Recent Blog Posts

You Can't Get a DUI on a Bicycle

Phoenix Personal Injury Lawyer — Tue, 17 Apr 2012 23:05:00 GMT

The other day my receptionist asked if a person could be cited for Driving Under the Influence (DUI) while riding a bicycle. The answer is no.

Arizona Revised Statutes 28-1381 make it unlawful for a person to operate a vehicle while under the influence of alcohol or drugs:

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

3. While there is any drug defined in section 13-3401 or its metabolite in the person's body.

4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.

The key word in the statute is “vehicle,” which is defined as “a device in, on or by which a person or property is or may be transported or drawn on a public highway, excluding devices moved by human power or used exclusively on stationary rails or tracks.” ARS 28-101(57).

As the definition of “vehicle” excludes a device “moved by human power,” it is not illegal to operate a bicycle under the influence.

Regardless of whether it is legal, pedaling under the influence could still get you into trouble in other areas, so try not to do it.

2012 Lien Seminar Materials - Balance Billing

Scott I. Palumbo, Esq. — Mon, 23 Jan 2012 17:09:00 GMT

TO: 2012 LIEN SEMINAR PARTICIPANTS

FROM: Scott I. Palumbo, Esq.

SUBJECT: Balance Billing: Who Would Have Thought This Would Be The Easy Part of the Liens Seminar?

DATE: January 27, 2012

I. THE LAW.

A.R.S. § 33-931. Lien of health care provider on damages recovered by injured person receiving services; hospital priority

A. Every individual, partnership, firm, association, corporation or institution or any governmental unit that maintains and operates a health care institution or provides health care services in this state and that has been duly licensed by this state, or any political subdivision or private entity with ambulances operated, licensed or registered pursuant to title 36, chapter 21.1, is entitled to a lien for the care and treatment or transportation of an injured person. The lien shall be for the claimant's customary charges for care and treatment or transportation of an injured person. A lien pursuant to this section extends to all claims of liability or indemnity, except health insurance and underinsured and uninsured motorist coverage as defined in section 20-259.01, for damages accruing to the person to whom the services are rendered, or to that person's legal representative, on account of the injuries that gave rise to the claims and that required the services.

B. If a county maintains, operates or provides health care services, it is entitled to an assignment by operation of law for the care and treatment or transportation of an injured person. The assignment shall be for the claimant's customary charges for care and treatment or transportation of an injured person. An assignment pursuant to this section extends to any claims of liability or indemnity, except health insurance and underinsured and uninsured motorist coverage as defined in section 20-259.01, for damages accruing to the person to whom the services are rendered, or to that person's legal representative, on account of injuries that gave rise to the claims and that required the services.

C. The lien entitlements authorized by subsection A of this section and the assignment authorized by subsection B of this section are applicable to all customary charges by hospitals or ambulances of political subdivisions, but are restricted to customary charges in excess of two hundred fifty dollars by all other providers and privately owned ambulance companies excluding interest and service charges.

D. Liens perfected pursuant to this article by a hospital have priority for payment over all other liens authorized by this article.

A.R.S. § 33-932. Perfecting lien; statement of claim; recording; effect

A. In order to perfect a lien granted by section 33-931, the executive officer, licensed health care provider or agent of a health care provider shall record, before or within thirty days after the patient has received any services relating to the injuries, except a hospital which shall record within thirty days after the patient is discharged, in the office of the recorder in the county in which the health care provider is located a verified statement in writing setting forth all of the following:

1. The name and address of the patient as they appear on the records of the health care provider.

2. The name and location of the health care provider.

3. The name and address of the executive officer or agent of the health care provider, if any.

4. The dates or range of dates of services received by the patient from the health care provider.

5. The amount claimed due for health care.

6. For health care providers other than hospitals or ambulance services, to the best of the claimant's knowledge, the names and addresses of all persons, firms or corporations and their insurance carriers claimed by the injured person or the injured person's representative to be liable for damages arising from the injuries for which the person received health care.

B. The verified statement shall also include the amount claimed due as of the date of recording of the claim or lien and a statement regarding whether the patient's treatment has been terminated or will be continued. Amounts incurred during the continued period are also subject to the lien.

C. The claimant shall also mail, by first class mail within five days after recording the claim or lien, a copy of the claim or lien to the injured person. For health care providers other than hospitals or ambulance services the claimant shall also mail a copy to all persons, firms or corporations and their insurance carriers claimed by the injured person or the injured person's representative to be liable for damages arising from the injuries for which the person received health care. If a health care provider other than a hospital or ambulance service does not record the claim, lien or assignment as provided in this section, the claim, lien or assignment is invalid and may not be enforced by the cause of action provided in section 33-934. If a hospital records such a claim or lien, the recording shall be notice to all persons, firms or corporations liable for damages, whether or not they are named in the claim or lien.

D. A hospital or ambulance service lien that is not recorded within the time prescribed by this section is effective against any settlement or judgment for damages if the lien is recorded thirty days before the settlement is agreed to or the judgment is paid except if the lien is recorded in a county where liens are accessible on the internet, the lien is effective if the lien is accessible on the internet thirty days or more before the settlement is agreed to or the judgment is paid. If the lien is not recorded or is not accessible on the internet as provided in this section, the lien is invalid and may not be enforced by the cause of action provided in section 33-934.

