This'n'That; December 1st[TortReform;obamaCare]

Two definitions: Tort reform refers to proposed changes in the civil justice system that would reduce tort litigation or damages. Tort is a system for compensating wrongs and harm done by one party to another's person, property or other protected interests (e.g. reputation, under libel and slander laws). Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice. A recent study by Healthgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors.

• Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October 2003.
• The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic.
• Some researchers questioned the accuracy of the study, reporting both significant subjectivity in determining which deaths were "avoidable" or due to medical error and an erroneous assumption that 100% of patients would have survived if optimal care had been provided.
• A 2001 study in JAMA estimated that only 1 in 10,000 patients admitted to the hospital would have lived for 3 months or more had "optimal" care been provided.

A 2006 follow-up to the 1999 Institute of Medicine study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year.

• 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates.
• In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million – and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs. Most (73%) settled malpractice claims involve medical error.
• A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error "are not uncommon, but most [72%] are denied compensation.
• The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant."

Physicians examined the records of 1452 closed malpractice claims.

• Ninety-seven percent were associated with injury; of them, 73% got compensation.
• Three percent of the claims were not associated with injuries; of them, 16% got compensation.
• 63% were associated with errors; of them, 73% got compensation (average $521,560).
• Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205).
• Claims not associated with errors accounted for 13 to 16% percent of the total costs.

For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs. Prior to 1975, the State of California experienced astronomical increases in malpractice tort expense as well as malpractice insurance expense. Then, along comes MICRA!! When it is impossible to sue the HMO directly, as when it is protected by ERISA, it may be possible to sue a negligent treating doctor for medical malpractice, and hold the HMO vicariously liable for the doctor's actions. The Medical Injury Compensation Reform Act of 1975 (MICRA) limits damages recoverable in medical malpractice suits as follows: $250,000 cap on non-economic damages CC sec. 3333.2 says that in any action against a health care provider for professional negligence, non-economic damages, eg: for pain and suffering, may not exceed $250,000. This may make it hard to get a lawyer interested in the case. Collateral Source Rule abrogated In most tort cases the common law "Collateral Source Rule", makes it reversible error for the defendant to tell the jury how much of your damages have been paid by someone else, eg: an insurer, family member, etc. However, CC sec. 3333.1 lets them tell the jury in MedMal cases, encouraging the jury to cut your recovery by that amount. Installment Payments CCP sec. 667.6 allows future damages over $50,000 to be paid in installments instead of a lump sum, with the payments to stop if the plaintiff dies. This is a disadvantage to the plaintiff and his family, as the annuity is much cheaper than the lump-sum would be. Punitive Damages The initial complaint cannot ask for punitive damages. Under CCP sec. 425.13, a separate motion must be made at the earlier of 2 years after filing or 9 months before the first scheduled trial date, showing a substantial probability that you'll prevail. Other ways MICRA attempts to inhibit Malpractice suits:

• 90 day notice before filing suit.
• Statute of Limitations. Suit must be filed within one year from the discovery of an injury and within three years from injury.
• Limits on lawyers contingency fees:

1st $50K: 40% next $50K: 33.33 % next $500K: 25% everything over $600K: 15%

In the non-medical arena, I found these lawsuits in an advertising email from LegalZoom [ www.legalzoom.com ]. After reading these, I find it difficult to understand why federal and state legislators never consider tort reform. ****I forgot, 95% of legislators ..............ARE LAWYERS!!!****

• 5. A Grilled Chicken Blunder You never know what will result from the promise of free food. At least until you don't come through with said promised food. When Oprah and Kentucky Fried Chicken partnered to give Americans some free grilled chicken and ran out, more than a few feathers were ruffled. People were hungry and angry. For full disclosure, I was actually one of them. I blogged about it, then let it go. However, some took their displeasure to a higher level. James Asanuma and Veronica Mora filed suit against KFC. According to an article in the Los Angeles Times, "[T]he complaint accuses KFC of false advertising, fraud and unfair business practices" and using the promotion to get customers to spend money when they had not planned to. The original lawsuit was in Los Angeles Superior Court, but it's been removed to Federal court and could be gearing up for class action status.
• 4. A Really Bitter Divorce It's no surprise to most of us, that despite the "until death do us part" pledge, many marriages end in divorce. However, it is rather surprising when a husband who gave his wife a kidney asks for it back or its monetary equivalent. Especially when the husband is a surgeon. That's what happened to the Batistas, according to an article on newsday.com. In 2001, Dr. Richard Batista freely gave his wife a kidney. His wife, Dawnell, a nurse, filed for divorce in 2005. And in 2009, her ex-husband changed his mind about the freely given part as it related to his kidney. The Newsday story indicates that Dr. Batista is facing an uphill battle. "Arthur Caplan of the University of Pennsylvania's Center for Bioethics said the likelihood of Batista getting either his kidney or cash was 'somewhere between impossible and completely impossible.'"
• 3. Lawsuits 101 Many people consider it an honor to be listed in the Guinness Book of World Records. But not Jonathan Lee Riches, aka Irving Picard. According to Abcnews.com, he was about to be listed as the most litigious man in the world. Riches, who is currently serving a sentence in federal prison in Kentucky for wire fraud, has filed thousands of lawsuits. Riches didn't like the prospect, so, unsurprisingly, he sued Guinness to keep from listing his name. According to the article, Riches is scheduled to be released in March 2012, but could be released into a halfway house as soon as the summer of 2010. And what are his plans upon release? "I'm going to start a lawsuit 101 shop and teach Americans how to file (pro se) lawsuits." He also plans to sell T-shirts that say "Watch what you do or I'll sue you."
• 2. Disney's Tower of Terror Not everyone likes amusement park rides, but according to Central Florida News 13, Denise Mooty needs them. And not just any amusement park ride, but specifically Disney World's Tower of Terror. Mooty apparently suffers from a very painful condition caused by abdominal adhesions. Somehow she has found that this particular ride is the one thing that alleviates her suffering. Her doctor agrees that the way the ride drops, causes the scar tissue to break up and allow her to move more freely. Mooty purchased an annual pass to Disney, so that she could use the ride repeatedly. She alleged that Disney employees detained her and would not let her use the ride as needed. Mooty sued Disney for Breach of Contract, Intentional Infliction of Emotional Distress, and False Arrest.
• 1. Hallmark v. Hilton - How Hot? The number one spot may make you shake your head, laugh, and maybe even walk away puzzled at the same time. It's about Paris Hilton and a birthday card. An article on The Business Insider, states that apparently Hallmark was intrigued by Hilton's (literally) trademarked phrase "that's hot" and used it along with an image of her - both without her permission. In a recent Opinion, the Court stated "We must decide whether California law allows a celebrity to sue a greeting card company for using her image and catchphrase in a birthday card without her permission." Well, that panel of 9th Circuit Judges decided that Hilton's lawsuit against Hallmark can go forward. So if you thought that you would not hear about Paris Hilton in the New Year, sadly, you will have to think again.

