TOV Injury and Safety Blog

Consumer cannot sue banks for fraud: pleadings lack sufficient particularity

Robert S. Zuk  attempted to sue US Bank Home Mortgage and others, alleging fraud.  Unfortunately for Zuk, fraud claims must be pleaded with great particularity, and in the  context of the recent banking/mortgage boondoggle, even the banks don't know what actions they took, what liens they held, who owns title to properties and who has enforcement rights.  Since many of the transactions were based on fudged records and included the conglomeration of thousands of debts into separate securities transactions, the banks have achieved fraud protection by their very mis-management.  Zuk's case was dismissed by Michigan's Court of Appeals because he couldn't meet the high threshold of fraud pleading.

Abbott Laboratories agrees to pay $1.6 billion dollar fine for illegal marketing of Depakote

The pharmaceutical maker announced this week that it would pay this combined criminal and civil fines by agreement with the federal government, after admitting that it violated federal law in marketing the anti-seizure medication.   As seems to be the case in most pharmaceutical manufacturers' punishments, the fines probably don't even approach the profits the company earned by its illegal conduct.

Although Depakote was approved for sale by the FDA, the FDA did not approve its use for schizophrenia or dementia.  Abbott illegally set up a "specialized sales force" that attempted to persuade nursing homes and others to purchase the drug to control patients' and residents' agitation.    This effort to "sedate" elderly patients, without securing FDA screening of the use for this purpose, was considered particularly egregious, given the patients' inability to protect themselves or to give their informed consent.

Abbott also wrongly marketed the drug for schizophrenia, even though its own clinical trials had not proven the drug to be more effective than existing antipsychotic medications.  Doctors may experiment with "off-label" or unapproved, untested uses of FDA-approved drugs, however, the manufacturer cannot market a drug for such an un-tested use.  In Michigan, drug manufacturers enjoy immunity for FDA-approved drugs--even though the approval was not secured for the marketed use of the drug.  Michigan is the only state that affords pharmaceutical manufacturers this form of immunity.

With profits down, Pfizer announces it will re-focus on research.

For years, apologists for the pharmaceutical industry have attempted to justify outrageous industry profits by arguing that they were necessary to support industry research that ultimately benefits consumers with new medications.  Last week's announcement by Pfizer that it now would re-focus on research in response to dwindling profits demonstrates how ill-founded the prior claim was.

Since Pfizer lost its monopoly on Lipitor last fall [parenthetically the best-selling drug in history], its profits have already dropped by 19% and company executives are announcing a radical shift.  Instead of buying up small competitors, Pfizer now plans to divest its animal health and infant nutrition subsidiaries, and instead focus its research efforts on only "the most promising" areas of pharmaceutical research.  One executive was quoted to the effect that "...we were spending huge amounts of money...we weren't producing the drugs we needed..." 

The Company also announced that it would spend less on research and development at the same time that it improved its focus on developing market-worthy new medicines.  Critics called this a risky and counter-intuitive strategy. In any event, it is yet another acknowledgement that enormous profits were not being directed to effective research in human medicine.

Academic research by University of Texas, University of Illinois and Nowrthwestern University demonstrates malpractice "reforms" did not increase doctor supply

A recent study by three highly-respected Universities demonstrated that the wholesale "reforms" [anti-victim limitations on medical negligence recoveries] adopted in the State of Texas had NO impact on the supply of doctors in the state.  The study concluded that the supply of physicians operating in the state was relatively "inelastic" and not influenced by steps taken to protect doctors from negligence claims.

The authors concluded that their research was consistent with prior multi-state studies showing that there is no relationship between "tort reform" and physician supply.  Even though special interest-Republican "reforms...dramatically changed the malpractice environment..." in Texas, they did not have any impact on the number of doctors in practice--even in poorer rural areas or high-risk specialties.  

The authors also found that the "reforms" did not influence health care costs in the state.  On the contrary, studies in Texas have shown that the major influence on health care costs in Texas is "fee for service" medicine and physician-ownership of ancillary services they can charge to provide.  Lastly, the authors noted that  insurance companies have fought "tooth and nail" to eliminate public access to reliable claims data which the National Association of Insurance Commissioners has attempted to create:  without this data, the authors indicated it would have been  impossible to ascertain the true impact of "reforms" such as those undertaken in Texas.

The authors explicitly pointed out that there was no factual support for "reformers' " claims that the lack of a cap on malpractice awards deterred doctors from practicing in Texas or that adopting a cap had increased the number of practicing doctors.  Supply was not stunted before reform and did not measurably improve after--even in so-called "high risk" specialties.  Neither did it influence health care costs by eliminating or limiting the practice of "defensive medicine."  The article is entitled "Does Tort Reform Affect Physician Supply?  Evidence From Texas."  It can be downloaded at http://ssrn.com/abstract=2047433.

Republicans propose legislation that would grant immunity to ER and delivery doctors

This week, Republican legislators in Michigan proposed a special interest "tort reform" bill that would excuse doctors for negligence in the ER or in delivering babies.  Five bills have been proposed and they include provisions that would require the sitting judge to dismiss any case that evidenced the exercise of professional judgment--whether "good" or "bad."  The case would be dismissed, apparently, if the doctor had to think about what to do, even if his or her subsequent judgment was faulty and caused injury. 

Reportedly the bills also grant doctors immunity for their actions or decisions in the ER or delivery suite, even if the actions or decisions are negligent [unreasonable].  Given the influence of insurance and health care special interests on Republican legislators, it is likely some form of these bills will pass, despite the fact that no "malpractice crisis" exists to warrant denial of compensation to innocent malpractice victims.  Apparenly only drunk doctors will be held responsible for their mistakes in Michigan.

