people” from Canada who are calling and telling people they have an error on their tax returns.  Don’t people know that if a Canadian calls they shouldn’t pick up the phone?

Or Missouri, where the tree-hugger AG has filed a lawsuit against the owners of the Bridgeton Sanitary Landfill for violating environmenal laws just because they leaked hazardous chemicals in the air and black liquid leachate into groundwater, upsetting area residents who “for years have been putting up with the stench of a burning landfill.”  Duh, why don't they just move?

And now, 43 state AG’s are asking the FDA to “place a ‘black box warning’ on labels of the opioid category of prescription-pain relievers to alert pregnant women that use of such drugs may harm infants.”  They say that “the use of opioids ‘has increased at alarming levels,’ triggering more cases of a condition known as Neonatal Abstinence Syndrome.”  Let me just say that the federal government doesn’t need any “help” from the states.  Don’t they know that the FDA is perfectly able to handle any and every little safety hiccup that comes along? 

All I can say is, thank you (in advance) U.S. Supreme Court.  As luck would have it, next week, the Justices are meeting to decide whether to take a couple cases that could – hopefully - once and for all block a bunch of AG lawsuits.  (Well, at least make it far more difficult for any AG to bring one.)  Writes Reuters today:

A federal statute passed in 2005, known as the Class Action Fairness Act (CAFA), aimed to give federal courts jurisdiction over lawsuits involving large numbers of plaintiffs. But it is not clear whether the statute was meant to apply to suits filed by state attorneys general seeking to recover damages for their citizens.

Oh, it will be clear soon enough. Because if history is any guide, we know that SCOTUS won’t hesitate to decide what Congress “really meant to say” even though they forgot to actually write it in the statute.  (Like here.)  Especially if that means flooding the federal court system with even more lawsuits that it cannot possibly handle.  SCOTUS will do anything to protect us, that much we know. 

[The states say that] CAFA makes no reference to lawsuits filed by state attorneys general and that imposing federal jurisdiction on their lawsuits would infringe on their sovereignty. They also argue that as states, they should not be considered "citizens" for diversity purposes under CAFA.

So far, only the 5th Circuit has agreed with corporate defendants. In the price-fixing case brought by the Mississippi attorney general against LCD makers, the court adopted a so-called "claim-by-claim" approach that analyzes who would benefit from a lawsuit, not simply who brought it, when deciding jurisdiction.

In his petition to the Supreme Court, Mississippi Attorney General Jim Hood argues that the 5th Circuit's decision conflicts with Supreme Court precedent.

“This Court has consistently held that a state’s overall interest in the case it has brought in its name is the determinative inquiry, not who may ultimately benefit from the relief sought,” wrote lawyers for Hood's office.

Silly AG.  Precedent?   Don’t they know who’s in charge now?  

It was only a matter of time before a wrongful death lawsuit was filed against the NHL alleging the same kinds of brain injuries (plus opiate addiction), that have led about 4,200 American football players to sue the NFL. It is now being reported that,

The family of Derek Boogaard has filed a wrongful-death lawsuit against the National Hockey League. It contends that the N.H.L. is responsible for the physical trauma and brain damage that Boogaard sustained during six seasons as one of the league’s top enforcers, and for the addiction to prescription painkillers that marked his final two years.

Boogaard was under contract to the Rangers when he was found dead of an accidental overdose of prescription painkillers and alcohol on May 13, 2011. He was 28. He was posthumously found to have chronic traumatic encephalopathy, or C.T.E., a brain disease caused by repeated blows to the head.

“To distill this to one sentence,” said William Gibbs, a lawyer for the Boogaards, “you take a young man, you subject him to trauma, you give him pills for that trauma, he becomes addicted to those pills, you promise to treat him for that addiction, and you fail.”

The N.H.L., through a spokesman, declined to comment Sunday.

Soccer players may have it even worse. It was reported late last year that “even [soccer players] who have never experienced a concussion still have changes in the white matter of their brains, likely from routine and unprotected headers.” In other words, “even blows to the head that aren’t considered concussions may lead to traumatic brain injury.”

While concussions have long been a part of professional sports such as boxing and football, researchers are still struggling to define concussions clinically, and research into brain changes resulting from repetitive blows to the head is a relatively new area of research. “[Brain damage from repetitive blows] would have tremendous public health implications,” says Dr. Jeffrey Bazarian, an associate professor of emergency medicine at URMC. “If players are damaging their brains, it is a large public health issue because everyone, even at a young age, hits their head like this. But right now we really don’t have enough information.”