In essence, SOME lawsuits are necessary, be they to secure future financial support or to curtail hazardous activity, products. What must be reformed is the monetary awards, thereto. Like so many product liability suits we've seen in the tobacco industry, most torts are awarded seemingly astronomical monies for a death or dismemberment or disability. Even if I were the plantiff, I see no earthly reason why one should be awarded multi-millions in a death case; it won't bring the deceased back, nor will it result in the perpetrator getting "his pee-pee whacked" financially!! Take the Ford Rollover Case: It wasn't even filed by those who may have been injured or suffered a financial loss due to a vehicle rollover!!

A California judge approved the settlement of a class-action lawsuit that will compensate about 800,000 Ford Explorer owners whose vehicles lost value because of a perceived rollover danger. This rollover litigation wasn’t filed by people who were physically injured in accidents due to the Explorer’s alleged propensity to rollover, but people who claimed the resale values of their Explorers were hurt by news of the rollover problems and high-profile accidents. The settlement ends lawsuits against Ford Motor Co. in California, Connecticut, Illinois and Texas. Those lawsuits claimed that Explorers lost about $1,000 in resale value because of publicity stemming from a series of rollover accidents involving the SUV. The class action over the loss in value is separate from the numerous death and personal-injury lawsuits involving earlier models of the Explorer that continue across the country.

• Under the settlement, those who bought Explorers in model years 1991 through 2001 are eligible for $500 vouchers to buy new Explorers or $300 vouchers to buy other Ford or Lincoln Mercury vehicles.
• Consumer groups and some plaintiffs objected to the settlement. They said few owners will be able to take advantage of the vouchers, in part because of the poor economy and high gas prices.
• They also were upset the plaintiffs' attorneys will receive as much as $25 million in fees and costs.
• "They get $25 million. All I get is this lousy coupon that I'm not going to use. It's valueless to me," said plaintiff Stephen Webber of Glendale, Ca., who owns a 1993 Explorer.

The cruix of all this is....... the "Clown Prince's" obamaCare is all about control, practically nothing about health care expenses. If Fluffy obama had the public's finances at heart, he would have promoted both tort reform and health care insurance reform!! In the aforementioned "Ford case," the total award was $28Million..... the lawyers got 89.3% of the total!! In the aforementioned health care issues, tort reform would mathematically reduce the nationwide expense, simply by "removing pigs from the trough!!" Insurance reform will reduce an individual's annual care expense, initially by allowing the consumer to shop his coverage across state lines!! With health insurance treated like auto insurance, one could choose comparable coverage with the lowest premium without regard to which state it was offered in!!

Does the public realize that--if obamaCare becomes law as written--EVERYTHING in EVERY walk of life can be deemed as affecting one's health, thus be regulated and/or taxed by the government:

• The car you drive: If you drive a gas-guzzlin' SUV, MORE TAXES; the vehicle is hazardous to the public health.
• The food you eat: If you eat at McDonald's or another "greasy spoon," MORE TAXES; all the fat and carbs are a health hazard.
• The house you live in: If it's a colonial, MORE TAXES; the stairs are a prime location for accidental falls.
• The apartment you live in: The elevators you use to get to the 17th floor, MORE TAXES; using elevators require less activity than using stairs-even though stairs are more hazardous.
• The job you have: If it's high-paying, MORE TAXES; taxes over and above those on the income-with high bonuses or salaries, you're taking money away from those who really need it [read: welfareRATs!!].
• The movies you see: If you like those Psy-Fi thrillers, MORE TAXES; they raise the heart rate and blood pressure to high levels, increasing momentary stress-thus may bring on heart attacks.
• The movies you see: If you like those action-dramas, MORE TAXES; that genre will likely cause the viewer to be more aggressive-putting the public at risk.

See how this works-there's NOTHING that can not be regulated under the guise of "health care!!!"

Til Nex'Time....