A.R.S. § 33-934. Release of claim by injured person ineffective as to lienholder; action to enforce lien

A. A release of claims on which a lien or assignment is given by section 33-931 or of any judgment on that claim is not valid or effectual against the lien or assignment unless the lienholder or assignee joins in the release or executes a release of the lien or assignment. If any amount has been or is to be collected by the injured person or that person's legal representative from or on account of the person, firm or corporation liable for damages by reason of a judgment, settlement or compromise, the claimant or assignee of the lien or assignment may enforce the lien or assignment by action against the person, firm or corporation that is liable for damages, or against any insurer or other person, firm or corporation that is responsible for paying all or part of the damages.

B. An action pursuant to this section shall be commenced and tried in the county in which the lien or assignment is filed, unless ordered by the court to be removed to another county for cause. The court may allow reasonable attorney fees and disbursements to the prevailing party. The action shall be commenced within two years after the entry of the judgment or the making of the settlement or compromise. In an action to enforce a lien or assignment, the lienholder or assignee may not recover more than the amount of the lien or assignment nor may it recover more against a defendant in the lien action than that defendant is obligated to pay under judgment or settlement. The defendant in the lien or assignment action cannot raise as a defense in that action that it is not liable for the amount it is obligated to pay under the judgment or settlement except that it may dispute the amount of the lien on the grounds that the charges giving rise to the lien are erroneous or exceed the customary charges, or that the care, treatment or transportation giving rise to the charges was not medically necessary or causally related to the event giving rise to the claim to which the lien or assignment extends.

C. This section does not create any rights or causes of action on behalf of the lienholder other than are provided for in this section.

A.R.S. § 33-935. Workers' compensation cases exempted

The provisions of this article are not applicable to accidents or injuries within the purview of the workers' compensation law of this state.

A.R.S. § 33-936. Release of hospital lien; liability

If any lien or assignment established by this article has been satisfied, within thirty days after satisfaction the lienholder or assignee shall issue a release of the lien or assignment to the person against whom the lien or assignment was claimed. The release shall be a document in a form as specified in section 11-480. A lienholder or assignee that fails to grant a release is subject to liability in the amount of one hundred dollars and also to liability for actual damages.

• To be enforceable, healthcare provider liens must be perfected pursuant to A.R.S. § 33-932. A.R.S. § 33-932 (“If the lien is not recorded or is not accessible on the internet as provided in this section, the lien is invalid and may not be enforced by the cause of action provided in section 33-934”); Blankenbaker v. Jonovich, 205 Ariz. 383, 71 P.3d 910 (2003).

• A.R.S. § 33-931(A) limits the amount of a healthcare provider lien to the medical provider’s “customary charges” for the medical treatment. While this term is not defined in the statute, Arizona courts have concluded that “customary charges” are not the same as “billed charges” where a healthcare provider customarily accepts lesser amounts. LaBombard v. Samaritan Health System, 195 Ariz. 543, 991 P.2d 246 (App. 1998). In addition, pursuant to the equitable “common fund” doctrine, healthcare provider liens must be reduced based upon the healthcare provider’s pro rata share of legal fees and costs. Id.

• Claims by those other than the person receiving medical services, such as wrongful death beneficiaries, are not subject to healthcare provider liens. Gartin v. St. Joseph’s Hosp. and Medical Center, 156 Ariz. 32, 749 P.2d 941 (App. 1988).

II. WINTERS et al. v. BANNER HEALTH INC., et al.

AHCCCS payment to a medical provider constitutes “payment in full” and preempts A.R.S. § 33-931, et seq., liens. Lizer v. Eagle Air Med Corp., 308 F.Supp.2d 1006 (D.Ariz. 2004) (holding that, Medicaid statute (i.e., AHCCCS) and related regulation providing that acceptance of Medicaid payments constitutes “payment in full,” preempted state healthcare provider lien statute to extent state law permitted a healthcare provider to recoup the balance of its customary charges after provider had already accepted Medicaid payment); 42 U.S.C. § 1396a(a)(25)(C).

Given the prohibition against balance billing after receipt of AHCCCS payment, Geoff Trachtenberg and Lance Entrekin, recently filed a federal court class action entitled Winters, et al. v. Banner Health Inc., et al., 2-11-CV-01537-SRB, seeking declaratory judgment and injunctive relief, legal and equitable relief, breach of contract and unjust enrichment against many of the Arizona hospital corporations that have asserted, and collected, balance billing liens after accepting AHCCCS payment.

III. BALANCE BILLING = HIPAA VIOLATION PART DEUX.

In July 2004, I published an article in the Advocate entitled Balance Billing = HIPAA Violation. The article is attached and represents my original thoughts on the subject. Basically, I was confused how a medical provider could legally file a document with a county recorder, that is then available anywhere in the world to anybody with an internet connection, without violating the patient’s privacy rights. My conclusion was that the lien was an absolute violation of State and Federal privacy rights.

I briefly litigated the privacy violation issue with Gammage & Burnham in late 2007, but was unable to maintain the claim after Gammage & Burnham successfully moved to dismiss it. The issue became dormant until a few months ago when Gammage & Burnham asserted in the Winters litigation that HIPAA prevented it from releasing certain balance billing liens during discovery – even though the liens had previously been released to the public when they were filed with the county recorders.

Gammage & Burnham’s current position seems to acknowledge the protected nature of patient protected health information contained in balance billing liens. This should give rise to a new challenge to the legality of such liens. Should you be so inclined to attack the validity of the liens, here are some arguments that can get you started (taken from my response to Gammage & Burnham’s 2007 motion to dismiss):

The defendant medical provider violated the plaintiff’s privacy rights when it publicly disclosed the plaintiff’s protected health information by filing two A.R.S. § 33-931, et seq. “balance billing” liens with the Maricopa County Recorder.

