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Monthly Archives: June 2009

Supreme Court will only clarify school rules

Don’t look to the Supreme Court to set school rules, only to clarify them when officials have abdicated that responsibility, Chief Justice John Roberts said Saturday according to an AP report (you can view the full report by clicking here).

At a judicial conference, Roberts was asked how school administrators should interpret seemingly conflicting messages from the Court in two recent decisions, including one last week that said Arizona officials conducted an unconstitutional strip-search of a teenage girl. You can view our blog post on that decision by clicking here. In 2007, the justices sided with an Alaska high school principal, ruling that administrators could restrict student speech if it appears to advocate illegal drug use. You can view our blog post on that decision by clicking here. The court’s full decision in the free speech case can be viewed by clicking here.

According to the AP report, Roberts told the audience there was no conflict in the court’s rulings, just clarity intended to deal with narrow issues that surface from government actions. “You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad,” Roberts said. “We wouldn’t do a good job at it.”

You can be the judge of the clarity that emerges from these decisions. From my perspective, the 8-1 decision in the strip search case provided reasonable clarity and was a sound decision based on constitutional principles. The 2007 free speech case, on the other hand, was far less clear and was somewhat disturbing in terms of the curbs on free speech that were articulated. The First Amendment says quite clearly that “Congress shall make no law… abridging the freedom of speech, or of the press….” (emphasis supplied). But the Court’s 2007 decision says that you can have some laws abridging speech when that speech is reasonably viewed as promoting illegal drug use.

Student strip search ruled unconstitutional

In a surprising victory for student’s rights, the United States Supreme Court today issued an opinion ruling that the strip search of a 13-year-old middle school student Savana Redding was unconstitutional. You can view our previous posts on this case by clicking here and here. This is a very good ruling for student’s rights and upholds the principle that their rights do not end at the schoolhouse door. It further provides clarity to school district in just how far they can reasonably go in an effort to make their free of drugs.

The opinion was authored by retiring Justice David Souter, perhaps one of his last opinions as a Justice. You can find a complete copy of the opinion by clicking here.

The Court ruled 8-1 in favor of the student, finding that the mere suspicion of finding a small quantity of ibuprofen was unreasonable and did not justify the search in her underwear. In so finding, the court determined that the content of the suspicion failed to match the degree of intrusion to the student. As the Court ruled: “What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.”

The Court went on to describe the embarrassment and humiliation suffered by the student because of the search.

Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure.

The Court made it clear that searches of this nature require “the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.”

Only Justice Clarence Thomas voted with the school in the case. Justice Thomas continued his consistent opposition to such individual rights, particularly when invoked by students. In one line, he wrote “[p]reservation of order, discipline and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a constitutional imperative.”

End malpractice, not patient’s right to recovery

Earlier this week, President Obama outlined his healthcare reform plans in a speech to the AMA in Chicago. Part of the discussion is said to include more tort reform. A New York Times report says President Obama has been working behind the scenes to protect doctors from malpractice lawsuits. And former Senate majority leader Tom Daschle told the Early Show on Monday that “Tort reform is going to be on the table,” adding that there is “a clear understanding” that health costs are out of control.

This continuing effort to blame lawsuits for spiraling health costs is puzzling and unwarranted (see our latest post on this topic by clicking here). Why isn’t the President focusing his efforts on curbing negligent treatment of patients? Wouldn’t safer practices eliminate lawsuits and lower premiums? Let’s shift the focus.

As Anne Woolner writes in a column in Bloomberg News): “When President Barack Obama says he wants to keep down the cost of medical malpractice premiums and improve patient care, one place to start is with doctors ensnared in multiple malpractice cases, hospitals that keep hiring such doctors and state medical boards that rarely lift a license.” If hospitals, “state medical boards and federal and state lawmakers became more vigilant and less forgiving, surely the needless maiming and killing of patients and the mammoth awards those cases bring would shrink.”

Bankruptcies could leave injured consumers out in the cold

With bankruptcy proceedings for Chrysler and GM advancing quickly, consumer groups have worked hard to ensure that Americans harmed by defective vehicles are not left out of the process. Unfortunately, Chrysler’s sale to Fiat included language relieving the Italian company from liability claims on vehicles made before the sale. The current GM bankruptcy plan could include similar liability immunity.

Last week, victims of defective vehicles went to Washington, DC to urge Congress to consider their plight while deciding the future of these corporations. Several stories ran in local and national news. You can see them on the American Association for Justice’s Dangerous and Defective Products page by clicking here.

What this means for consumers is simply that if a car owner who bought a vehicle before the company reorganization sustained injuries because of faulty brakes, Chrysler would pay for the brakes but not the medical cost of treating the injuries.

Currently, Chrysler would emerge from the controlled bankruptcy “tort free.” It would gain blanket immunity from any and all defects on millions of vehicles sold in the past several years. Those defects include seatbelts that don’t work, seat backs that collapse, vehicles that are unstable and flip over too readily, roofs that cave in, and gasoline tanks that are improperly positioned and are prone to catching fire.

You can see a number of stories about a number of consumers who would be adversely affected by clicking here.

Medical malpractice claims declining in two states

Consumer advocates say medical malpractice payouts in New York have dropped the past two years, and they are urging state officials to investigate physician complaints about rising insurance rates and automatically review doctors who make multiple malpractice payments. The study by the New York Public Interest Research Group found that “the amount of money paid for malpractice claims in New York has actually fallen in recent years, and that the number of overall claims has remained ‘remarkably stable.'”

In a blog on the New York Times website Jeremy Peters wrote, “For years, as hospitals have fought to protect the money they receive from the state, health care lobbyists have argued that the exceedingly high cost of medical malpractice insurance was a result of a runaway legal system that allowed juries to award huge judgments to victims of doctors’ mistakes.” However, “a new report from an independent government watchdog group suggests that those claims are exaggerated.” You can find more on this story by clicking here.

Meanwhile, in Arizona, victims of medical malpractice are having trouble trying to find a lawyer to pursue a claim on their behalf. As reported in the Arizona Star Daily, attorneys are becoming increasingly choosy when it comes to filing medical malpractice lawsuits — largely because doctors and hospitals usually win when the cases go to court. That has resulted in a decline in malpractice filings in that state. Ten years ago, 171 medical-malpractice suits were filed in Pima County. Last year the number fell to 65, a decline of 62 percent. In Maricopa County, malpractice suits dropped 44 percent.