Archive for December, 2007
Monday, December 17th, 2007
Bills are being floated in Washington D.C. to address the growing disparity between consumers and businesses because of
mandatory arbitration clauses which prevent consumers from taking disputes to a court of law.
At issue is the fine print in many contracts for goods and services, such as credit cards and cellphones, requiring that disputes be submitted to arbitration by a third party. Critics of the provisions say they deny consumers and employees a basic American principle: the right to go to court.”People from all walks of life — employees, investors, homeowners, those enrolled in HMOs, credit card holders and other consumers — often find themselves strong-armed into mandatory arbitration agreements,” said Sen. Russell D. Feingold (D-Wis.), who is sponsoring one of the measures aimed at making arbitration voluntary rather than mandatory.
Many lawmakers say mandatory arbitration has tipped the playing field in favor of businesses. Public Citizen, a Washington-based consumer watchdog group, reported that consumers won 4% of 19,000 California cases decided by one arbitration firm between January 2003 and March 2007. The study found one arbitrator who rendered 68 decisions in one day — “one every eight minutes,” said Laura MacCleery, director of the consumer advocacy group Public Citizen’s Congress Watch. “Consumers won zero.”
During a hearing Wednesday on Feingold’s bill, Sen. Sam Brownback (R-Kan.) said, “The fact of the matter is that the little guy is, by and large, better off in arbitration than trying to get to court. Arbitration is cheaper than litigation, and it leads to faster results for plaintiffs.”
Whoa there, Senator. You’re either wilfully ignorant, woefully misinformed, or just flat-out being dishonest with that statement.
Tags: mandatory arbitration
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Monday, December 17th, 2007
Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals (that’s the highest court in the state for criminal matters), has been named in a wrongful death lawsuit brought by the widow of Michael Wayne Richard. Richard was executed by the state on September 25th, after his lawyers tried unsuccessfully to file a last-minute appeal.
Keller contends that while she ordered the clerk’s office closed promptly at 5 p.m., state law clearly gave attorneys for death row inmate Michael Wayne Richard the power to contact judges on the court directly.
In papers filed in U.S. district court in Austin, Keller said Richard’s lawyers made no attempt to contact any judges on the court, even though three were available Sept. 25, the date of Richard’s execution in 1986 rape and murder of Marguerite Dixon, a Houston-area mother of seven. Keller said the clerk’s office was closed but the court’s building remained open.
Keller has garnered national attention for refusing to extend the court’s closing time prior to Richard’s execution, despite calls from Richard’s attorneys alerting her office they were experiencing computer problems and begging for extra time.
But in a motion to dismiss the suit, Keller said Texas law “provides a clear and unambiguous avenue for litigants to file documents with the (Court of Criminal Appeals) directly through any of its judges, so Richard did not need the CCA clerk’s office to stay open after hours to file his motion.” This is the first time Keller has claimed Richard’s lawyers could have directly gone to other judges on the court. She previously has tried to shift blame to Richard’s lawyers by saying they had all day to file.
Jim Harrington, director of the Texas Civil Rights Project, called Keller’s argument “shameless” and said “The rules of procedure in the law are supposed to serve justice and here you have a case where a guy’s life is at stake. It’s literally a matter of life or death and to fall back on some off-the-wall assertion, ‘go find a judge and file it that way’ is absurd. It makes a farce of the law.”
Story here.
Tags: lawyer, texas, wrongful death
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Monday, December 17th, 2007
Back in 2003, when the Texas Legislature bent over for the insurance lobby and capped damages on suits brought by victims of medical negligence, the justification for selling off our rights was typically some variant of a “crisis” facing doctors…too many “frivolous suits,” too many “runaway juries,” too high insurance premiums, too many doctors fleeing the state, etc., etc.
One of the solutions proposed by consumer groups back then was, sensibly, insurance reform. That is, the Legislature should take steps to rein in the insurers, or subsidize premiums for doctors in high-risk specialties or underserved areas, etc. Makes sense. But the insurers and the aligned big money interests wanted no part of that…don’t mess with the invisible hand of the free market, they said, despite the fact that they were charging more for less coverage in order to make up for bad business decisions made along the way (losses in the stock market, poor management, and so forth). So now we have Draconian damage caps and other hurdles affecting consumers but nothing to reform or stabilize the insurance market. Nada. Zip.
Apparently the same “crisis” was hyped in Maryland several years ago, when that state’s legislature contemplated ways to save their doctors. The state implemented a subsidy paid to the insurers to help the docs manage the higher premiums, the same proposal that went over like a lead balloon here in Texas.
The
Washington Post reports that Gov.
Martin O’Malley (D) now has concerns that his predecessor, Gov.