The allegation that the defendant’s liens violate patient privacy rights is a complex legal issue requiring a deep understanding of the purposes and principles behind the Federal and State laws that regulate the disclosure and dissemination of patient medical information. The issue cannot be dealt with on a cursory level as the defendant has done in its motion. As shown below, there are sufficient grounds upon which the plaintiff’s privacy right allegations can be granted. Thus, the motion to dismiss should be denied.

The defendant maintains that its liens “disclose no protected information.” Motion at 4. This is incorrect. The defendant’s attorney, Richard Burnham, admits that balance billing liens are part of a hospital’s “payment activities.” See Burnham letter, attached as Exhibit B. A.R.S. § 12-2291(6) defines “payment records” as

"Payment records" means all communications related to payment for a patient's health care that contain individually identifiable information.

As the two liens at issue in this matter contain many portions of the plaintiff’s individually identifiable information, including: (1) the patient’s name and address, (2) dates of medical service, (3) location of medical service, (4) the name of the medical provider, and (5) the amount charged for the medical services, the liens constitute a “payment record” under A.R.S. § 12-2291.

A.R.S. § 12-2292 protects a patient’s privacy rights by making “payment records” privileged and confidential:

A. Unless otherwise provided by law, all medical records and payment records, and the information contained in medical records and payment records, are privileged and confidential.

Therefore, by filing the liens, the defendant has violated A.R.S. § 12-2292 and the plaintiff’s privacy rights.

The defendant’s argument that the “otherwise provided by law” provision found in A.R.S. § 12-2292 allows it to violate its patients’ privacy rights is contrary to logic. The “otherwise provided by law” provision refers to instances where a medical provider is required to disclose privileged health information, i.e. child abuse, adult abuse, HIV, child births, social security admissions, etc. Medical providers are not required by law to file balance billing liens. Instead, once the medical provider exercises its option to file a balance billing lien, it is required to follow the guidelines outlined in A.R.S. § 33-932(A). To read the “otherwise provided by law” provision in A.R.S. § 12-2292 as bestowing medical providers with unbridled and unilateral authority to disclose protected health information would violate the spirit for which the privacy protection was enacted. City of Phoenix v. Superior Court In and For Maricopa County, 101 Ariz. 265, 267, 419 P.2d 49, 51 (1966) (“It is the well settled law of this state that in construing a statute the spirit of the enactment must be considered and, if possible, the statute will be construed consistent therewith. . . . When the literal language of a statute will result in an absurdity, an impossibility, or a meaning which is clearly at variance with the legislative intent, courts may and well alter, modify, or supply words to the statute in order to give effect to the manifest intention of the Legislature.’)

Finally, although the plaintiff does not ask for a declaratory ruling that the liens violate the Health Insurance Privacy and Accountability Act (“HIPAA”), the Hospital’s argument that the “otherwise provided by law” provision allows it to freely violate its patients’ privacy rights is further frustrated by the constraints HIPAA places on debt collections. HIPAA was enacted on April 13, 2004. HIPAA precludes health care providers from disclosing “individually identifiable health information.” 42 U.S.C. § 1320d(6). “Individually identifiable health information” is that which combines the identity of a patient with “information . . . created or received by a health care provider . . . [that] relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.” Id. HIPAA provides a Federal floor of privacy protections for individuals' individually identifiable health information where that information is held by a covered entity or by a business associate of the covered entity. 45 C.F.R. § 160.202. States are preempted from enacting laws that lower HIPAA’s privacy protections, but are allowed to create laws that provide “more stringent” privacy protections. Id. Subsequent to the enactment of HIPAA, the Arizona legislature did just that by amending A.R.S. § 12-2291, et seq. to make “payment records” privileged and confidential. See Laws 2004, Ch. 191, § 2. Thus, even if one were to assume, for purposes of this motion only, that HIPAA allows the hospital to release protected health information under its “payment activity” provision, the only permissible interpretation of the Arizona’s legislature’s subsequent decision to make HIPAA more stringent is that it intended to provide more protection to patients’ privacy expectations, not only when receiving care, but also during the medical providers’ attempts to collect payment for the care. The defendant’s position would render the legislature’s addition of “payment records” as privileged and confidential meaningless.

IV. WHAT’S ON THE HORIZON?

The brain trust in the Arizona Legislature is at it again. The Fiftieth Legislature is expected to introduce a bill to amend Title 12, Chapter 7, Article 2 of the Arizona Revised Statutes to add 12-824, relating to actions against public entities where the claimant asserts the right to recover medical expenses incurred as a result of bodily injury. The new law would limit the right of anyone injured by a public entity to recover more than the “amount actually paid in full satisfaction of the services.” It is rumored that the brain trust is considering expanding this new law to all bodily injury claims, not just claims against public entities.

If either of these laws are enacted, it would wipe out decades of Arizona common law allowing injured plaintiffs to claim billed charges. It would also drastically affect or eliminate balance billing because if the injured party is only able to recover the amount actually paid, then equitably there would be nothing for the medical provider to balance bill against. Hopefully Geoff Trachtenberg’s best friends at Gammage & Burnham are on top of this issue and will help us fight it.

V. DON’T BE BASHFUL.

Oftentimes balance billing liens are not properly perfected. The statute makes clear that such liens “are invalid and may not be enforced.” When liens are not filed properly, don’t just give in and compromise the lien, but consider sending a letter such as this:

Dear _________:

We represent _________for injuries she sustained in a March 10, 2010 car crash. Upon searching the Maricopa County Recorder, we noticed that you filed a A.R.S. § 33-931, et seq., balance billing lien against _________ on May 27, 2010. This letter is to request that the lien be immediately released from the Maricopa County Recorder because it is invalid and may not be enforced.

