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How Would Tort Reform Affect the Quality of Emergency Healthcare?

Staff Writer — Thu, 14 Jun 2007 07:00:00 GMT

In 1975, the California State Legislature passed the California Medical Injury Compensation Reform Act (MICRA) which placed a cap on damages for medical malpractice claims. According to this Act, an injured plaintiff cannot recover non-economic losses in excess of $250,000. This tort reform statute has been in effect in California for thirty-two years. Because this California law has been in effect for so long, perhaps we can look to this state to determine whether tort reform has been effective in improving the quality and price of medical care. In general, I believe private market conditions rather than government interference and regulation leads to higher quality and efficiency. This means that I do not believe that artificial caps on damages are effective in improving the quality and cost of medical care.

Today, I came across a shocking news story about the quality of emergency room care in at least one hospital in California. A patient who was bleeding from her mouth and crying out in pain while she was forced to wait more than forty-five minutes in the lobby of the emergency room at Martin Luther King Jr.-Harbor Hospital died because she did not receive timely emergency care. According to news accounts, family members tried to call 911 to receive timely medical care and transport the patient to another facility. Unfortunately, dispatchers refused to call paramedics after learning about her location. According to news accounts of the breakdown in patient care:

In the recordings of two 911 calls that day, first obtained by the Los Angeles Times under a California Public Records Act request, callers pleaded for help for Rodriguez but were referred to hospital staff instead.
"I'm in the emergency room. My wife is dying and the nurses don't want to help her out," Rodriguez's boyfriend, Jose Prado, is heard saying in Spanish through an interpreter on the tapes.
"What's wrong with her?" a female dispatcher asked.
"She's vomiting blood," Prado said.
"OK, and why aren't they helping her?" the dispatcher asked
'They're just watching her'
"They're watching her there and they're not doing anything. They're just watching her," Prado said.
The dispatcher told Prado to contact a doctor and then said paramedics wouldn't pick her up because she was already in a hospital. She later told him to contact county police officers at a security desk.

The patient died after suffering from a perforated bowel which according to the coroner, could have been surgically repaired if it had been caught in time. Clearly, the emergency medical care provided to this patient fell well below the standard of care required for emergency medical providers. In fact, according to press reports, the hospital had a history of patient safety problems. The federal government previously even warned this hospital about safety problems placing emergency room patients at immediate risk of harm. The hospital risked losing federal funding had it not improved patient safety.

What do caps on damages in medical malpractice litigation have to do with this California hospital? Perhaps nothing. However, I believe that possible litigation damage awards usually play a role in how people manage risks. Because risk management departments evaluate safety based upon exposure to damage awards, damage caps can play a role in the priorities placed on patient safety programs. Perhaps if this hospital placed more emphasis on patient safety, it would have had a more effective patient triage program in place rather than forcing a patient with a perforated bowel to wait in an emergency room lobby until she died.

I must admit that other than what has been reported in news stories, I know nothing about this hospital. However, I firmly believe that risk management departments place an increased emphasis on patient safety when facing an unlimited exposure to litigation risk . As a result, litigation can be an effective tool to promote safety. This hospital never faced a civil judgment beyond exposure to civil damages caps. Because such risks never existed in California, perhaps patients suffer from poor quality of care. Do you believe the hospital has adequate incentive to provide safe patient care? Do you believe that damage caps play a role in the safety decisions corporations and medical providers make? Would damage caps in California work in Arizona? Let me know your thoughts.

Originally posted at InjuryBoard by Staff Writer

Legislature Passes Bill Limiting Teen Driving

Staff Writer — Mon, 14 May 2007 16:37:25 GMT

Last week, the Arizona Legislature passed the Teenage Driver Safety Act, legislation which places driving limitations on new young drivers to help minimize risk of automobile accidents. The bill limits teens as follows:

The act provides for driving restrictions from midnight to 5 a.m. and passenger limitations for the first six months a new teen driver holds a Class G driver's license.