Bazarian was not involved with the study, but has also used DTI to assess mild brain injury in high school football and hockey players.

Unfortunately, many high schools seem unwilling to take this problem as seriously as they should. Just last week, there was, “[a]n alarming study about teenage athletes."  Specifically:

Doctors say even light concussions, if untreated, can cause severe harm to the brain like memory loss, major depression and even Alzheimer’s later in life. But now, a new survey released this week shows young players won’t report a concussion, even if they feel the headache and dizziness that could come with a big hit on the field.…Nearly half of the students surveyed said they would not tell their coach if they had concussion symptoms.

And when it comes to womens’ sports, like Lacrosse, there’s another problem. Coaches, it seems, think helmets would make the sport, I dunno, less "beautiful". So, when “two state legislators in lacrosse-crazy Maryland introduced a bill this year to require helmets,” the coaches actually protested.

"The beauty of the girls game is it's a lot more finesse, not bodies slamming and slashing and stick violations," said Peter Bogle, who coaches a co-op team in St. Charles. “My take is once you start with a helmet, girls are going to think, ‘Now I can go harder.’” …

Nonetheless, U.S. Lacrosse is planning to draft technical standards for female protective headgear. That should be done by early 2014, [Ann Carpenetti, managing director of game administration for U.S. Lacrosse] said, allowing sporting goods companies to develop models that, with luck, might be available by 2016.

She added, however, that she expects any new headgear to remain optional for the foreseeable future. “I don't think there's a silver bullet,” she said. “Nobody thinks there's a silver bullet to concussions.”

I was worried about Matt up there.  I was worried about all the incredible iron workers bolting in that spire.  I was worried about those of us below.  (We’re just a few blocks away.)

But then I remembered that when it comes to the safety of scaffolding, ladders, elevators, etc., New York has among THE safest laws in the nation thanks to New York’s Labor Law, §§240-241.  This law places an absolute duty upon owners and contractors to make scaffolding, ladders and other equipment, as well as flooring and elevators, safe for construction workers. I felt better just thinking about this law, as should have Matt Lauer, those iron workers, and the other 8 million people who live here - not to mention the 40 million who visit.

Notwithstanding the sound legal and policy reasons for making the owner and contractor exclusively responsible for safety at construction sites, business lobbyists have, for years, tried to eliminate that absolute duty and significantly weaken the owners’ and contractors’ obligations to ensure a safe work site.  This would be a terrible idea!  No offense to our Texas friends, but if that state is any guide, aspiring to the lowest common denominator when it comes to public health and safety is not in anyone's best interest. 

The New York Times has a disturbing front page story about Texas’ reaction to the horrific April 17 West Fertilizer plant explosion that killed at least 14 and injured about 200 (and was insured for only $1 million dollars thanks to incredibly poor insurance regulation in that state.  ThePopTort is better insured than that.)

In Texas, lawmakers like Governor Rick Perry and even the town’s mayor see no need for any improved safety laws.  None.  Not even fire codes, which are often banned in Texas!  Writes the Times, 

Texas … is the only state that does not require companies to contribute to workers’ compensation coverage. It boasts the largest city in the country, Houston, with no zoning laws. It does not have a state fire code, and it prohibits smaller counties from having such codes. Some Texas counties even cite the lack of local fire codes as a reason for companies to move there.

But Texas has also had the nation’s highest number of workplace fatalities — more than 400 annually — for much of the past decade. Fires and explosions at Texas’ more than 1,300 chemical and industrial plants have cost as much in property damage as those in all the other states combined for the five years ending in May 2012. …

“The Wild West approach to protecting public health and safety is what you get when you give companies too much economic freedom and not enough responsibility and accountability,” said Thomas O. McGarity, a professor at the University of Texas at Austin School of Law and an expert on regulation.…

[F]ederal officials and fire safety experts contend that fire codes and other requirements would probably have made a difference. A fire code would have required frequent inspections by fire marshals who might have prohibited the plant’s owner from storing the fertilizer just hundreds of feet from a school, a hospital, a railroad and other public buildings, they say. A fire code also would probably have mandated sprinklers and forbidden the storage of ammonium nitrate near combustible materials. (Investigators say the fertilizer was stored in a largely wooden building near piles of seed, one possible factor in the fire.)