New test may detect chronic traumatic encephalopathy before symptoms appear

The New York Times reported this week on a new medical study involving boxers and chronic traumatic encephalopathy (CTE).  CTE has gained prominence as professional football players' autopsies continue to demonstrate evidence of brain injury that was previously considered a product only of blows to the head suffered by professional boxers.   Indeed, the disease was formerly known as dementia pugilistica.  Today, as one after another NFL player is prematurely struck down by memory problems, depression, and intellectual dysfunction, the disease is gaining notoriety among a completely different population.  The suicide of 62-year old Ray Easterling, former Atlanta Falcon, after years of premature dementia, is only the most recent example.  The disease has gained additional notoriety as returning Mideast war veterans have experienced a high rate of post traumatic stress syndrome, CTE and suicide.

Veteran's autopsy fuels concerns over brain injury in returning Mid-East vets

The autopsy of a 27 year-old ex-Marine, formerly an honor student, has lent urgency to the discussion of Post-traumatic stress disorder (PTSD) in returning veterans.  The New York Times preported on April 26 that after the unnamed veteran's post-divorce suicide, an autopsy discovered evidence of chronic traumatic encephalopathy (CTE), the same form of brain injury observed in boxers and football players after repeated concussions.

The former A-student had returned from two tours in Iraq suffering from memory problems, irritability and social withdrawal.  He began drinking heavily, was diagnosed with PTSD, caused a drunken car crash, and his wife commenced divorce proceedings.  At his parents request, police investigated his apartment and found that he had hung himself.  The discovery of CTE, objective damage to his brain, strongly suggested that there may be a physical component to returning veterans' PTSD in addition to the pschological component.  Although there has been only one peer-reviewed medical publication of CTE findings in a returning vet's autopsy, the NYT reported that investigators associated with three separate scientific study groups have found additional examples that are headed toward publication. 

These findings, if borne out, would help to explain the signifcant increase in post-deployment suicides among Mid-East veterans, and also help physicians to better understand the traumatic origin and foundation of PTSD.  Unfortunately, CTE cannot be detected by any means other than autopsy, severely limiting the usefulness of these findings in treatment.

Merck pleads guilty to misbranding Vioxx

This week Merck & Co. pleaded guilty to mis-branding Vioxx in order to settle criminal charges that it sold Vioxx for unapproved uses and made false statements about its cardiovascular safety.  Merck had previously paid $4.85 billion dollars to some 50,000 patients who suffered strokes or heart attacks and blamed them on Vioxx.  Merck will also pay more than 300 million dollars in criminal fines.

Unfortunately, none of these reparations will benefit Michigan residents:  As part of "tort reform," Republican legislators adopted the nation's only statute granting complete immunity to any product that had been approved for sale by the FDA.  Even where, as here, the FDA approval is procured by fraud or the manufacturer evades the limitations on sale of the product, the immunity stands.  Recently the Republican majority of Michigan's Supreme Court upheld this immunity even with regard to expenses wrongfully incurred by the State as a result of a drugmaker's misdeeds.

Verdict for women raped in prison will go primarily to lawsuit lender due to 88% return

The Detroit Free Press reported on a travesty of justice this week.  Eight women sued the State of Michigan and won a 5 million dollar verdict arising out of having endured prison rapes.  The State appealed.  While the case was on appeal, the women borrowed $635,000.00 from MONEY FOR LAWSUITS, a company that makes loans at outrageous rates to individuals who are likely to achieve verdicts or settlements from a wrongdoer.  Eventually, the State agreed to compromise the judgment and agreed to pay the women $3.5 million dollars.  This week, a judge ruled that the company is owed $3.1 million dollars of the settlement.  The contract Money For Loans prepared calls for 4.25% interest compounded monthly, according to the Free Press, resulting in an 88% return.  Even competitors in the lawsuit funding industry objected to the terms of the contract demanded by Money For Lawsuits.  Mark Bello of Lawsuit Financial claims his company will never demand more than fifty percent of an injury victim's recovery.

One former Feiger attorney explained that in two recent cases where he had achieved substantial verdicts, his clients owed "four or five times" what they had been loaned because of unethical--but perhaps legal--interest demands. To date, our firm has been successful in persuading our clients to avoid these "litigation funding" firms.  Unfortunately, many injury victims face extensive medical billings (often in the hundreds of thousands of dollars) and are unable to work:  they are ripe for abuse at the hands of someone with money and the ability to "invest" it for a few months or years.

Homeowner improperly foreclosed upon loses "third strike."

Like many others, Donald Bond admitted he was in default on his mortgage. Nevertheless, when U.S. Bank commenced foreclosure on his property, it did not even have a legal interest in Bond's mortgage.  It acquired an interest on October 13 of 2008, but had sued for foreclosure in District Court in September of 2008.  Bond fought the Bank's eviction action, claiming that the bank lacked the legal right to pursue foreclosure, however, the trial judge mistakenly ruled that the mortgagee's interest in the property was not a proper defense to an eviction action. 

Bond did not appeal that result, but instead brought a separate action to enforce his legal rights.  Unfortunately, the court in the later action ruled that under existing law the decision in the eviction action determined Bond's rights and he could not "re-litigate" the issue.  Even though the prior decision was mistaken, his rights were foreclosed by his failure to appeal that ruling.