According to AAA Arizona, limiting when and with whom teens can drive affects the safety of the driving public.

a teen driver's risk of an accident goes up 39 percent simply by having another teen in the car.

The bill places a curfew on when teens can drive and limits the number of other teens who can accompany a teenage driver. Governor Napolitano has until today to decide whether to sign the legislation.

Do you believe this legislation will make a difference? Will criminalizing teenage behavior reduce accident rates or does this legislation present yet another example of big government making decisions for us and our families? Will teenage drivers care about following these driving restrictions? I'd like to hear your opinions about whether Governor Napolitano should sign this bill.

Originally posted at InjuryBoard by Staff Writer

Has Your Health Insurance Company Treated You Fairly?

Staff Writer — Mon, 07 May 2007 17:00:09 GMT

Today in the Los Angeles Times, I read about the health insurance company Blue Shield of California which has been sued by a policyholder alleging bad faith for refusing to pay medical bills totalling $450,000 arising out of a serious car accident. According the the article, the insureds applied for health insurance, paid premiums and received an individual policy through Blue Shield of California in December, 2000. After receiving the policy and believing they had health insurance coverage, unfortunately the husband suffered serious injuries in a car accident in March, 2001. Blue Shield paid more than $100,000 in medical expense claims relating to this car accident and then decided to re-examine the family's application for health insurance. After re-examining the application, Blue Shield contended that the family mis-stated the husband's weight and other medical conditions and claimed that it would never have issued the health insurance policy had it known of the husband's true weight. As a result of alleged mis-statements, Blue Shield of California denied remaining claims and rescinded the family's health insurance policy. Blue Shield rescinded the family's health insurance policy leaving more than $346,000 in outstanding medical bills and an unpaid debt owing to Blue Shield to reimburse the approximately $104,000 in claims already paid. The family sued Blue Shield alleging that it rescinded the policy for reasons unrelated to the answers on the policy application, instead rescinding when the insureds became unprofitable after the husband's serious auto accident.

In Arizona, an insurer has an obligation to deal with you fairly and in good faith. If you believe you have been victimized by the conduct of an insurance company, you can submit a complaint to the Arizona Department of Insurance who will investigate to determine if it believes any laws have been violated. You may also consider meeting with a private lawyer to assist in determining what private remedies may be available if an insurance company treats you unfairly. Have you had similar experiences with your health insurance carrier? Have you had positive dealings with your insurance carrier? I'd like to hear about your experiences.

If the facts of this case are as indicated in the LA Times article, do you believe Blue Shield acted fairly and in good faith toward its insureds by taking away insurance only after expensive claims had been submitted? Do you believe that Blue Shield of California truly believed that it would not have issued the health insurance policy if the husband's true weight were recorded on the policy application or do you believe the company attempted to rescind the policy simply because the family's claims expenses were so high? What limitations or restrictions, if any, should be placed on a health insurance company such as Blue Shield when it evaluates whether to rescind a health insurance policy? Did the company do anything inappropriate in the method it processed claims for benefits related to this automobile accident? What other information would affect your answers to these questions? Let me know your thoughts.

Originally posted at InjuryBoard by Staff Writer

State Farm Insurance CEO Pay Rises Eighty-Two Percent

Staff Writer — Tue, 20 Mar 2007 10:00:06 GMT

Congratulations to State Farm Insurance Company! Its profits rose almost sixty-four percent (64%) to $5.32 billion dollars last year from $3.24 billion dollars in 2005. In my opinion, during this time, I do not think that State Farm acted like very much of a good neighbor to victims of Hurricane Katrina or to other policy-holders who timely paid premiums thinking they would be protected in times of calamity. Unfortunately, it appears that when needed most, many insurance policy-holders were denied policy benefits last year. In the midst of its record-setting year, according to a recent story on CNN, State Farm apparently adopted a policy to minimize settlement offers for low-impact motor vehicle collisions forcing accident victims to take substantially low settlement offers or spent significant costs in litigation. Moreover, Katrina victims were forced to sue State Farm for refusing to pay property damage claims. By minimizing payouts to its policy-holders, these steps have maximized State Farm's profitability to record levels.