“It’s tough to overstate the importance fire codes would have made,” said Scott Harris, a former emergency management coordinator in Texas for the Environmental Protection Agency, who is now with UL Workplace Health and Safety, a safety science company. “Texas just hasn’t wrapped its brain around this fact yet.” …

Not that some aren’t trying to help. 

Since the accident, some state lawmakers began calling for increased workplace safety inspections to be paid for by businesses. Fire officials are pressing for stricter zoning rules to keep residences farther away from dangerous industrial sites. But those efforts face strong resistance. …

Resistance from, say, the Texas Public Policy Foundation, “a conservative study group, [who] said that the wrong response to the explosion would be for the state to hire more 'battalions of government regulators who are deployed into industry and presume to know more about running the factory than the people who own the factory and work there every day.'"

Yes, I bet some of the dead knew exactly how to run that plant.  Unfortunately, they’re now dead.

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The need for this law was made clear in the Center for Justice & Democracy’s new study, also released yesterday, called “Cutting Classes: The Slow Demise of Class Actions in America.”  Says CJ&D,

The study finds that recent actions by Congress and the U.S. Supreme Court, especially decisions upholding the right of corporations to ban class actions via forced arbitration clauses, have greatly jeopardized the legal rights of everyday people.  In some areas, those rights are now headed for virtual extinction as injured and violated people are blocked entirely from the courthouse.

Why, you may ask, does Congress need to get involved?  The answer is undeniable. Unless Congress changes federal law, nothing can change. That is thanks to a series of recent U.S. Supreme Court decisions that are wrecking historically important tools of justice via a perverted interpretation of the Federal Arbitration Act of 1924.  Almost a century ago, this law was enacted to facilitate commercial use of arbitration.  But two years ago, the U.S. Supreme Court decided that this obscure law should allow corporations to strip injured and violated people of the basic right to go to court, and force them into private, corporate-designed and paid for systems to resolve their disputes. 

The case was AT&T Mobility LLC v. Concepcion. The Court held that even when an existing state law protects individuals from abusive forced arbitration clauses, the FAA trumps these state laws.  What’s more, the Court said that companies have the unilateral right to ban class actions by inserting class action waivers into these arbitration clauses.  Where a company may have acquired a large financial windfall by violating the rights of large numbers of people, class actions are often the only way for people to gain access to the courts.  Without this tool, many cases cannot be brought at all, allowing corporate wrongdoing to completely escape any legal accountability.  (See more in CJ&D's report.)

And, as those boatloads of organizations noted, vindication of many federal rights may all be at risk.   These include provisions of:

The Civil Rights Acts of 1964  and 1991, the  Age  Discrimination in Employment Act, the Americans with Disabilities Act, the Family and  Medical Leave Act, the Fair Labor Standards Act, the Equal Pay Act, the Uniformed  Services Employment  and Reemployment Rights Act (USERRA), the National Labor  Relations  Act, the Sherman Antitrust Act, the Securities Act of 1933, the Securities Exchange Act of 1934, the Sarbanes - Oxley Act, the Dodd - Frank Wall Street Reform and  Consumer Protection Act, the Servicemembers Civil Relief Act, the National Defense  Authorization Act for Fiscal Year 2013 (amending the Military Lending Act), the  Lilly Ledbetter Fair Pay Act of 2009, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Credit Repair Organizations Act, the Electronic Fund Transfer Act, the False Claims Act, the Fair Credit Reporting Act, the Right to Financial Privacy Act, the Real Estate Settlement Procedures Act, the Truth in Lending Act, and the civil provisions of the Racketeer Influenced and Corrupt Organizations Act.

YIKES!  Find out more about the issue here.  And let’s let Congress know: Support S.878 and H.R.1844 - Arbitration Fairness Act of 2013!

The first time this happened was the mid-1970s.  On June 9, 1975, Newsweek ran a cover story, "Malpractice - Doctors in Revolt.”  The "revolt" was against sudden malpractice premium hikes.  Sound familiar?  Insurers quickly blamed what they believed was occurring in the country – a “litigation explosion.”  They demanded huge rate hikes from state regulators and convinced lawmakers that the only way to bring rates under control was to limit the legal rights of injured victims , i.e., insurer payouts.  In fact, insurers learned during this period that state regulators would give away the store in rate increases.  They also learned that they could easily take political advantage of the situation by asking state lawmakers to limit victims’ rights.  And it was during this period California enacted the Medical Injury Compensation Reform Act, or MICRA, which placed a $250,000 cap on non-economic damages for malpractice victims.