_________ first received treatment from Arrowhead Health on March 11, 2010. A.R.S. § 33-932 requires balance billing liens to be recorded “before or within thirty days after the patient has received any services relating to the injuries.” The failure to record a lien within thirty days makes the lien void as a matter of law – “If a health care provider other than a hospital or ambulance service does not record the claim, lien or assignment as provided in this section, the claim, lien or assignment is invalid and may not be enforced by the cause of action provided in section 33-934.” As Arrowhead Health did not file the lien against _________ until May 27, 2010, more than 60 days after it first provided treatment, the lien is not valid and must be withdrawn.

Please file a lien release with the Maricopa County Recorder and provide us with those releases by October 26, 2011.

Thank you.

If the provider does not release the lien, file a declaratory judgment action and seek your costs and fees. A form complaint for declaratory judgment is attached.

Tea Party and Trial Lawyers - Strange Bedfellows

Scott I. Palumbo, Esq. — Wed, 21 Dec 2011 16:07:00 GMT

Tea Party and Trial Lawyers - Strange Bedfellows

One wouldn't think trial lawyers and the Tea Party have much in common. But, they do. Both believe that the United States' Constitution's 7th Amendment, which preserves the "right of trial by jury," is not to be meddled with.

Judson Phillips, the founder of Tea Party Nation, recently posted:

"The free market is a wonderful system. It produces amazing efficiencies and amazing wealth. The free market system has delivered more prosperity to more people than any other system. There is another beauty to the free market system that many people do not think about. The free market system punishes bad behavior. If I open a business and decide to sell something that is a really bad product, people do not come to my business. I have the incentive to produce a really good product because that way people will want to come to my business.

The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7 th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior.

If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me.

The right to a jury trial has a long and storied history in America and even further back in Britain.

Much as the Federal Government is overstepping its bounds by ordering Americans to buy health insurance, the government is also overstepping its bounds by telling citizens and states how much they can award in law suites and also telling lawyers how much they can be paid. (sic)

The free market is an amazing thing. It needs almost no intervention to achieve the right result, and the civil jury trial is an important part of the free market.

Take a moment to tell your Senators and Congressmen we do not need the federal government telling states what to do and trampling on another one of our constitutional rights."

Similarly, Tea Party Patriots co-founder and national coordinator, Mark Meckler, spoke out against federal tort reform because it unconstitutionally usurpts states' rights. "Most folks in the tea party movement would say those things should be dealt with at the state level. ... It's not for the federal government to be adjusting the legal system of individual states."

WHAT TO DO AFTER A CAR OR MOTORCYCLE CRASH

Phoenix Personal Injury Lawyer — Wed, 23 Nov 2011 17:42:00 GMT

WHAT TO DO IF YOU ARE INVOLVED IN A CAR OR MOTORCYCLE ACCIDENT

1) At the scene of the crash, cooperate with the police, but only tell the police what you saw or were able to observe. Do not guess about what happened.

2) Seek whatever medical attention is required for you and every passenger in your vehicle.

3) DO NOT SPEAK WITH ANY CAR INSURANCE REPRESENTATIVE ABOUT YOUR INJURIES. The automobile insurers will likely contact you very quickly to obtain a statement from you about what happened and the injuries you believe you sustained. Do not provide a statement until you have spoken with an attorney.

4) You may speak with health insurance representatives, or property damage insurance representatives, but you are under no immediate obligation to speak to any auto insurance representative about your injuries.

5) Do whatever is necessary to get your life back together.

6) After you are back on your feet, contact an attorney who specializes in auto accident claims. The attorneys at Palumbo Wolfe & Palumbo have over 150 years specializing in representing auto and motorcycle collision injury victims. We offer free consultations and can be contaced at 602-265-5777. Do not be fooled by advertisements offering a "discount fee." Remember - you get what you pay for.

7) If you decide to retain an attorney, let the lawyer handle your claim. That is their job.

8) Get better.

__________________________________________________

Palumbo Wolfe & Palumbo has been ranked by US News & World Report and Best Lawyers as one of the best plaintiff specialty law firms, not only in Arizona, but in the country. We are the only Arizona law firm who has received top ranking in the areas of plaintiff's personal injury, medical malpractice and product liability law. Our firm has achieved an "AV" rating (the highest possible) under Martindale-Hubbell's peer review ratings system* of legal ability and general ethical standards. Attorneys at our personal injury law firm have been elected to the prestigious American College of Trial Lawyers, which represents the top 1% of all trial lawyers in North America. Several of our trial attorneys have been named in the Best Lawyers in America publication every year since 1993. Elliot Wolfe and Anthony Palumbo have held the recognition of being the #1 plaintiff medical malpractice lawyers in Arizona for 2010, 2011 and 2012. The National Trial Lawyers Association has named Scott Palumbo as one of the Top 100 trial attorneys in Arizona for 2009, 2010 and 2011. We are also members of the prestigious Multi-Million Dollar Advocates Forum, which recognizes trial lawyers who have successfully handled cases in excess of two million dollars.

Palumbo, Wolfe & Palumbo Earns Best Lawyers in America Recognition

Phoenix Personal Injury Lawyer — Wed, 19 Oct 2011 22:44:00 GMT

Palumbo, Wolfe & Palumbo Earns Best Lawyers in America Recognition

Anthony J. Palumbo, Elliot G. Wolfe, and James J. Leonard are honored in the 2012 edition. This distinction adds to the continuing prominence of this plaintiff specialty law firm.