In the midst of these record-setting profits, State Farm's CEO's salary increased at an even faster pace. The CEO's overall salary increased by eighty-two percent (82%) from $6.4 million dollars in 2005 to $11.66 million dollars in 2006.

State Farm's public relations teams continue to champion tort reform initiatives even during such record setting years of profitability. I believe that State Farm and other companies have every right to make a substantial profit and ordinarily I would applaud these efforts. I do not question State Farm's right to earn $5.32 billion dollars nor do I believe that government should intervene to regulate the insurance industry any further. However, I am curious how State Farm or any other insurance company can earn such large profits on the one hand, and still claim losses based on the lack of tort reform initiatives throughout our country on the other. What do you think?

Originally posted at InjuryBoard by Staff Writer

America On-Line Version of Tort Reform Incomplete and Inaccurate

Staff Writer — Tue, 06 Mar 2007 07:04:37 GMT

Today I discovered an interesting and entertaining page on the America On Line web site. Discussing so-called frivolous lawsuits, America On-Line lists as news several lawsuits without real attribution or legitimate discussion about corporate accountability for wrongdoing. Setting aside the issue of whether these lawsuits are in fact real or a political effort to encourage tort reform initiatives across the country, I had hoped that America On-Line would present a more balanced set of facts and discussion about the lawsuits which in fact encourage corporate accountability for harm. What about the litigation that encourages corporations and other defendants to prioritize consumer safety? Of the frivolous lawsuits which have been filed, how many have been dismissed immediately? What percentage of lawsuits present to the jury real harm, real problems and a need for real accountability?

I would guess that a vast majority of litigation in our state involves real and not frivolous issues. Because the great majority of litigation involves non-frivolous litigation, why not present a balanced discussion of the issue? If AOL presented a balanced set of litigation-related stories, it would talk about why seat belts or airbags have been placed as a safety device in cars. It would comment on why tire manufacturers have had to focus resources on revamping product safety initiatives to prevent tire tread separation. It would comment on homeowners' insurance carriers forcing jury trials by refusing to pay for damage to homes destroyed by Hurricane Katrina. It would focus on other industries where litigation has been used as a tool to demand corporate accountability and promote product safety.

I am proud to practice law and believe that our profession helps promote safety of products and services. Unfortunately, I believe that AOL's web site ignores these fundamental successes of our system of justice. When a lawsuit is frivolous, dismiss it and sanction the person filing it. Our Rules of Civil Procedure provide for such action. However, do not punish the majority of victims of wrongdoing by changing our tort system to elminate rights of a victim to seek a remedy for harm. I only hope that we as consumers do not ignore the benefits of demanding accountability for wrongdoing when the facts justify doing so. What do you think? Does AOL ignore the benefits of litigation purely to entertain? Click here to comment about AOL's analysis about frivolous lawsuits. I'd like to hear your thoughts on this site as well.

Originally posted at InjuryBoard by Staff Writer

Public Records Containing Social Security Numbers Readily Available in Arizona

Staff Writer — Thu, 01 Mar 2007 09:48:25 GMT

Yesterday News Channel Five reported that some county records containing social security numbers and other confidential information are readily available for inspection by anybody with internet access which unfortunately presents criminals with an invitation to commit identity theft. How would you feel if your social security number has been published on the internet because it has been included somewhere in a public record? Even worse, in the Channel Five news story, when a citizen found that his social security number was readily available from the County Recorder's Office and later tried to remove this information, the Recorder refused. Because the data involves public records, it has been placed in cyberspace without password protection or encryption. Data thieves do not need to hack into this database to steal it. Some state agencies disclose public records by mail only after redacting confidential and personal information. The federal privacy act and other privacy safeguards require removal of personal and confidential information from public records. Although the county has taken steps to remove confidential information for all new records, apparently it will take up to six months to remove social security numbers and other confidential information from remaining records.