Malpractice insurer discusses expenses associated with defending malpractice claims

In a letter to the New England Journal of Medicine, several doctors reviewing data from a national malpractice insurer attempted to quantify the cost of defending malpractice claims.  Of course, data from 50 states is inherently misleading in any one state, since there are 50 entirely different systems for proving fault and collecting damages, and 50 different responses to insurers' calls for "tort reform."  In many states, "reforms" have granted doctors and their insurers enormous special advantages, and, for example, damages are "capped" at levels ranging from $250,000.00 per injury to $1,000,000.00 per injury.  In other states, where consumer advocates have balanced the impact of big-money contributors, "reforms" have been more balanced and precise.

Judges, not named as Defendants in wrongful discharge claim, are allowed to sue defense attorney

In a very political and hotly disputed ruling, this month the Court of Appeals ruled, in a split decision, that two 48th District Court judges could sue the attorney who represented the Court.  A court clerk, Michelle Horton, had sued the Court for wrongful discharge and the firm of Garan, Lucow, Miller was retained to represent the Court. 

The judges were merely witnesses in the actual proceeding, but as the supervisors of Horton who terminated her employment, they were intimately involved in the proceedings and more than somewhat interested in the outcome.  They did not retain their own counsel, and if they had, their attorney would not have enjoyed standing in the discharge claim, since the judges were not named as parties.

Federal Court allows injured workers to sue employer, insurer and "independent" [IME] doctors for fraud

A group of Cassens Transport Company employees who had been injured on the job sued Dr. Saul Margules, Cassens, and Cassens' self-insured claims manager, Crawford & Company, alleging that the three conspired to deny benefits to injured workers.  The suit alleged that Crawford consistently retained unqualified and biased physicians to render fraudulent reports disputing the workers' injuries or medical condition.

Attention brought to immunity issue involving generic drugs

In most states, a drug manufacturer may be sued if a drug it patents is sold with inadequate warnings and instructions to consumers.  The FDA approves drug warnings and labeling, but the manufacturer remains liable if the language proves inadequate in practice.  Well, actually the manufacturer remains liable in all states except Michigan where "tort reformers" gave manufacturers immunity for all drug claims involving FDA-approved drugs (even if the approval was later withdrawn or originally achieved by fraud or falsified data).

Last year, the U.S. Supreme Court majority granted immunity to generic drug manufacturers for "failing to warn," with the conservative majority holding that since generic manufacturers were merely copying the drug and labeling from patented drugs, they owed no duty to consumers to provide further information.  This immunity grant created an unlikely situation. Consider this example:  Diana Levine, a professional musician who lost a hand when an injection of anti-nausea drug in the ER caused gangrene, collected $5.8 million dollars in damages against Wyeth, the drug manufacturer.  Debbie Schork suffered the identical injury in similar circumstances, however, her claim was dismissed without compensation, because the ER nurse injected her with a generic version of the drug.

Since 80 percent of prescriptions filled in the U.S. are now filled with generics; since many health insurers now require the use of generics and the law allows pharmacies to substitute generics for prescribed medications, there is little or no justification for granting generic manufacturers immunity for inadequate warnings and instructions.  The ultimate goal of a legal system should be to render justice that is uniform, predictable, and consistent.  The situation existing with regard to pharmaceutical manufacturers enjoys none of these characteristics.

USA Today points out that pharmaceuticals have paid at least 8 billion dollars in fraud penalties

In today's USA TODAY, it was pointed out that Pfizer has paid 3 billion dollars in fines and Merck an additional $1.6 billion, with other major pharmaceutical manufacturers paying more than $3.4 billion.  Despite this record of overwhelming fraud on Medicare and Medicaid, the companies continue to make record profits from sales to Medicare and Medicaid recipients, because under their patent protection, the consumers have no where else to purchase needed medications.  An Assistant inspector general for Health and Human Services pointed out that the government is "seeing some of the big companies a second and third time...the corporate integrity agreement [which convicted companies sign as part of the resolution of claims] is not sufficient to deter further misconduct."  In response, Republican Chuck Grassley of Iowa joined with Democrats to attempt to pass a federal bill that would include individual liability for corporate executives, however, heavy spending (over 200 million dollars including 12 million by Pfizer) and lobbying by the pharmaceutical companies has thus far prevented passage.

Children not removed from abusive parents despite multiple incidents of neglect cannot sue protective service workers

In a major new holding, the Court of Appeals rejected wrongful death claims brought on behalf of two dead children.  One child suffocated in a house fire after being chained to her bed, while the other child was murdered by his father.  In both cases, the authorities had been alerted to multiple abusive episodes in advance of the fatal events.  The Republican Court of Appeals judges ruled that Michigan law provides no remedy for the kids' estates.

University of Michigan investigation demonstrates filthy surgical instruments are common hazard

It does little good for your surgeon to "scrub up" carefully, if the tools of his profession harbor bacteria.  In part because of a design flaw in many surgical instruments, it turns out that bacteria and debris are frequently carried from patient to patient in inflow/outflow cannulas, arthroscopic shavers, endoscopes and other instruments. Recent investigations have documented literally hundreds of infections, some fatal, transported within these instruments because the medical professionals using them had not followed manufacturers' instructions on cleaning.  In other cases, however, investigators have determined that the manufacturers' instructions are simply not adequate to remove surgical debris (and germs). 

Court allows fraud claim against adoption agency to go forward

Seven couples sued the "Waiting Angels Adoption Services, Inc.," arguing that they were defrauded by the agency and individuals Simone Boraggina and Joseph Beauvais.  The Defendants sought summary disposition of the claims and in response the couples identified four specific acts as evidence that the agency was a "Racketeer Influenced and Corrupt Organization."  The trial court held that the evidence put forward by the couples was not adequate to pursue a RICO claim against the Defendants, however, the Sixth Circuit reversed and reinstated the claim.  Among the misrepresentations documented by the couples were claims by the Defendants that the agency was a non-profit, and claims that specific children were currently awaiting adoption.