Robert L. Ehrlich, Jr. (R), might have exaggerated the economic hardship facing doctors when he called the General Assembly into emergency session in 2004 to fix what he called a malpractice “crisis.” In the midst of a downward economic cycle for the insurers, a “crisis” was fabricated in order to ram “reform” through the statehouse.
Sounds oddly familiar. Unfortunately for Texans, it won’t be so easy to repair the damage done to our rights. Getting legislators on board to repeal subsidies to insurance companies is a no-brainer; getting them on board to restore patients’ rights at the courthouse is another matter entirely.
Tags: doctors, insurance, texas
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Wednesday, December 12th, 2007
WATERBURY, Conn. - Attorneys say the family of a Madison teen killed nearly six years ago in a car accident is to receive an $18.3 million settlement. Seventeen-year-old Tim Orefice was killed in Guilford on Jan. 25, 2002. The teen’s car was hit by a Guilford Texaco tow truck driven by Jason Secondino. Secondino, Guilford Texaco, and the company which leased the truck to Guilford Texaco, were all sued in the case that went to trial in October at Waterbury Superior Court. A lawyer says the settlement was reached on the day before closing arguments. An attorney for the family says the award came years after the Orefice family proposed a $1 million settlement that the defendants refused.
Obviously, that jury must have seen some baaaaad evidence and the plaintiff’s lawyers were ready to put on a whale of a closing argument. Wonder if it was the defendants or their insurance company who decided to refuse the earlier offer?
Tags: car wreck, Jury, lawyer
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Tuesday, December 11th, 2007
Interesting. President Bush endorses Texas Supreme Court Justice Don Willett by saying “he is a proven conservative who understands courts should interpret and apply law, not legislate from the bench.” Yet Justice Willett authors a recent opinion - joined by the other eight justices - that “offends not only the law, but also court precedent, legislative intent, reason, custom and common notions of justice” in order to side with big business. As the Houston Chronicle points out, this ruling “makes the justices guilty of blatant judicial activism, which many conservatives regard as an unpardonable sin.”
Guess it depends on whose interests one is protecting…
Tags: judicial activism, texas
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Thursday, December 6th, 2007
Actor Dennis Quaid and his wife sued the makers of heparin Tuesday after their newborn twins were inadvertently given massive doses of the blood thinner at a hospital. The product liability lawsuit, filed in Chicago, seeks more than $50,000 in damages. It claims that Baxter Healthcare Corp., based in Deerfield, Ill., was negligent in packaging different doses of the product in similar vials with blue backgrounds. The lawsuit also says the company should have recalled the large-dosage vials after overdoses killed three children at an Indianapolis hospital last year.
The Quaids’ children, Thomas Boone and Zoe Grace, and a third patient were at Cedars-Sinai Medical Center on Nov. 18 when they were mistakenly given vials of heparin that were 1,000 times stronger than the usual dosage.
Cedars-Sinai said Tuesday the mistake occurred when two pharmacy technicians failed to verify the vials’ concentration before placing them in the pediatrics unit where the lower-concentration heparin is kept. The nurses who administered the drug also failed to check the dosage, the hospital said in a news release.
Tags: Product Liability
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Thursday, December 6th, 2007
Women, children, the elderly, minorities and those who are less-affluent, according to a study done by two professors at Emory University. Here is the abstract to the article:
“Tort reform may not affect all segments of society equally. Studies have shown that many tort reforms disproportionately reduce compensation to women, children, the elderly, disadvantaged minorities, and less affluent people. This study goes beyond tort reform’s disproportionate effect on compensation, to explore whether tort reform also has a disproportionate effect on accidental death rates. We explain that, theoretically, tort reform’s care-level effects and activity-level effects may disproportionately impact the accident rates of different groups. Using the most accurate, comprehensive data on medical malpractice tort reforms and state-level data from 1980-2000, we examine empirically whether tort reforms indeed have such a disproportionate effect. The results from our empirical analysis are consistent with our theoretical predictions. We find that the impact of tort reform varies substantially among demographic groups. When we consider the net effect of all the reforms in our study together, our results suggest that women, children, and the elderly do not enjoy tort reform’s benefits as much as men and middle-aged people. In fact, they might even be harmed by reform.”
Tags: tort, tort reform
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Tuesday, December 4th, 2007
Good article about the dangers of amusement park rides.
Hey, I’m not opposed to the well-run outfits, but even the most-professionally run parks have had some problems. What really scares me to death are the traveling carnivals that set up in mall parking lots, at county fairs, and such. I worked on a case years ago involving a machine called the “Gravitron” at a state fair. It broke apart and spun kids all over the midway. Seems the carny who assembled the ride had not followed the set-up procedure in the instruction manual…then we learned during his deposition that the carny could not read.
Why such little safety oversight by the government? Follow the money (see the industry’s lobbying efforts described on page 3 of the article).
If you’re interested,
this consumer safety organization deserves a look.
Tags: consumer safety
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