FOR IMMEDIATE RELEASE

PRLog (Press Release) - Oct 19, 2011 -

The Best Lawyers in America, an annual publication that recognizes excellence in the legal field, has listed the above attorneys in its 2012 edition. Best Lawyers is regarded by the legal profession and the public alike as a definitive guide to the most accomplished attorneys practicing in the United States today. These attorneys are selected based on a rigorous national survey of detailed evaluations made by other lawyers. More than 3.9 million evaluations were considered in this year’s rankings.

Attorney Anthony J. Palumbo, a personal injury litigator, was recognized in the legal fields of personal injury and wrongful death, including such practice areas as birth trauma, brain injury, catastrophic injuries, hospital malpractice, and medical negligence. Attorney Elliot G. Wolfe was recognized for his personal injury trial work in cases involving product liability, auto collisions, aviation litigation, medical malpractice, and railroad accidents. Attorney James J. Leonard was honored in the field of personal injury litigation for plaintiffs.

A personal injury law firm located in Phoenix, Arizona, Palumbo, Wolfe & Palumbo has been rated as one of the best plaintiff specialty law firms in the country by both U.S. News and World Report as well as Best Lawyers in America. The firm has been awarded the highest rating from Martindale-Hubbell, a nationally known and respected lawyer’s review organization. Furthermore, Anthony Palumbo and Elliot Wolfe have been distinguished as the number one medical malpractice lawyers in Arizona for the last three years running while Attorney Scott Palumbo was named as a Top 100 trial lawyer for three years in a row by the National Trial Lawyers Association.

The firm’s attorneys handle complex litigation concerning personal injury, medical negligence, and wrongful death. If you are currently dealing with the devastating effects of a serious injury or death of a loved one caused by the negligence or wrongdoing of another individual or business entity, you may wish to seek the outstanding legal services of an attorney at this firm. To learn more, visit http://www.palumbowolfe.com/

# # #

Palumbo, Wolfe & Palumbo is a Phoenix personal injury firm that provides exceptional legal representation to injury victims and the family survivors involved in wrongful death cases. If you have been seriously injured or lost a loved one in an auto accident, trucking collision, through the use of a dangerous product, through medical malpractice, nursing home negligence or abuse, or through some other negligence or wrongdoing, you can get the dedicated and compassionate legal help you need from this firm. A Phoenix personal injury attorney can evaluate your case in a free consultation in order to advise you of your legal rights and the legal aspects involved in your case. Call the firm to arrange for a consultation today at (800) 752-1570 or visit their website at http://www.palumbowolfe.com/

New Report Confirms That Tort Reform Doesn't Work

Phoenix Personal Injury Lawyer — Wed, 19 Oct 2011 03:19:00 GMT

The consumer protection group Public Citizen has just issued a report that confirms that tort reform benefits nobody but insurance companies.

New Public Citizen Report: Texas’ Health Care System Has Worsened Significantly Since Imposition of Liability Caps

Doctors and Insurance Companies Benefit, Malpractice Victims and Taxpayers Lose

WASHINGTON, D.C. – While many politicians and commentators hammer away at the idea that medical malpractice litigation is to blame for the country’s skyrocketing health care costs, a new report issued today by Public Citizen debunks this notion by analyzing health care in Texas. There, the imposition of medical liability caps in 2003 – which prevent the most severely injured patients from being fully compensated for damage caused by bad doctors – has not reduced medical costs or curbed the ordering of expensive diagnostic tests. Instead, health care is less available and has become more expensive compared to national averages.

The report,“A Failed Experiment: Health Care in Texas Has Worsened in Key Respects Since State Instituted Liability Caps in 2003,” analyzes the costs and availability of health care since Texas imposed a $250,000 cap on the amount of non-economic damages that injured patients could recover from negligent doctors. Since the cap was implemented, malpractice litigation in the Lone Star state has plummeted dramatically, but Medicare spending has soared. This contradicts the “defensive medicine” theory, which holds that fear of litigation is to blame for stark increases health care costs. Also since the caps were instituted in Texas, health insurance costs have outpaced the national average and the percentage of residents lacking health insurance has risen.

“Despite the sales campaign to promote Texas as an exhibit of the merits of limiting doctors’ liability for mistakes, the real world data tell the opposite story,” said Taylor Lincoln, research director of Public Citizen’s Congress Watch division and author of the report. “Health care in Texas has become more expensive and less accessible since the state’s malpractice caps took effect.”
Added Tom “Smitty” Smith, director of Public Citizen’s Texas office, “This report shows that the rest of the nation should not hold up Texas as a model. The only winners in Texas are the doctors and the insurance companies.”

Since Texas instituted its liability limits:

Per-enrollee Medicare spending in Texas has risen 13 percent faster than the national average;
Medicare spending specifically for outpatient services in Texas has risen 30.7 percent faster than the national average;
Medicare diagnostic testing expenditures in Texas have risen 25.6 percent faster than the national average;
Premiums for private health insurance in Texas have risen faster (51.7 percent) than the national average (50 percent);
The percentage of Texans who lack health insurance has risen to 24.6 percent, solidifying the state’s dubious distinction of having the highest uninsured rate in the country;
The per capita increase in the number of doctors practicing in Texas has slowed to less than half its rate in the years leading up to the caps;
The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the caps; and
The prevalence of physicians in non-metropolitan areas has declined.

The two groups that have benefited the most from the restrictions are liability insurance companies and physicians, Public Citizen found. Since the caps were imposed, doctors have been held less accountable for their errors. The number of payments made on behalf of Texas doctors to compensate patients for medical errors fell more than 50 percent between 2003 and 2010, and the value of those payments fell by nearly 65 percent, without adjusting for inflation. But insurance companies have cut doctors’ malpractice insurance premiums more slowly. Viewed in the contexts of starkly rising costs and diminished accessibility of care, these figures show that regular Texans have received nothing in exchange for ceding their legal rights.