Woman dismissed from graduate counseling program can sue claiming civil rights violation

Julea Ward pursued a a graduate-level counseling degree from Eastern Michigan University.  Throughout the three-year program she maintained an outstanding grade point average, although she consistently raised concerns over the conflict between her individual religious beliefs and the counseling program's "values-affirming" approach to issues involving homosexuality and extra-marital sexual relationships.  During her final year she was assigned to counsel a gay patient and sought re-assignment of the patient to a counselor who did not share her religious objections.  

Federal Government seeks to expand immunity for negligent medical care of active duty family members

In a sad example of "what have you done for me lately?" attorneys representing the federal government are taking aggressive steps to broaden the immunity the federal government claims for medical negligence.  Several decades ago, a decision of the U.S. Supreme Court held that although active duty service members are entitled to government-provided medical care, they cannot sue for negligence.  Whether or not that was a good idea or sound public policy, the decision has never been applied to the family members of active duty servicemen.  Now, in an effort to "contain costs," government attorneys are arguing that the decision should also apply to cases where a serviceperson's dependant was damaged by poor care.  The Military Times reported this month that attorneys in Florida are raising the immunity issue in a case involving the death of a service couple's baby and in a case involving the failure to diagnose a  serviceman's wife's subsequently fatal cerebral hemorrhage.

Frankly, it is beyond us why the "sovereign" or "governmental immunity" English Kings granted themselves in court should continue to apply in a democracy in any situation.

Revision to DSM 5 will likely include depression resulting from grief

The New York Times reported last week that the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association will likely include a sub-classification of depression resulting from the loss of a loved one.  The DSM 5, the first revision since 1994, will be controversial in this regard as practicing Psychiatrists disagree about whether normal grieving ("bereavement") should be classified as depression.

The current DSM did not include bereavement as a form of depression.  Under the current criteria, a patient must display five of the nine symptoms of depression for more than two weeks in order to be diagnosed with that condition.  The symptoms include, for example, sleeping problems, feelings of worthlessness, inability to concentrate.  Research suggests that 8 to 10 million people lose a loved one each year and that between one-third and one-half would qualify as "depressed" under these criteria for more than one month.

Other controversies arising out of the new DSM include a re-classification of autism that would significantly reduce the number of persons diagnosed, and the promulgation of a new classification "attenuated psychosis syndrome" which some treaters believe is a thinly-veiled attempt by Big Pharma to sell more drugs.

Newspaper derides claim that "tort reform" resulted in savings to consumers

The editors of the Henderson Daily News in Texas published an article this month repudiating claims that adopting aggressive "tort reforms" had resulted in benefits to consumers.  The Editors pointed out that limiting victims of medical malpractice to $250,000.00, as Texas did in 2003, was touted as a means of lowering the cost of medical care and health insurance.  It was also suggested that it would make Texas a more hospitable location for doctors.  The outcome after almost nine years? Well, not so good.  Texas did not obtain a competitive advantage over other states by reason of tort reform. 

Establishment attacks on middle class continue in Washington D.C.

In two unrelated developments this week, America's middle class took additional punches from the Republican majority in Congress and on the Supreme Court.  One involved the abusive practices of credit card companies, while the other involved steps to emasculate the Whistleblower Protection Act by the Chamber of Commerce.

Justice Antonin Scalia wrote the opinion for a Supreme Court majority that upheld a "credit relief" company's ability to avoid a class action lawsuit.  Three Oakland, California consumers sought the latter status in order to make economically viable their effort to seek justice arising out of CompuCredit Corporation of Atlanta's despicable small-print charges.  In essence, the company offered consumers a $300.00 credit card, but then, in the fine print, charged them annual service fees totalling $257.00 ($29.00 initial fee; $6.50 monthly fee and $150.00 annual fee--plus any interest charges the consumers actually incurred--presumably at a typically usurious rate of 19-30 percent).  The Court held that Congress' recent Credit Repair Organizations Act--even though it was clearly intended to end similar practices--did not authorize the abused consumers to file a legal action if there was a mandatory arbitration provision also buried in the transgressor's fine print.

In the other situation, the National Journal reported on a Chamber of Commerce campaign that has successfully moved legislation through the Republican-controlled House of Representatives.  The proposed law would require whistleblowers to report their observations internally, rather than directly to legal authorities.  Critics of the bill have adroitly identified the obvious motivation and impact of the bill:  employees with inside information of illegal activity will be squelched before their revelations can reach law enforcement.  Potential whistleblowers will be intimidated, placed at risk and potentially "bought off" if necessary, before fraud and misbehavior see the light of day.  At a minimum, the companies will gain time to "cover their tracks" before the legal authorities are alerted to illegal behavior.

The Chamber of Commerce is, in our humble opinion, the single most despicable influence in American public life.  While it once represented Main Street America and may have played a beneficial role in domestic public policy, in twenty-first century America, it is simply the most powerful tool of the "one-percenters" who dominate public policy with excessive profits and are squeezing the middle class out of existence with their overwhelming financial power.

Risperdal maker faces additional exposure (in hundreds of millions of dollars) for illegal marketing

In 2010, a Court in Louisiana awarded the State 257.7 million dollars against Johnson & Johnson, for its illegal marketing of the drug. In 2011, a South Carolina judge ordered the company to pay $327 million dollars because of its illegal marketing efforts in that state.  Two weeks ago, the company agreed to a one billion dollar civil settlement with the federal government over the latter's claim that Risperdal was marketed illegally.  This week a trial started in Texas over that state's claim that Johnson & Johnson owed more than one billion dollars in false marketing damages.    Risperdal is an antipsychotic drug that was never approved by the FDA for treatment of children or the elderly.  Despite that limited approval, courts and experts have determined that the manufacturer lied about the drug's efficacy and encouraged physicians to prescribe it for unsafe and unproven purposes.  Cases are also pending in seven additional states.  Cases in two states are on appeal, including a 330 million dollar judgment in Louisiana. There are also approximately 500 individual injury claims pending against the company.

