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Monthly Archives: February 2007

R.I. Lawmaker Targets Hospital Errors

Between 44,000 and 98,000 patients die each year in U.S. hospitals because of mistakes, infections and other adverse situations. That’s more deaths than those caused by breast cancer, AIDS or car accidents.

Most of those deaths are avoidable, acoording to Rhode Island Sen. Charles J. Levesque (D-Dist. 11, Portsmouth, Bristol), who has introduced legislation aimed at reducing their occurrences in hospitals in his state.

Senator Levesque’s “Patient Safety and Medical Error Reduction Act” (2007-S 0650) would require all hospitals in Rhode Island to participate in a program to increase patient safety by reducing medical errors.

Most of the hospitals in Rhode Island are among the 3,000 hospitals nationwide already participating voluntarily in a campaign run by the Institute for Healthcare Improvement to reduce medical errors, infections and other mishaps.

Their voluntary participation is excellent, said Senator Levesque, but he would like to see them all taking part.

“Everybody involved in the health care system wants patients to be safe and to receive proper care when they’re in the hospital. I’m sure we can all agree that all hospitals in Rhode Island should be doing everything they can to reduce mistakes, hospital-acquired infections and medication errors so every patient can leave the hospital healthier than when he or she arrived,” said Levesque.

The act specifically lists two national organizations – the National Quality Forum and the Institute for Healthcare Improvement – that have developed programs to help reduce medical errors, but hospitals would be allowed to use other programs as long as they are approved by the Department of Health. Each hospital would be required to report their progress in improving patient safety.

The act would also link hospitals’ performance in terms of patient safety to funding by allowing the Department of Human Services to use it to determine their reimbursement rates.

Common ways hospitals can increase patient safety include standardizing safety, communication and sterilization procedures. Computerizing patient information to the greatest extent possible is also a way to reduce the possibility of human error.

According to a 1999 Institute of Medicine report, To Err is Human, costs of preventable “adverse events” in hospitals are estimated to be between $17 billion and $29 billion every year.

“Mistakes in hospitals hurt everyone. They tarnish the health care industry, they cost everyone money in the form of higher health care and insurance costs, and worst of all, they cost lives. I commend the hospitals in Rhode Island that are already taking the initiative to reduce errors and infections, and I hope this legislation formalizes this process and ensures every hospital’s full compliance,” said Senator Levesque.

Supreme Court throws out punitive damage award

Splitting 5-4, the U.S. Supreme Court on Tuesday threw out a nearly $80 million punitive damages ruling against Philip Morris. In this state negligence and deceit lawsuit, a jury found that Jesse Williams’ death was caused by smoking and that petitioner Philip Morris, which manufactured the cigarettes he favored, knowingly and falsely led him to believe that smoking was safe. In respect to deceit, it awarded $821,000 in compensatory damages and $79.5 million in punitive damages to respondent, the personal representative of Williams’ estate. The trial court reduced the latter award, but it was restored by the Oregon Court of Appeals. The State Supreme Court rejected Philip Morris’ arguments that the trial court should have instructed the jury that it could not punish Philip Morris for injury to persons not before the court, and that the roughly 100-to-1 ratio the $79.5 million award bore to the compensatory damages amount indicated a “grossly excessive” punitive award.

The case, Philip Morris USA v. Williams, tested the power of juries to impose large punitive awards against tobacco and other well-heeled corporations in product-liability cases.

In their ruling, the justices decided to follow recent precedent that punitive damages should, in most cases, match “actual” damages. The Supreme Court ruled that a punitive damages award based in part on a jury’s desire to punish a defendant for harming nonparties amounts to a taking of property from the defendant without due process. It also ruled that because the Oregon Supreme Court’s application of the correct standard may lead to a new trial, or a change in the level of the punitive damages award, this Court will not consider the question whether the award is constitutionally “grossly excessive.”

In a dissenting opinion, several of the Justices took issue with the Court’s ruling, stating:

The purpose of punitive damages, it can hardly be denied, is not to compensate, but to punish. Punish for what? Not for harm actually caused “strangers to the litigation,” ante, at 5, the Court states, but for the reprehensibility of defendant’s conduct, ante, at 7–8. “[C]onduct that risks harm to many,” the Court observes, “is likely more reprehensible than conduct that risks harm to only a few.” Ante, at 9. The Court thus conveys that, when punitive damages are at issue, a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties. Ante, at 7–9. The Oregon courts did not rule otherwise. They have endeavored to follow our decisions, most recently in BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996) , and State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003) , and have “deprive[d] [no jury] of proper legal guidance,” ante, at 7. Vacation of the Oregon Supreme Court’s judgment, I am convinced, is unwarranted.

You can view the full text of the Supreme Court’s opinion by clicking here.

Auto insurers play hardball in minor-crash claims

If you are injured in a minor car crash, chances are good that you will be in the fight of your life to get the insurance company to pay all the medical costs you incur — even if the accident was no fault of your own. That is the finding from an 18 month investigation conducted by CNN on so-called minor-impact soft-tissue injury crashes around the country. Those are accidents in which there is little damage to the vehicle and the injuries to people are not easy to see by the naked eye or conventional medical tools like X-rays.