Yet it turns out that there never was a “litigation explosion.”  After insurers abandoned the medical and product manufacturer lines, the federal government decided to review the situation and not simply accept the insurer’s assertions that litigation was “exploding.”  An inter agency working group was formed under then Federal Insurance Administrator J. Robert Hunter, to look into the crisis and to report back specifically as to whether a claimed “explosion” of medical malpractice claims was causing the huge and sudden jump in premiums that doctors were experiencing.

Hunter’s research immediately found that data was not available to answer this question.  Insurers did not have such data.  Therefore, working with the National Association of Insurance Commissioners (NAIC), they undertook a closed-claim study.  The closed claim study revealed that there was no “explosion” of claims and that there was no justification for the insurer actions.  (See more here.)

But it was too late for California. Incredibly, MICRA has remained on the books for 38 years.  MICRA's $250,000 cap is worth about $65,000 today.  This cap has never once been adjusted for inflation.  Because medical malpractice cases are so expensive to bring and the cap is so low, it’s often impossible for an injured patient to even bring a case in California.  It’s been a bonanza for the insurance industry.  In fact, California’s medical malpractice insurance industry has become so bloated due to this cap, that “as little as 2 or 3 percent of premiums are used to pay claims” and “the state’s biggest medical malpractice insurer, Napa-based The Doctors Company, spent only 10 percent of the $179 million collected in premiums on claims in 2009.”

However, the political lessons learned by the insurance industry were clear: by blaming lawyers and litigation for a crisis that the industry itself had manufactured, the industry could obtain major changes in tort laws – basically, gravy to their bottom line.  Their clients – businesses and doctors – were more than happy to go along.  It is a political strategy that worked in the 1970s, and carried them through the next three decades.

To wit, in 1986, in the midst of this nation’s second liability insurance crisis, Missouri lawmakers were told by insurers the same thing - that the only way to reduce skyrocketing insurance rates was to enact a similar cap on non-economic damages.  And they proceeded to enact a $350,000 cap.  But when the third insurance crisis hit in the early 2000’s, guess what happened?  Claims were down in Missouri, alright.  “New medical malpractice claims dropped 14 percent in 2003 to what the [Missouri Department of Insurance] said was a record low, and total payouts to medical malpractice plaintiffs fell to $93.5 million in 2003, a drop of about 21 percent from the previous year.”   And “[t]he National Practitioner Data Bank, a federally mandated database of malpractice claims against physicians, found that the number of paid claims in Missouri fell by about 30 percent since 1991.  The insurance department’s database found that paid claims against physicians fell 42.3 percent during the same time period.” 

But doctors’ malpractice insurance premiums rose 121 percent! 

Fast forward to 2013. 

Today, Missouri’s cap is no longer on the books because the Missouri Supreme Court struck down the law as unconstitutional 26 years after it passed. Over the weekend, the St. Louis Post-Dispatch wrote a blistering editorial, strongly opposing the effort by some Missouri lawmakers to reinstate the unconstitutional cap, and referencing the recent case of Regina Turner, whose neurosurgeon operated on the wrong side of her brain leaving her severely disabled.  

And just last week, a major new effort got underway in California to, if not repeal MICRA, at least properly adjust the 38-year-old $250,000 cap for inflation. Here’s some of what the campaign “38 Is Too Late” folks say: 

MICRA has a disproportionate impact on people who have little or no income, including children, the elderly, stay-at-home parents and working class Californians.

• Victims of medical negligence can collect the estimated cost of actual economic damages, such as loss of income resulting from their injuries. On the surface, that may seem fair. But the law has a disproportionate impact on people who have little or no income, including children, the elderly, stay-at-home parents and working class Californians. The reason is that these citizens have little or no economic losses resulting from lost income.
• Despite having no impact on health care or insurance costs, non-economic damages caps have a tremendously negative impact on the permanently injured, especially, for example children who may live for 70 years with brain damage or other catastrophically debilitating injuries. California’s 1975 cap on non-economic damages is worth $61,525 in 2009 dollars. A patient would need to recover $1,018,201 in 2009 for the equivalent medical purchasing power of $250,000 in 1975.

It’s been over three decades since California went down a very cruel road.  It's time to do something.  Go here to help.