Risperdal was once the company's best selling dru, generating sales in excess of 24 billion dollars from 2003 to 2007 when it lost patent protection. Profit margins were apparently pretty good, as the South Carolina judge concluded that Johnson & Johnson's profit on the drug was 97 percent of total sales.  Other competing manufacturers have paida total of2.66 billion dollars to resolve similar government marketing claims.

The Texas allegations against the manufacturer include claims that it paid $340,000.00 to Texas state mental health employees to promote the drug.  They also include claims that sales representatives were making marketing calls on doctors who only treat children--despite the company's claim that it did not market the drug for use with children or the elderly.  The Complaint filed in Texas includes specific facts that seem unlikely to be false, for example the allegation that the company's sales representatives called on one child psychiatrist a total of 96 times.

Michigan citizens won't be recovering any of their hundreds of thousands of mis-used tax dollars from the companies who defrauded our taxpayers:  Michigan Republicans passed the only law in the nation that grants immunity to drug manufacturers if their product was approved by the FDA.  They can safely lie, cheat, steal or bribe in our jurisdiction, apparently.

Michigan Supreme Court Justice continues to throw mud.

Former AAA lawyer and current Michigan Supreme Court Justice Robert Young continues to engage in verbal sparring with his colleagues.  It wasn't too long ago that Young and then-Justice Elizabeth Weaver aired their dirty laundry in public.  When Weaver retired, Justice Young's truculence did not.  This week, he suggested that his colleagues were elevating their own prejudices above the law when they suggested that Progressive Michigan Insurance Company was in substantial compliance with the law.  Under Michigan law, an insurer that wishes to exclude liability coverage for a particular driver must make clear to the policy holder that the vehicle owner will remain "liable" if the excluded driver causes an accident while driving.  Progressive, whose marketing campaign has over-extended its legal department in most phases of Michigan practice, used the word "responsible" rather than the word "liable" in its notice to insureds.  One Court of Appeals judge and several Supreme Court Justices suggested that the Progressive notice was either substantially in compliance with the law or a question of judicial discretion. 

Pompous Justice Young quoted his own obscure Oklahoma City University Law Review musings to castigate these other judges for their "shocking departure from the rule of law."  He suggested that "all Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves."  He concluded: "The rule of law requires a judge to be subservient to the law itself, not the law to be subservient tot he personal views of a judge."

Two Democratic nominees to the Court and Republican nominee Justice Markman both pointed out that when Progressive substituted "responsible" for "liable" in its insurance policy notice, it was fully in compliance with the Legislature's intent as well as the statutory language, and that the judges' disagreement with Justice Young did not warrant the ad hominem attack that Young perpetrated on his fellow judges.

Sadly, with strong cash backing from insurers and the Chamber of Commerce, we continue to elect judges who are thoroughly divorced from the very characteristics that most people associate with the judiciary:  that is, logic, common sense and a sense of justice.  Add to that a lack of humility, and our judiciary is in an ugly state.

Scientists explore weighty data linking asthma and acetaminophen

In 1998 Dr. Arthur Varner, a fellow at the University of Wisconsin Medical School, published his suggestion that perhaps the dramatic rise in asthma occurring during the past thirty years was associated with the radical change from aspirin to acetaminophen as the treatment of choice for childhood fevers.  Since then, 20 different studies have been published suggesting a link between acetaminophen and asthma.  Unfortunately, most have been confounded by the fact that the subject children are likely to be receiving acetaminophen to address viral illnesses that have also been linked to asthma:  it has not been clear whether scientists are simply tracing the association between a treatment for infectious fever and an infectious cause of asthma.

One study intended to address this potential confounding of causation randomly assigned young patients to receive either ibuprofen or acetaminophen for fevers.  The acetaminophen patients did report significantly more asthma symptoms in the following year. A larger study is now being undertaken in an attempt to further quantify this relationship and scientists note that both acetaminophen and non-steroidal anti-inflammatories each have risks and advantages.  Nevertheless, one physician was quoted in the New York Times to the effect that he would prescribe his child ibuprofen for fever, given the present state of knowledge.

Republicans pass workers comp bill that will deny benefits to many injured workers.

Today the Michigan Legislature sent to the Governor a "wish list" bill sought by Michigan insurance companies.  The bill reduces workers compensation paid to injured workers. Among other provisions, the bill proposed making injured employees pay for a second opinion if they don't completely trust the employer's comp doctor.  Republicans have parrotted the insurers' claim that workers comp benefits  (80% of net pay at the highest) are "too generous" and discourage workers from seeking potential alternative employment.  In response the legislation deducts what the employee theoretically could earn despite his or her injury.  Democrats claim that these phantom, theoretical earnings are not actually available to the injured employees, particularly in the current economy.  In the case of some low-paid workers, this theoretical "credit" will extinguish their entitlement to any wage loss--even though they cannot sue their employer or co-workers for negligence under comp laws.

Insurers sue Michigan Blue Cross alleging illegal conduct

Aetna, Inc. filed suit against Blue Cross Blue Shield of Michigan this week, alleging it uses an anti-competitive scheme that forces other insurers to pay higher prices for hospital care.  Blue Cross reportedly insures almost sixty percent of Michigan residents.  According to the lawsuit, Blue Cross enters into agreements with providers that exclude other insurers and require the providers to charge as much as forty percent more for services.  These allegations would constitute a violation of federal anti-trust law. 

