May 11, 2008

Tyrannosaurus Rex Morgan, M.D.

Some of the sharpest commentary lately about the excesses personal injury lawyers has been appearing in the comic strip, Rex Morgan, M.D.

Really.

On the Hill

Two House committee hearings to be aware of this week:

• Committee on the Judiciary, May 14, Subcommittee on
  Commercial and Administrative Laws and the Subcommittee
  on Crime, Terrorism, and Homeland Security,
  joint hearing on Allegations of Selective Prosecution Part
  II: The Erosion of Public Confidence in Our Federal Justice
  System, 2 p.m., 2141 Rayburn.
• Committee on Oversight and Government Reform, May 14,
  hearing on Should FDA Drug and Medical Device Regulation
  Bar State Liability Claims? 10 a.m., 2154 Rayburn

Witnesses aren't listed yet for the Oversight hearing, which we assume will beat up on the Supreme Court's decision in Riegel v. Medtronic. (Earlier PointofLaw post here.) The American Enterprise Institute held a discussion on federal pre-emption issues in February, and transcript and background materials are available here.

May 9, 2008

The Issues Being Lobbied

From the AP: "WASHINGTON -- The American Association for Justice, a trade group representing trial lawyers, spent more than $1.1 million in the first quarter to lobby on medical malpractice liability and other issues, according to a disclosure form. The organization, whose members represent plaintiffs in personal injury, product liability and other tort cases, also lobbied in favor of legislation that would prohibit mandatory binding arbitration clauses in consumer and other contracts." You can read the report here.

Drafting doctors for ER duty

The spokesman for Florida's plaintiff's bar, president Frank Petosa of the Florida Justice Association, is keen on avoiding you-know-what as a remedy for shortages of emergency room doctors, and doesn't mind suggesting coercive steps instead (via RiskProf):

Policymakers should instead focus on real solutions to this problem, even though they may be more politically difficult. These could include addressing reimbursement rates, increasing requirements for doctors to take call as a condition of practice, requiring hospitals to shoulder more responsibility and implementing true medical malpractice insurance reform that requires insurance companies to pass their savings on to Florida's doctors. [emphasis added]

April 28, 2008

Around the Web, April 28

• Supreme Court Justice Antonin Scalia's interview with "60 Minutes" is online at the CBS News website. A 4,200-word story AND video. The major revelation: Scalia's an originalist. NPR's Nina Totenberg also had an interview with Scalia on "Morning Edition" today.
• Business Week celebrates the successes of Tanya Andersen, who has back pain and a quiet voice, "Yet this woman is behind a fierce assault on the music industry and its tactics for combating music piracy on the Internet." Relevance, your editor! Andersen is suing the Recording Industry Association of America for conspiracy, committed while it pursues music pirates. The article in the April 24th issue is entitled, "Does She Look Like a Music Pirate?" The class-action lawsuit is Andersen v. Atlantic, filed in the U.S. District Court, Portland (OR) District.
• In New York, the AP reports: "A federal appeals court on Friday reinstated a lawsuit by credit card holders that claimed some of the nation's biggest banks joined forces to prevent class-action suits...The 2nd U.S. Circuit Court of Appeals in Manhattan said lawyers for the credit card holders might prove the banks agreed to make it harder for individuals to make legal claims by requiring them to go to arbitration.
The case, a class-action antitrust suit, is Ross v. Bank of America N.A. (06-4755-CV), and the court's order is here. The plaintiff's counsel is Merrill G. Davidoff of the Philadelphia firm, Berger & Montague.
• An editorial in the Memphis Commercial Appeal, "Only a baby step": "Supporters of tort reform in Tennessee are touting a measure approved by the General Assembly as a step toward eventual passage of comprehensive legislation that will revolutionize medical malpractice litigation...That's an optimistic assessment that might be borne out in the future, but it's far from a certainty."
• Is Rex Morgan from Tennessee? Anyway, from the Sunday Rex Morgan comic strip, dialogue in a storyline about an outbreak of methicillin-resistant Staphylococcus aureus (MRSA) and a dead boy. That nice Dr. Reed was just served in a malpractice lawsuit. "Dr. Morgan: Isn't Max Mallory one of those lawyers who advertises on TV? June Morgan, R.N: That's right. He's Max the Ax, Legal Warrior."

Update (4 p.m.): The Comics Curmudgeon website notes something we overlooked: Max the Ax can't spell subpoena.

April 27, 2008

Bisphenol A: Chemical Industry Defends Itself, Condemned

The Washington Post gives prominent Page One display Sunday to the ongoing scientic, policy, PR, political and legal disputes over the use of Bisphenol A (BPA) in plastics. It's an archetypical story: Industry under attack for methods, motives -- doesn't care about the public. Congress investigates. From "Studies on Chemical In Plastics Questioned":

Despite more than 100 published studies by government scientists and university laboratories that have raised health concerns about a chemical compound that is central to the multibillion-dollar plastics industry, the Food and Drug Administration has deemed it safe largely because of two studies, both funded by an industry trade group.

The agency says it has relied on research backed by the American Plastics Council because it had input on its design, monitored its progress and reviewed the raw data.