For Law Day, we would like to honor those who actually respect our legal system and want to free it from the clutches of corporate wrongdoers.  And in fact, we found some yesterday. In fact, we found 37 members of the U.S. House and Senate, led by Senator Al Franken, who yesterday, wrote a powerful letter to new Securities and Exchange Commission Chair Mary Jo White saying:

"We are deeply concerned that the Commission's failure to respond to the dangers posed by widespread forced arbitration will weaken existing investor protections.… We urge the Commission to act quickly to exercise its authority...to prevent this practice and protect investor rights."

The lawmakers are urging “U.S. securities regulators to prohibit Wall Street brokers from forcing customers to sign away their legal right to sue” via forced arbitration clauses with class action bans. (See more about the problems with forced arbitration and class action bans here.)

Notes Reuters, “Brokerages typically require customers to sign pre-dispute arbitration agreements when opening their accounts. Under such agreements, disputes between a brokerage and a customer go to arbitration; customers are prohibited from suing in court.”  Say the lawmakers: 

[T]he SEC should use the authority given to the agency under the Dodd-Frank financial law to reform arbitration clauses.

“To our disappointment, in the almost three years since the Dodd-Frank Act's enactment, the commission has largely disregarded this important mandate.… The time is ripe for the commission to act under [Dodd-Frank] to protect the investing public and prevent further abuse of forced arbitration contracts.”

The legislators also asked the SEC to monitor how many brokers are including mandatory arbitration agreements and class action waivers in their client contracts.

Reuters also notes,

The issue came into the spotlight recently after Charles Schwab Corp expanded the mandatory arbitration clauses in its customer contracts to include class action waivers.

The Financial Industry Regulatory Authority tried to fight the Schwab move by filing a disciplinary action, saying the class action waiver violated its rules.

But a hearing panel upheld Schwab's measure in February.

FINRA is appealing the ruling to the National Adjudicatory Council, a FINRA appellate body that reviews disciplinary decisions.

In the letter to White, the lawmakers said they were alarmed by the Schwab case and said it should be a catalyst for the SEC to act.…

Earlier this month, one SEC commissioner, Luis Aguilar, called for the SEC to take steps to scale back or limit the use of mandatory arbitration agreements.

Aguilar, who in his speech said “allowing investors to take their legal claims to court would 'enhance investor protection and add more teeth to our federal securities laws,'” isn’t the only regulatory official concerned about this arbitration practice. About 17 members of the North American Securities Administrators Association earlier “conducted meetings with more than 40 lawmakers, delivering the same message: That investors should be allowed to go to court to settle a grievance against their broker.”

Meanwhile, Public Citizen has begun a petition drive aimed specifically at Charles Schwab, asking people to “Stand up to Chuck” and "to remove from its terms for investors the forced arbitration clause and the ban on joining together in class actions. Schwab should honor its customers’ rights and end its shameful fight against the Financial Industry Regulatory Authority."

If you do nothing else to honor Law Day today, sign Public Citizen's petition! And while you are at it, don't forget to thank Senator Franken, whose record opposing forced arbitration has been truly inspiring!

Take what’s happening in Wisconsin. There, the medical lobbies are pushing legislation to change state law to lessen what doctors must tell their patients. The standard now is “what a reasonable patient would want to know” but some lawmakers want to change the standard to “what a reasonable physician would tell a patient.”

“The last thing you want to do is roll back the way we get information and how much information we get,” said Martha “Meg” Gaines, director of the Center for Patient Partnerships and an associate dean at the University of Wisconsin Law School.

The proposal would move away from what patients want and need to know, she said, to what doctors think patients need to know.…

Informed consent should be what the patient wants to know - not what a physician thinks the patient should be told, she said.

In a hospital setting, patients are always at an enormous disadvantage when it comes to getting information about their own care let alone protecting themselves from getting hurt. There’s an effort now to burden patients with the responsibility of keeping doctors and nurses from infecting them.  Patients are supposed to keep asking health care providers if they’ve washed their hands. That’s because “healthcare workers comply only about half the time…and one in 20 patients will acquire an infection while in the hospital.”  So, it should be their job to ask this question, even though it is well-recognized that “speaking up for yourself in that setting is not an easy thing to do"?

“No one wants to be confrontational with the person you hope will save your life,” said Dr. Michael Bell, acting director of the division of healthcare quality promotion at the U.S. Centers for Disease Control and Prevention in Atlanta.