The State and the federal government already have a suit pending against Blue Cross, alleging the same illegal conduct:  Blue Cross sought dismissal of that suit earlier in the year and was denied.  According to the Aetna lawsuit, Blue Cross raised rates to insurers and passed the money generated through higher rates through to providers to induce them to raise rates on insurance competitors.  According to Aetna, 70 Michigan hospitals have signed this type of contract with Blue Cross; one anonymous hospital executive was quoted to the effect that "Blue Cross represents thirty percent of our patients, we can't put that in jeopardy."

New statute allows use of Medicare data base to evaluate doctors

One little noticed aspect of President Obama's health care legislation was a statute expressly allowing use of Medicare data to evaluate the performance of physicians paid by the government for services.  Previously, a federal court case had held that the use of such information would violate the doctors' "right to privacy."  Legislators from both parties voted to adopt the statute expressly over-turning this holding. On Monday, the government announced that the Medicare data base will be opened to employers, insurance companies and consumer groups, solely for the purpose of identifying the experience and complication rate of physicians.  Individual patient records will not be identifiable or accessible.

State seizes prisoner's life insurance proceeds and he is not allowed to waive receipt

Wayne Snyder was imprisoned in 1999.  When his mother died, Snyder was to receive life insurance proceeds in the amount of $2500.00.  The State Treasurer seized the proceeds, however, and obtained a court order granting the state 90% of the insurance money  under the Correctional Facility Reimbursement Act.  Snyder appealed.

Underage press operator cannot sue owner of unguarded press

Joshua Sparks sued Century Tool & Die and several other defendants after severely injuring both hands operating an unguarded press.  The Court of Appeals ruled that the lower court erred in deciding the factual issue of who owned the press, but still upheld the dismissal of the claim against Century.  It ruled that the owner of a press owes no duty to assure that it is properly guarded once it is provided to other parties to operate.  Of course, the underaged employee cannot recover damages from his employer, either, because he is limited to workers' compensation benefits.  And, most likely, since he retains some residual earning capacity and worked for a low wage, he will get nothing in the way of wage loss if the Republicans are successful with "worker's compensation reform."

No insurance coverage for sexual assaults commited by Sheriff's Deputy

Livingston County Sheriff's Deputy Randy Boos was sued by several women who had either alleged, or proven, that they were sexually assualted by him after being taken into custody.  The County's insurer, the Michigan Municipal Risk Management Authority, argued that it's broad "criminal acts" exclusion allowed it to refuse to provide indemnfication for Boos' victims.  It argued that Boos' actions were outside his authority and duties as a Deputy, criminal in nature, and therefore not covered by the insurance policy covering County Deputies.

Drug companies seek to overturn rule prohibiting marketing for off-label uses

Several sources reported yesterday that the major drug manufacturers have initiated a campaign  to overturn the FDA Rule that prohibits them from actively marketing drugs for uses that have not been researched and approved.  As the law currently stands, drugs are approved by the FDA for particular uses, and while a physician may utlize a drug for a purpose not previously approved, the manufacturer cannot actively market and promote these "off-label" uses.  Now, Big Pharma is using its money and influence in Washington to eliminate this safety rule. Not hard to guess who will win this round, given the current influence of money in politics.

House Republicans vote to reduce workers compensation in Michigan

This week the Republicans in the State House passed a new law that would reduce the benefits paid to injured employees.  Among the changes:  a requirement that the employee pay out of pocket to seek a second opinion or to see his own doctor; and a rule that all injured employees whose disability is not total must be assumed to have residual earning capacity for which the employer's insurer is given credit. 

As a result, a minimum wage worker who lost an arm or a leg, for example, would not receive normal comp (maxed out at 2/3 of net pay):  he or she would be assumed capable of working another minimum wage job (convenience store clerk) and denied any wage loss--whether he can find such a job or not. 

Republicans are dismantling the safety net entirely for low wage workers; the Chamber of Commerce, who pushed this bill, should be ashamed.  Some Republicans think the bill goes too far and could alienate voters; they have called into question whether it should be confirmed by the State Senate and the Governor.  The Democrats, in the minority, have no effective say in the issue.

Anonymous company bids to set consumer product safety policy in secret court proceedings?

Is this how policy is made and justice meted out in the United States today?  The Consumer Product Safety Commission establishes a website where consumers can find data on product complaints.  A company files a federal lawsuit, under seal, seeking to overturn the CPSC's authority to maintain the website, and gets permission to keep the proceedings secret?  For the moment, yes.  And this is not China; not Iran; not North Korea.  It is our country and our court.  Our forefathers would roll over in their graves.  Let's hope the presiding judge injects some sanity into this action and makes the public court system public when it decides national policy on consumer protection.

Court releases Annual Report with data on personal injury filings

Insurance companies have repeatedly sought legal "reforms" to eliminate "frivolous" personal injury claims.  Unfortunately, they have created a public [mis-]perception of the so-called "tort" system that is 180 degrees from reality.  While many reasonably informed people believe that injury cases are a major burden on the court system, reality confirms they are not:  criminal, domestic and business claims dominate our courts and insurers pretty much get a free ride.

The 2010 Annual Report shows that 2.4 percent of the filings in the 13th Circuit Court (Antrim, Grand Traverse and Leelanau Counties) were automobile negligence.  That number includes cases brought by injury victims or health care providers whose medical expenses or wage loss had been discontinued or were unpaid by the victim's own No Fault PIP insurer.  1.8 percent of the Court's new filings fell in to the category of "other civil damage claims," which category includes, for example, all products liabilty, dramshop, medical malpractice, and property damage claims. 