The compound, bisphenol A (BPA), has been linked to breast and prostate cancer, behavioral disorders and reproductive health problems in laboratory animals.

Congressional Democrats are investigating, and here's the basic line of attack:

"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product."

As said, this is a typical story -- although more thorough than many -- with industry as the bad guy, the FDA as the bought-and-paid-for lackeys, and scientists and activists as heroes interested only in the public good.

Missing, though, is an acknowledgement of the trial bar's role in the debate. All signs point to an orchestrated campaign to exaggerate the risks, villify industry, and then...Well..

LOS ANGELES (Reuters) - A California mother sued Nalge Nunc International Corp, claiming the company knew, but downplayed risks, that a toxic substance in its popular Nalgene plastic sports bottles could leach into the bottles' contents and sicken consumers.

The case, filed on Tuesday [April 22], is believed to be the first consumer class action over the use of Bisphenol A, or BPA, in plastic sports bottles since Canada moved to ban baby bottles containing the substance and the U.S. government expressed concern over its safety last week.

P.S. The alleged "politicization of science" is a favorite line of attack these days. Over at Shopfloor.org we took a look at how the Union of Concerned Scientists "entrusted" a Washington Post reporter with a story about Endangered Species Act listings, eventually creating a Washington, D.C., "scandal" that destroyed a public servant's reputation over a policy dispute. The post is "Anatomy of a Beltway Takedown."

April 25, 2008

Around the Web, April 25

• Springfield (Mo.) News-Leader, covering a news conference: "Gov. Matt Blunt is declaring victory in fighting frivolous lawsuits and "runaway personal injury" financial judgments against physicians....Since Blunt got medical malpractice tort reform passed three years ago, total claims against Missouri doctors dropped 61 percent from 2005 to 2006, according to state figures." The AP story is here.

• The Daily Oklahoman reports that tort reform appears to have died in this year's legislative session the sponsor pulls the bill. "Rep. Daniel Sullivan, R-Tulsa, pulled Senate Bill 156 after Republicans joined Democrats to defeat an amendment that would have let voters decide whether to cap contingency fees at 33 percent instead of 50 percent for attorneys in personal injury cases." SB 156 generally tracked the tort reform measure vetoed by Gov. Brad Henry last year. More at The Journal-Record.

• The U.S. Chamber and Institute for Legal Reform publish web columns providing more context on their 2008 Legal Climate survey of the states. Bryan Quigley dissects the shoddy responses of the American Association of Justice: "It seems that the entire set of plaintiffs' lawyer talking points are recycled, tired, and out of step, along with their notion of the actual facts. But we do appreciate the help they bring in drawing attention year after year to our study." And the ILR's Lisa Rickard reminds us all: "Legal Reform is a Constant Process, Not a One-Time Event."

• And your guest blogger makes a point at the NAM blog, Shopfloor.org, about the inconsistency of the New York Times' editorialists over the years. On Thursday, the Times attacked the National Association of Manufacturers for suing to stop new lobbying disclosure provisions: "The law was plainly written to smoke out stealth lobbying organizations, not to protect Washington insiders." Yet in a 1995 editorial on McIntyre v. Ohio Elections Commission, the Times applauded a U.S. Supreme Court ruling that found the First Amendment protected the distribution of anonymous election pamphlets. The NYT: "The Court thus protects unpopular people who might not voice their views if forced to identify themselves." Our point: The First Amendment protects both the lonely pamphleteer AND Washington insiders.

April 19, 2008

"The False Claims Act: A Proper Tool for Enforcing Health Care Quality Standards?"

Brian Stimson (Alston & Bird) has a working paper from WLF (press release) on how prosecutors are using the False Claims Act "as a tool for enforcing compliance with federal health care quality standards". Under something known as the "implied false certification doctrine," accepted by some courts, "implied misrepresentations of statutory, regulatory, and contractual compliance are as actionable as express falsehoods" -- which can have the effect of turning the FCA into a general federal health law barbed with treble-damage provisions as well as per-incident fines, even in cases where patients were not harmed or duplicative or unneeded services billed for.

April 18, 2008

$959,733 for lobbying, $585,134 in campaign contributions

That's what was spent by the trial lawyers in Albany last year, an off year as elections go. Health care and hospital groups spent more -- in excess of $3 million on lobbying, $931,000 on contributions -- but their attention was divided among a variety of policy issues, most prominently those relating to state reimbursement of health care outlays. The Commission on Public Integrity's 2007 annual report is here.

April 11, 2008

Medical no-fault for New York?

Per the New York Sun, whose coverage of these matters runs rings around some of its larger competition, trial-lawyer-allied groups are trying pre-emptively to head off medical no-fault proposals that had been under serious consideration by the administration of departed Gov. Spitzer. No indication just yet of the view Gov. Paterson will take. Bonus extra moment of pawky humor: the Center for Justice and Democracy, a group that would ardently defend any and every $30 million infant-injury award the NYC hospital system might be ordered to pay, repositions itself as being oh, so concerned about the danger of, you guessed it, government budget deficits.