Apparently without a direct request by the affected party, the County will not remove the records which have not yet been redacted from the internet during this interim six month time period. The County suggests that a six month delay is acceptable. However, because thieves can copy each and every single social security number on the web in six months, such a delay seems unacceptable. Instead, I believe that the county should take down its public database only for records which have not yet been redacted and add these records back to the database when redactions have been completed. In the meantime, over the next six months, rather than obtaining records via immediate internet access, people making public records requests would simply wait a day or two while employees redact confidential information and provide responses the old fashion way, by mail. Such protections seem reasonable considering that the alternative exposes hundreds of thousands of citizens to the unreasonable risk of identity theft. Perhaps if the County refuses to take such a step, legislation shifting the cost of possible identity theft breaches onto government agencies who do not take reasonable steps to protect data could give the county incentive to take these consumer protection steps. As I have mentioned in prior postings, according to the Federal Trade Commission, unfortunately Arizona has the highest number of per capita victims of identity theft in all states. Because we live in a high identity theft crime state, agencies and corporations alike must take reasonable steps to protect confidential information. Without providing a reasonable explanation, I believe it inappropriate to leave confidential data exposed on the internet and available for public inspection by anybody with a computer. Without encryption or password protection, such conduct seems outrageous. Because the County Recorder's Office now suggests that upon request, it will take steps to remove information, you should probably consider conducting a search on the Maricopa County Recorder's Office web site and if you see compromising information, request immediate removal of the private information by contacting the Recorder's Office at 602-506-3535 or visiting the office in person at 111 S. Third Avenue in Phoenix.

What do you think about the County's conduct? Do you believe our public records laws require that all information including social security numbers be released to anybody over the internet? Do you believe that our government should allow unlimited internet access to social security numbers and other personal information for another six months? Would a short-term delay of a few days be reasonable for the County to provide redacted records by mail rather than to allow immediate access to unredacted records, if such a minor delay minimizes risk of identity theft? Can you see important reasons to allow immediate access to public records while this six month transition takes place? Let me know your thoughts on this important issue.

Originally posted at InjuryBoard by Staff Writer

Even More Details Emerging about TJMaxx and Marshalls Data Breach

Staff Writer — Sun, 21 Jan 2007 08:24:42 GMT

Even more details are beginning to emerge about the theft of data on computer systems belonging to TJX Companies, the parent company of TJMaxx and Marshalls stores. Unfortunately it appears that thieves are actually using information they stole from the TJX Company computers. The on-line publication Computerworld described the data security breach as follows:

The scope of the security breach disclosed this week by The TJX Companies Inc. is starting to make itself evident, with more than three dozen banks in Massachusetts alone now reporting that cards they issued have been compromised.
A spokesman for the Massachusetts Bankers Association said this afternoon that 40 of the MBA's 205 member banks have said they suffered card compromises as a result of the breach at Framingham, Mass.-based TJX. That number is sure to grow as more banks report to the association, he added, noting that only about 60 have done so thus far.

It appears that the data stolen from TJX Company should never have been saved in the company's computer system in the first place. According to the Computerworld article, the data stolen from the corporate computer system included

account numbers, expiration dates and encrypted personal identification numbers, plus other information that card-issuing banks can include at their discretion.

Credit card company standards prohibit retailers from storing this information in its computer systems once a consumer transaction has been completed,

Retailers are forbidden from storing such information under the Payment Card Industry (PCI) Data Security Standard being pushed by Visa, MasterCard International Inc. and other credit card companies.