Palumbo Wolfe & Palumbo Founding Partner Named 2012 Best Plaintiff Medical Malpractice Lawyer in Arizona

Phoenix Personal Injury Lawyer — Tue, 04 Oct 2011 16:58:00 GMT

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Anthony J. Palumbo as the Phoenix Best Lawyers Medical Malpractice Law - Plaintiffs Lawyer of the Year for 2012.

After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 18th edition of The Best Lawyers in America (2012) is based on more than 3.9 million detailed evaluations of lawyers by other lawyers.

The lawyers being honored as “Lawyers of the Year” have received particularly high ratings in our surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity.

Steven Naifeh, President of Best Lawyers, says, “We continue to believe – as we have believed for more than 25 years – that recognition by one’s peers is the most meaningful form of praise in the legal profession. We would like to congratulate Anthony J. Palumbo on being selected as the ‘Phoenix Best Lawyers Medical Malpractice Law - Plaintiffs Lawyer of the Year’ for 2012.”

Arizona Dog Owners Are Strictly Liable For Dog Bites

Phoenix Personal Injury Lawyer — Tue, 02 Aug 2011 18:07:00 GMT

We all love dogs. Unfortunately, many dogs bite for no apparent reason. When a dog biteswithout being provoked and the bite causes harm, the dog's owner is strictly responsible for the damages caused by the bite.

In Arizona, “dogs do not get ‘one free bite’.” Massey v. Colaric, 151 Ariz. 65, 66, 725 P.2d 1099, 1100 (Ariz. 1986).

Owners are held strictly liable for injuries caused by their dogs’ actions and liability is imposed without regard to an owner’s knowledge of the dog’s viciousness. The owner is virtually an insurer of the dog’s conduct.

Id.

Provocation is the only defense permitted in strict liability dog bite cases per A.R.S. § 11-1027, which states:

Proof of provocation of the attack by the person injured shall be a defense to the action for damages. The issue of provocation shall be determined by whether a reasonable person would expect that the conduct or circumstances would be likely to provoke a dog.

There is a one year statute of limitations for strict liability dog bite claims, so if you or a loved one were seriously injured because someone else's dog bit you, you should contact our office immediately 602-265-5777.

Hot Coffee - Exposing the Truth Behind Tort Deform

Scott I. Palumbo, Esq. — Wed, 29 Jun 2011 15:56:00 GMT

HBO recently aired a wonderful documentary by Susan Saladoff entitled Hot Coffee, which outlines the truth behind the infamous "McDonald's hot coffee case" and how insurance companies, big business, and tort deformers have improperly tried to use the case as their poster child for taking away your civil rights. http://hotcoffeethemovie.com/ We encourage all of you to watch the movie. You will be shocked.

About the Movie

The civil justice system has been under heavy attack for over 25 years.

Despite the fact that federal legislation has never been successful, big business interests have won in the hearts and minds of average people. They launched a public relations campaign starting in the mid-80’s and continuing over the last two decades to convince the public that we have out of control juries, too many frivolous lawsuits and a civil justice system that needs reforming. They have used anecdotes, half-truths and sometimes out and out lies in their efforts, for one purpose – to put limits on people’s access to the court system, the one and only place where an average citizen can go toe to toe with those with money and power and still have a shot at justice.

Because of the success of the public relations campaigns, paid for by tobacco, pharmaceutical and insurance companies, to name a few, our civil justice system is not impartial. Jurors have been led to believe that a large verdict will affect their pocketbooks. Voters believe that we have a court system out of control that needs reforming. Although there are consumer advocacy groups who have attempted to set the story straight, there has yet to be enough money to launch the kind of public relations campaign for consumers that can even begin to combat and challenge the public relations campaigns of pro-business and tort reform groups. Over the last few years, however, documentary films and independent film festivals have become a vehicle for alternative ideas to get a public forum.

Because almost everyone has heard about the McDonald’s coffee case, and most people believe they know what it’s about, this project has a fascination for people. Of course, we go much further into the debate than just the McDonald’s coffee case, but the case is a vehicle for people to think about their long held beliefs and whether they are valid. We think this movie has the potential, with the right funding and effort, to really change the way people think about our civil justice system and access to the courts.

Arizona Law Regarding Causation in Negligence/Tort Actions

Phoenix Personal Injury Lawyer — Wed, 15 Jun 2011 17:25:00 GMT

In order to maintain a negligence/tort action in Arizona, an injury victim must establish the four elements of a tort. Those four elements are duty, breach, causation and damages. In other words, the injury victim must prove that the defendant had a duty to the victim, the defendant breached that duty, and the breach of the duty caused damages.

Causation is generally a question of fact for the jury to resolve. Fehribach v. Smith, 200 Ariz. 69, 73, ¶ 16, 22 P.3d 508, 512 (App. 2001). Causation does not have to be established with “absolute certainty so as to exclude every other conclusion.” Morrison v. Acton, 68 Ariz. 27, 33, 198 P.2d 590, 594 (1948). “To be a proximate cause, Defendant’s conduct may have contributed only slightly to the injury.” Id. (Emphasis added); Tellez v. Saban, 188 Ariz. 165, 171, 933 P.2d 1233 (App. 1996); Ontiveros v. Borak, 136 Ariz. 500-505, 667 P.2d 200 (1983).