This is not a new trend: the local court has published similar figures in its past reports.  Numbers for the state-wide court system are similar, if slightly higher:  3.56% auto cases and 1.85% "other."

State-wide, criminal cases added up to about 20% of the docket.  Juvenile claims were another 20%, and divorce was about 16% of the docket. Paternity cases (6.14%) out-numbered injury cases of all types. Local numbers were similar, but with divorce actions being more common (21%) and criminal actions less common (11%).

Feds continue to document payments by device makers to surgeons

Still wondering why that recent hospital procedure was so expensive?  Maybe it was the several thousand dollar cost of the medical device used by the surgeon.  Wondering why that cost so much?  Maybe because some surgeons earn nearly a quarter million dollars annually with payments from medical device makers.  A study published in the Archives of Internal Medicine examining the disclosures of five major medical device manufacturers showed that they paid surgeons more than $198 million dollars in 2007, alone.  The data comes from a U.S. Senate investigation sparked by disclosures that Medtronic had paid surgeons to promote the use of it's since-discredited bone-growth implant Infuse and perhaps fudged their data on infections and complications.

Basic techniques like hand-washing save "100s of [childrens'] lives" in recent study

Medpage Today published the results of a recent study by the National Association of Children's Hospitals and Related Institutions.  It looked at data from the first 29 hospital ICUs to adopt guidelines developed by Johns Hopkins and the University of Michigan for management of central lines and catheters.  The basic "maintenance bundle" of guidelines emphasizes hand-washing, timely replacement of dressings and devices and use of pre-packaged supplies.  Pediatric-ICU central line-associated blood streat infections were reduced by 56%, from a rate of 5.2 per 1,000 patient-days to a rate of 2.3.  Savings kids' lives by attention to sterility:  maybe our practices have been more barbaric than we suspected.

Court holds 8 year-old girl cannot attend her own malpractice trial

This month the Georgia Supreme Court will be hearing an unlikely constitutional argument.  Kyla Kesterson has filed an appeal, through her Next Friend, of a trial judge's ruling that she could not attend the medical malpractice trial against her doctor.  The doctor's lawyers argued that Kyla's injuries were so severe that the jury, if exposed to the injuries for too long, would render a decision based solely on sympathy. The trial judge granted the doctor's [insurer's] lawyers' motion and limited Kyla to three brief appearances in the courtroom. 

So far as we know, this is the first ruling of this kind in the U.S.  This unprecedented denial of the young woman's right to be present at her trial would only be possible in an atmosphere where the financial interests of insurers are weighed more heavily than the due process rights of a catastrophically-injured girl.  Usually we see this kind of ruling coming only from a jurisdiction such as China, where individual rights are historically downtrodden.  Odd that this decision would be handed down within one year of the U.S. Supreme Court holding that corporations are citizens having the right to make unlimited political contributions.  Wonder if they could be excluded from a trial?

Our system of justice in this country is being overwhelmed by corporate money.  In another generation, the only difference between our courts and the Chinese courts will be that ours are dominated by for-profit corporations rather than the central government.

Cantaloupe infections are traced to Jensen Farms' barn

The listeria outbreak related to cantaloupe that has so far caused 25 deaths and sickened more than 120 people, has been traced to a processing barn owned by Jensen Farms in Granada, Colorado.  Federal authorities found the deadly bacteria on a conveyor belt that carried the fruit, as well as a melon drying area, a floor drain, and in other locations within the shed.  The farm had "passed" a food safety audit by an outside contractor only days before the outbreak began, according to Eric Jensen, earning a score of 96 points out of 100! 

Most food suppliers are required by retail purchasers to undergo these "independent" audits in order to sell their fruit.  In this case, Jensen had contracted with PrimusLabs and it subcontracted the inspection to a Texas Company, Bio Food Safety.  The president of the latter company disclosed that the auditing employee had been hired in March of this year, and claimed that he had received two one-week training courses.  Incredibly, the company "thought he did a pretty good job" inspecting the facility and claimed it had reviewed the audit and "found no problems in how it was conducted or in the auditor's conclusions."  According to the New York Times, when the president of thecompany was asked how its inspector could give high marks to a facility that was described by the FDA as a "breeding ground for listeria," he responded that "There's lots of variations as to how people interpret unsanitary conditions." 

This is what passes for food safety in the anti-government, market-based economy that Texas Republicans like to celebrate.  Hopefully Jensen and the "auditors" will pay enough in personal injury verdicts and settlements to prove that superficial, cheap food safety "audits" aren't profitable.

New infection guidelines show significant impact on hospital infections.

Bloomberg News reported today that the Department of Healthand Human Services has concluded that the rate of four common hospital ("nosocomial") infections dropped significantly in 2010.  The number of patients who acquired methicillin-resistant Staph (MRSA) declined by 18 percent.  There was also a 33 percent reduction in bloodstream infections (sepsis) caused by insertion of central lines.  Surgical-site infections were reduced by ten percent and urinary tract infections were down by seven percent. 

These developments are not coincidental. They arise out of work by Johns Hopkins and the University of Michigan in popularizing the institutionalization of basic infection-preventing measures and the federal government's decision to reduce reimbursement of expenses resulting from preventable infections.

Pediatricians warn against using bumper pads in cribs

The nation's American Academy of Pediatricians issued a recommendation on Tuesday, suggesting that parents not use bumper pads in cribs.  The doctors pointed out that the bumper pads are a suffocation hazard and apparently can contibute to the risk of Sudden Infant Death Syndrome (SIDS).  They are not effective in preventing injuries caused by limbs being trapped in slats.  The City of Chicago has already issued a ban on bumper pads and the State of Maryland is considering a ban.