TJX Companies apparently did not follow this credit card company requirement nor did it encrypt sensitive data on its systems as also required by the Payment Card Industry Data Security Standard. Thus, although thieves stole credit card data and numerous consumers have apparently been affected, it appears that the TJX Company's lax adherence to the Payment Card Industry Data Security Standard allowed such an intrusion to occur. If this information turns out to be accurate, in my opinion, TJX should bear responsibility for allowing such a serious data security breach to occur. If you shopped at TJMaxx or Marshalls, what do you think about the company's approach to consumer privacy and data security? If you have recevied word from your credit card company that you may be a victim of this data security breach, do you think TJX Companies should be held accountable? I'd like to hear your opinions.

Originally posted at InjuryBoard by Staff Writer

Taser International to Introduce Consumer Stun Gun

Staff Writer — Sat, 06 Jan 2007 09:28:58 GMT

I just read today in the Arizona Republic that Scottsdale based Taser International plans on introducing a new consumer stun gun at the Consumer Electronics Show in Las Vegas next week. With its perfect record thus far on product liability litigation lawsuits against it relating to its law enforcement stun gun product, I am not surprised to see this company branching out into the consumer arena.

Last year, I reported periodically on product liability implications at Taser International. In one posting, I referred to a study published in the Journal of the National Academy of Forensic Engineers suggesting that the energy levels delivered in Taser's non-lethal weapons were considerably higher than indicated by the manufacturer placing stun guns into the lethal category of weaponry and raising the question about whether its weapons were defective and unreasonably dangerous. The study as reported in an Arizona Republic article discussed the possible dangers of the Taser weapon and its product liability implications.

Taser has successfully weathered a firestorm of controversy over its products and the deaths which have resulted from the use of its non-lethal weapons by law enforcement personnel. If such controversy exists over well-trained law enforcement and military personnel using its products, I wonder what can we expect when consumers begin to use them?

Originally posted at InjuryBoard by Staff Writer

Starbucks Employees Possible Identity Theft Victims

Staff Writer — Sun, 05 Nov 2006 10:52:04 GMT

Just this past week, Starbucks lost track of four laptop computers containing sensitive information including social security numbers, addresses and names of over 60,000 company employees. Looks like this company may know how to serve up some Java but needs some lessons on how to protect sensitive employee information. These employees may become the next victims of identity theft as a result of improper data security.

If you suspect that you have been or may become a victim of identity theft, the Federal Trade Commission web site entitled "Fighting Back Against Identity Theft" contains resources which may assist. This web site also contains a list of other web sites providing resources to guard against or assist victims of identity theft.

Originally posted at InjuryBoard by Staff Writer

How Would You Like to Start Your Day with a Cup of Coffee and 50,000 Volts?

Staff Writer — Mon, 06 Mar 2006 09:50:57 GMT

If you are a member of the United States Military, you can have your cup of coffee but do not expect to be stunned by a 50,000 volt Taser non-lethal weapon as a part of any training exercise. A new study released recently by the Journal of the National Academy of Forensic Engineers recently concluded that Taser stun guns are more powerful and potent weapons than originally envisioned. The study as reported in a recent Arizona Republic article commenting on the possible dangers of the Taser weapon and its product liability implications concluded:

"The findings show the energy delivered by the weapon to be considerably understated by the manufacturer," the Journal study said. "These findings place the weapon well into the lethal category."

The same Arizona Republic article quotes another research study conducted at the United States Army Aberdeen Proving Grounds in Maryland and in a follow-up instruction memorandum which concludes,

Taser is an effective weapon but added in the February 2005 memo that "the practice of using these weapons on U.S. Army military and civilian forces in training is not recommended, given the potential risks."

So if you are a member of the United States Army, in the course of your training, while you may have to dodge bullets and evade the enemy, rest assured that you will not have to receive a jolt of 50,000 volts of electric current in order to complete your training and defend our country. Taking away the sarcasm for a moment, to members of the United States military, please accept our most sincere thank you for your service to this country.

Originally posted at InjuryBoard by Staff Writer