The court examines the total evidence regarding causation and determines whether there is a genuine controversy for the jury to decide. “A party may prove proximate causation by presenting facts from which a causal relationship may be inferred, but the party cannot leave causation to the jury’s speculation.” Salica v. Tucson Heart Hospital-Carondelet, 224 Ariz. 414, 419, ¶ 16, 231 P.3d 946, 951 (App. 2010). To demonstrate proximate cause, the plaintiff must show “a natural and continuous sequence of events stemming from the defendant's act or omission . . . that produces an injury, in whole or in part, and without which the injury would not have occurred.” Barrett v. Harris, 207 Ariz. 374, 378, 86 P.3d 954, 958 (App. 2004) (emphasis added). Liability can also be incurred if the malpractice was a factor that reduced a patient’s chance of survival or, conversely, increased the risk of harm. Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 607-08, 688 P.2d 605, 615-16 (1984).

If there is “medical evidence of the possibility of the existence of the causal relationship together with other evidence or circumstances indicating such a relationship, the finding that the [negligent conduct] caused the injury will be sustained.” Montague v. Deagle, 11 Ariz. App. 106, 108, 462 P.2d 403, 405 (1969) (citation omitted); see also, Kreisman v. Thomas, 12 Ariz. App. 215, 218, 469 P.2d 107, 110 (1970). Moreover, probability need not be established by any magic words uttered by a witness. In re M.H. 2007-001236, 220 Ariz. 160, 169-70, 204 P.3d 418, 427-28 (App.2008) (quoting Saide v. Stanton, 135 Ariz. 76, 78, 659 P.2d 35, 37 (1983)). Rather, “the trier of fact is allowed to determine probability or lack thereof if the evidence, taken as a whole, is sufficient to warrant such a conclusion.” Id. at 169-70, 204 P.3d at 427-28 (quoting Saide, 135 Ariz. at 78, 659 P.2d at 37).

Ritchie v. Krasner, 211 P3d 172 (2009), also addresses causation as follows:

1.Courts generally leave the issue of proximate cause to the jury. Christy v. Baker, 7 Ariz. App. 354, 358, 439 P.2d 517, 521 (1968). The plaintiff does not need “to introduce evidence to establish that the negligence resulted in the injury or the death, but simply that the negligence increased the risk of injury or death. The step from increased risk to [the probability of] causation is one for the jury to make.

2.A jury may find proximate cause between the defendant’s act and the plaintiff’s injury if the plaintiff’s injury was a foreseeable consequence of the act. See Dan B. Dobbs, The Law of Torts 447-53 (West Group 2000). Foreseeability is not a factor when deciding whether a duty exists. Gipson II, 214 Ariz. at 144, ¶ 15, 150 P.3d at 231. Determining whether a certain result is foreseeable requires a factual analysis that is best left to the jury. Juries should engage in a foreseeability analysis to help determine the issues of breach and causation. Id. at ¶ 16. It is essential for both courts and parties not to conflate the legal determination of duty and the factual determinations of standard of care, breach, and causation. If we were to use foreseeability as a factor to help determine the existence of duty, we would risk “obscur[ing] the factors that actually guide courts in recognizing duties for purposes of negligence liability.” Id. Limiting foreseeability to the factual analysis “recognizes the jury’s role as factfinder and requires courts to articulate clearly the reasons other than foreseeability, that might support duty or no-duty determinations.” Id. at ¶ 17.

Arizona Law Regarding Duty to Third Parties

Scott I. Palumbo, Esq. — Wed, 15 Jun 2011 17:02:00 GMT

In order to successfully maintain a negligence/tort lawsuit in Arizona, a plaintiff/victim must show that a defendant had a legal obligation to protect him from injury or harm - a “duty” in the parlance of tort law. See Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Id.

Duties may arise from a special relationship between the parties, a relationship that may find its basis in contract, family relations, or the nature of the putative defendant’s undertakings. See Hislop v. Salt River Project Agric. Improvement and Power Dist., 197 Ariz. 553, 557, ¶ 21, 5 P.3d 267, 271 (App. 2000); Stanley v. McCarver, infra. The proper inquiry is whether a sufficient relationship exists between the parties to make it reasonable, as a matter of public policy, to impose a duty. Markowitz, 146 Ariz. at 356, 706 P.2d at 368.

In Stanley v. McCarver, a doctor-patient relationship was not necessary to support the existence of a duty. 208 Ariz. 219, 226, 92 P.3d 849, 856 (2004). The Court determined that, despite the absence of a doctor-patient relationship among the parties, the doctor owed a duty of care to the plaintiff. Id. at 208 Ariz. at 224, 92 P.3d at 854. The Court noted that while the traditional rule required a doctor-patient relationship before liability could be imposed, the requirement of a formalized relationship to establish a duty was eroding in Arizona, as well as in several other jurisdictions. Id., noting Lombardo v. Albu, 199 Ariz. 97, 99-100 ¶¶ 10-12, 14 P.3d 288, 290-91 (2000) (imposing a duty on a purchaser’s real estate agent to deal fairly with sellers); Tarasoff v. Bd. f Regents, 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334, 340 (1976) (imposing a duty on mental health workers to warn of threat of immediate harm to third party). The Stanley Court also relied on its previous ruling in Diggs v. Ariz. Cardiologists, Ltd, 198 Ariz. 198, 201, 8 P.3d 386, 389 (2000), where a formal doctor-patient relationship did not exist but where a duty was nevertheless imposed on the doctor.