Court upholds single woman's right to purchase in vitro fertilization services from Grand Rapids Clinic

Allison Moon, a single woman, attempted to secure in vitro fertilization services from Michigan Reproductive & IVF Center and from the Grand Rapids Fertility and IVF Professional Corporation. Both entities informed Moon that they would not provide these services to an unmarried woman.  She filed suit, alleging illegal discrimination based upon marital status.  The Kent County Circuit Court judge dismissed her claim, holding that a doctor is free to refuse to treat any patient for any reason.  The Court of Appeals overturned the lower court, holding that a service may not be denied to a category of patients where the Legislature has prohibited discrimination on that basis.

Texas report repudiates claims that "reforms" delivered benefits

The Fort Worth Star Telegram of October 12 published an article describing the findings of a Public Citizen report that refuted the claim that malpractice reforms had benefitted medical care in Texas.  The "reforms" enacted in 2003 did not reduce health care costs or insurance premiums, which have risen faster than the national average since 2003.  During this period, the number of Texans without health insurance, and their percentage of the total population, have also risen faster than the national average.  The legislation also did not improve the per capita number of doctors in the state (i.e., doctors did not stop leaving the state or flock in, as suggested by some).  One of the authors of the Report suggested that the only "winners" from Texas "reforms" were doctors and insurers. Malpractice payouts have dropped by 65% and malpractice premiums have dropped by approximately 50%.

Federally-sponsored task force recommends against prostate screening for men

The United States Preventative Services Task Force issued a recommendation this week that men not undergo routine prostate cancer screening.  So-called PSA or prostate-specific-antigen testing has become routine with many physicians and is now a very lucrative business for the manufacturers of the test, the labs who process tests, and the doctors who treat prostate cancer.  Nevertheless, the Task Force called for elimination of routine screening and cited five well-controlled clinical trials to support its conclusion that PSA screening does not save lives and does cause untold misery to many men.

Diagnose your own heart attack because Medicaid won't pay for the E.R. doc to do it.

The future of health care in America was on display in a Washington State Court house this week, as a group of patients and Emergency Room doctors sued the state over new Medicaid rules.    The group objected to a proposed rule that characterized 700 diagnoses, including "chest pain," miscarriage, abdominal pain, and breathing problems, as "non-emergent" and may require the patient to pay for the E.R. visit if the patient is a return visitor to the E.R.  The physicians argued that the new rule puts patient safety at risk and unfairly denies payment for reasonable medical care. 

With one-third of the population of the State of Texas lacking any health insurance, and one in four kids in Michigan below the poverty line, rules like the one adopted in Washington threaten basic care needs for a significant and growing share of the U.S. population.

Listeria outbreak appears to be third-most fatal food-borne illness outbreak since Feds began record-keeping

The New York Times reported today that the listeria outbreak associated with cantaloupe sold by Jensen Farms' Rocky Ford Company in Colorado is now the third-most deadly food-borne illness recorded in the U.S. since the early 1970s.  13 deaths have been recorded, with most of the victims being elderly.

Study by cardiologists demonstrates better care, higher survival rates for privately insured patients

In reporting a study that was described as "shocking and equally disturbing" by one of its cardiologist authors, the September 27 issue of the Journal of the American College of Cardiology documents that the outcomes for cardiology patients vary by the type of medical coverage they enjoy.  HealthDay reported on September 21 that the study evaluated the medical charts of 99,508 patients from 244 different hospitals that had agreed to participate in the AHA national quality improvement program.  Even in these hospitals that had opted to participate in a quality improvement program, it was determined that Medicare and Medicaid patients and uninsured patients were less likely to receive certain essential treatments and more likely to die in the hospital, than  were patients who are covered by private insurance plans.

The study noted that "disparities do exist" and they are "associated with worse outcomes."  One of the authors explained that "care continues to be tailored to the individuals bsed on their pocketbook, and not on their condition." Patients with no coverage, Medicare or Medicaid were less likely to be given any of several blood pressure medications and less likely to receive an implantable cardioverter defibrillator, all "proven therapies" that result in documented improvement in recovery and decreased mortality.  In part because of the failure to provide evidence-based therapies, the hospital stays for uninsured or publicly-insured patients are also longer.  The authors questioned whether the results are also influenced by the obvious socio-economic disparity between privately-insured patients and the the other groups with whom they were compared.

George Thompson again identified as one of State's best lawyers

The Michigan Super Lawyers magazine for 2011 again identifies our partner, George Thompson, as one of the best lawyers in Michigan.  He has been identified through this process as one of the top lawyers advocating for seriously injured people every year the list has been published.  We have not bothered to become familiar with how the editors select the list of "top lawyers," but the magazine claims that it involves an examination of the lawyer's credentials and a survey of practicing lawyers. The designation is not something that a lawyer can apply for, nor is it something lawyers can influence through purchasing advertising.

Sixth Circuit confirms that suspended school student enjoys limited due process rights.

In Heyne, et al. v. Metropolitan Nashville Public Schools, the Sixth Circuit recently upheld the long-established principle that a student suspended from a public school is entitled to very limited due process protection.  Basically, the student is entitled to be informed, in an informal manner consistent with the circumstances and public safety, of the allegations against him or her and entitled to an opportunity to make an informal explanation.  The student is protected from arbitrary actions of the school administrators because school attendance and reputation are both substantial civil rights implicated in a suspension.  The due process entitlements do not include the right to a formal hearing or a right to counsel.