Plus, as one expert noted, “In some ways it says to patients, ‘This is your responsibility for us to do things safely for you, including hand hygiene. Why should it be the job of the patients or family members to make sure everybody cleans their hands? That’s the job of the system.” Ya think?

And not to mention that fact that sometimes, doctors (especially surgeons) can be, well, bullies. USA Today had a story last week about this problem:

Every workplace, like every schoolyard, has its bullies. But when the workplace is a doctor's office, hospital room or surgical suite — when doctors throw charts at nurses or nurses throw insults at trainees — it isn't just a workplace problem. It's a patient-safety issue, these experts say.

"The impact in health care is significant because you are dealing with patients' lives," says Peter Angood, CEO of the American College of Physician Executives in Tampa. Patients who experience or witness boorish behavior have every right to speak up ... because the quality of their medical care may depend upon it.

But who’s gonna do that? For example, should it have been patients' job to question the medical judgment of Dr. Faisal Albania, the St. Louis area neurosurgeon who apparently performed so many risky surgeries on spines, necks and brains, causing “permanent nerve damage, chronic pain and lost income” (and death) that he’s now “a defendant in about 50 lawsuits?  Meanwhile, Dr. Albania was allowed to keep practicing “even after the state’s highest court upheld key findings by the Missouri medical board against him.”

“I think he’s hurt a lot of people,” said Alvin Wolff Jr., a lawyer from Clayton who filed a suit last year on behalf of Gary Cotter of Pinckneyville, Ill., that accused Albania of performing an unnecessary surgery on his spine in 2010 that left him in permanent pain and hunched over. “Why do the hospitals let a guy like this on staff? Why do they let a guy like this stay on staff?”

Good question. Where was the hospital here? Where was the state medical board? (Indeed Missouri’s board is sadly typical – check out what’s going on in California.) They clearly weren’t asking the right questions or taking steps to save patients lives.  Reminds me of the hospitals featured in last night’s 60 Minutes, which had evidence they’d hired a serial killer nurse, told no one about it, and then gave him a "neutral" reference.

Back to terrorism.  Looks like corporate profiteering may play a role here too, at least as victims try to recover. The Wall Street Journal reports today that if the Boston Marathon bombings are officially declared acts of terrorism, the insurance industry would not liable for many business claims and in any event, the industry's liability is capped. They made sure of that 11 years ago.  Specifically,

Companies could lose insurance payouts for property, lost income and other damage if the bombings are officially declared an act of terrorism by key U.S. officials, under an 11-year-old law that hasn't yet been tested, according to industry executives and lawyers, as well as city and business leaders in Boston.

The reason: After the Sept. 11, 2001, terrorist attacks, policies sold to business customers typically haven't covered losses stemming from "terrorism" unless the customer pays extra for the coverage. … If there is no terror finding, damages would be covered in general under regular property-and-casualty policies, said Robert Hart wig, president of the trade group Insurance Information Institute.

Large numbers of businesses in the area around the Boston bombings are believed to lack added terrorism protection, though figures aren't yet available, city and state officials said Wednesday. Nationally, about 60% of businesses pay extra for terrorism coverage, with a higher percentage in New York and some other big cities such as Boston, according to industry estimates. But many small businesses forgo high-price terrorism coverage, and Boston's Copley Square is filled with small bars, restaurants and shops.

Rattlesnake Bar & Grill on Boylston Street, which was closed for part of last week, doesn't have terror coverage. Co-owner John Gardner estimates lost business in the tens of thousands of dollars and holds out hope his insurer will cover some losses. He called the possibility that a terror declaration could keep him from getting compensated "the frustration of dealing with insurance companies."

The article makes reference to a law enacted in 2002 after insurance exes marched into the White House demanding the federal treasury provide a “multi-billion-dollar insurance ‘backstop,’ essentially capping the liability of the property/casualty insurance industry, an industry worth hundreds of billions of dollars, in the event of future terrorist attacks.”  This was something the heavily-capitalized property-casualty insurance industry did not need.  But no one ever said the insurance industry was shy about threatening to pull the rug out from under the U.S. economy to get what it wants, creating an atmosphere of “crisis” to promote its legislative agenda while at the same time escaping any meaningful public scrutiny or regulatory control.

Sorry about that, Boston.  (For more, see this study from the Center for Justice & Democracy, "Shakedown: How The Insurance Industry Exploits A Nation In Times Of Crisis." )