According to documents obtained by CNN, the strategy was developed in the mid-1990s with the assistance of consulting giant McKinsey & Co. Looking for a way to boost profits, McKinsey focused on soft-tissue injuries incurred in minor crashes. Playing off Allstate’s signature slogan, one document recommends the insurer put boxing gloves on its “good hands” for those who insist on going to court. The McKinsey work was the subject of a May 2006 BusinessWeek article. Entitled In Tough Hands at Allstate, the article highlights a new book by plaintiff’s lawyer David Berardinelli of Sante Fe, New Mexico. In the book, From Good Hands to Boxing Gloves, Berardinelli tells the story of the key role played by management consultant McKinsey & Co. in reengineering auto insurance claims operations at Allstate Corp. — and it’s a story Allstate doesn’t want told.

The strategy, according to former Allstate and State Farm employee Jim Mathis, relies on the three D’s — denying a claim, delaying settlement of the claim and defending against the claim in court.

The premise underlying the three D defense is seriously flawed. That is, it is widely acknowledged in medical practice, that a person’s injuries are not correlated to the amount of damage to their vehicle.

The amount of damage sustained by the car bears little relationship to the force applied. To take an extreme example: If the car was stuck in concrete, the damage sustained might be very great but the occupants would not be injured because the car could not move forward, whereas, on ice, the damage to the car could be slight but the injuries sustained might be severe because of the rapid acceleration permitted.

MacNabb, I., “Acceleration Extension Injuries of the Cervical Spine,” Journal Bone/Joint Surgery, 46:A 1797-1799 (1964). In light of the fact that the scientific literature has stated there is no connection between property damage and extent of injuries, it is improper for insurers use photographs of property damage to argue that there is a connection, knowing the opposite to be true.

Because much of the science and literature surrounding the determination of injuries in low-impact collisions has only been around a few years, courts around the country are just now wrestling with the issues presented by misleading and unsupported property damage evidence. Many courts that have addressed this issue have found that such evidence is not admissible when it is not accompanied by supporting expert testimony to establish an adequate foundation. For example:

Davis v. Maute, 770 A.2d 36 (Del. 2001) (reversible error to admit evidence of property damage and allow counsel to argue serious injuries could not have resulted from a minor collision);

Hastie v. Dohar, 2002 Ohio App. LEXIS 808 (Ohio Ct. App. B 8th Dist. 2002) (finding trial court’s action proper in excluding photographs of property damage as well as argument correlating property damage and injury);

Sloan v. Clemmons, 2001 Del. Super. LEXIS 535 (Del. Super. 2001) (court excluded evidence of amount and extent of property damage, any evidence or argument correlating damage to injury, any evidence regarding force of impact or speed at impact, but allowed testimony of mechanisms of injury by expert witnesses);

Hovis v. Hughes, 2001 Del. Super. LEXIS 534 (Del. Super. 2001) (excluding evidence of property damage but allowing expert testimony about force of impact causing injuries);

The Davis court correctly found:

As a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue. Absent such testimony, any inference by the jury that minimal damage to the Plaintiff’s car translates into minimal personal injuries to the Plaintiff would necessarily amount to unguided speculation.

Davis, 770 A.2d at 42.

Until more courts come down on the three D’s, consumers will continue to be victimized in auto crashes.

Lawsuits aid policy making

When the sexual abuse crisis rocked the Catholic Church, the news media received well-deserved recognition for their part in exposing the abuse and focusing attention on the need for institutional reform. In fact, the Boston Globe received a Pulitzer Prize for its coverage of the scandal. The Pulitzer citation praised the Globe for its “courageous, comprehensive coverage of sexual abuse by priests, an effort that pierced secrecy stirred local, national, and international reaction and produced changes in the Roman Catholic Church.” In all of the accolades, however, little attention has been paid to the underlying role played by lawsuits.

The tort system is more often maligned than celebrated, but it was the work of plaintiffs’ lawyers that brought the scandal to light in the first place. Pleadings, discovery documents, and depositions in hundreds of cases during the course of more than two decades have provided most of the information underlying media coverage of the scandal. Indeed, it was lawsuits that first publicly pointed a finger at church officials and focused attention on the need for institutional reform.

A piece which appeared in the Boston Globe on Sunday, February 4, 2007 highlighted the fact that plaintiffs’ lawyers were the unsung heroes in the controversy. The author of the piece, Timothy D. Lytton, is a professor of law at Albany Law School and author of the forthcoming “Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse” (Harvard University Press). As he noted in his Globe article: “clergy sexual abuse litigation has had an especially powerful impact on policy making, drawing attention to the role of church officials and placing the issue on the agendas of church and government policy makers. Tort reform advocates — pointing to what they call unjustified costs to business and society — argue that tort litigation is an ineffective and illegitimate way to influence policy making. The story of how lawyers brought clergy sexual abuse to light and prompted the Catholic Church to change its ways suggests otherwise.”