In expanding the duty of a physician to third parties, the Stanley Court specifically held:

The requirement of a formalized relationship between the parties has been quietly eroding in several jurisdictions. It has been eroding in Arizona as well, and, when public policy has supported the existence of a legal obligation, courts have imposed duties for the protection of persons with whom no preexisting “relationship” existed. Indeed, at least one Arizona case has held that a formal doctor-patient relationship need not exist before a duty may be imposed on the doctor. See Diggs… The absence of such a relationship does not necessarily exclude a duty to the patient.

Id. at 202, ¶ 14, 8 P.3d at 390. (Emphasis added) (Some internal citations removed).

The Arizona Supreme Court in Stanley also cited an additional rationale in support of a duty to potential tort claimants:

The imposition of a duty in these circumstances also comports with the Restatement (Second) of Torts § 324A (1965)… Section 324A suggests imposing a duty on one “who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person.” It provides that a person “is subject to liability to the third person ... if (a) his failure to exercise reasonable care increases the risk of ... harm, or ... (c) the harm is suffered because of reliance of ... the third person upon the undertaking.” Restatement, supra, § 324A… (emphasis added).

Subsequent Arizona cases have continued the rationale adopted in Stanley. For example, Gipson v. Kasey holds that a special or direct relationship is not essential for a duty of care to exist. 214 Ariz. 141, 144, 150 P.3d 228, 231 (2007). In Gipson, a co-worker brought prescription pain pills to a holiday party, and gave pills to decedent’s girlfriend. Id. at 214 Ariz. at 142, 150 P.3d at 229. The decedent took six pills from his girlfriend, consumed alcohol, and died in his sleep the next morning from the combination of the drugs and alcohol. Id. The defendant co-worker argued that he did not owe the decedent a duty of care because he had no direct or special relationship with decedent. Id. at 214 Ariz. at 145, 150 P.3d at 232. The Court stated, “[d]uties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant.” Id. citing Stanley, 208 Ariz. at 221, 92 P.3d at 851. The court further held, as explained in Stanley, “when public policy has supported the existence of a legal obligation, courts have imposed duties for the protections of persons with whom no preexisting ‘relationship’ existed.” Id., citing Stanley, 208 Ariz. at 221-22, 92 P.3d at 851-52.

These same principles were reiterated and confirmed as recently as a year and a half ago when the Arizona Supreme Court denied review in Ritchie v. Krasner, 211 P3d 172 (2009). Ritchie is instructive on both the duty and causation arguments raised by defendants. The essential question in Ritchie was whether the defendant IME physician, hired by a workman’s compensation carrier, had a duty to the injured employee despite language in the IME agreement that stated: “It is very important that you realize that no Doctor/Patient relationship exists between you and Dr. Krasner. Because of this, the results of this evaluation will not be given to you or to anyone that you may request to receive them…” In upholding the presence of a duty on the part of the IME physician (Dr.Krasner), the court stated: “As the court noted after trial, because a formal doctor-patient relationship is not necessary for a duty to exist, the disclaimer in the [Agreement] is simply irrelevant.” Id. at ¶ 22.

The Ritchie decision also confirmed the following principles:

1.The existence of a duty is generally a question of law, and we examine whether a duty exists de novo. Diggs v. Ariz. Cardiologists, 198 Ariz. 198, 200, ¶ 11, 8 P.3d 386, 388 (App.2000). The other elements of negligence are factual issues, and are generally within the province of the jury. Gipson II, 214 Ariz. at 143, ¶ 9, 150 P.3d at 230.

2.A duty may arise even in the absence of a formal relationship. Stanley, 208 Ariz at 221 ¶ 7, 92 P. 3d at 851. It can arise from a relationship between the parties, a contractual relationship, or any number of other types of contacts. Id. “A special or direct relationship, however, is not essential in order for there to be a duty of care.” Gipson II, 214 Ariz. at 145, ¶ 18, 150 P.3d at 232.

Other Arizona Cases Establishing An Extended Duty.

1. A bartender to the general public (even though there was no direct relationship between them.) Ontiveros v. Borak, supra.

2. Psychiatrist to family members harmed by a negligently treated patient. Little v. All Phoenix South Community Mental Health Center, Inc, 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (1995). Here, the Court extended a duty to third persons whose circumstances place them within the reasonably foreseeable area of danger. In finding the existence of a duty, the Little Court stated: “In sum, plaintiff was a ‘readily identifiable [person] who might suffer harm if the [defendants were] negligent in the diagnosis or treatment of the patient.’”. Id.

3. Security Service to Intoxicated Spectator. Professional Sports, Inc. v. Gillette Security, Inc., 766 P.2d 9. A security company had a duty to protect third-party patrons of a ball park; privity of contract between security company and injured spectator was not required to establish a duty; there were issues of fact pertaining to breach of duty which precluded summary judgment in favor of security company.

4. A purchaser’s real estate agent to sellers. Lombardo v. Albu, 199 Ariz. 97, 99-100 ¶¶ 10-12, 14 P.3d 288, 290-91 (2000), cited by the Supreme court in Stanley, supra.

Ahlborn Reduction Applied Retroactively in Blanton v. Dept. Public Health and Human Resources

Scott I. Palumbo, Esq. — Mon, 06 Jun 2011 17:34:00 GMT

Our job is not complete when we obtain a judgment or settlement for our clients. In fact, obtaining a settlement is sometimes the easier part of the case. The hard part comes when lien collectors come knocking on the door to claim a share of the settlement or verdict. Many times the lien collectors have no right to claim a lien, or claim too much of a lien. It is our job to make sure that only valid liens are paid, and that only the reasonable value of the lien is paid.

One type of valid lien is a Medicaid lien (commonly referred to in Arizona as an AHCCCS lien). When a Medicaid/AHCCCS beneficiary obtains a judgment or settlement for injuries for which Medicaid/AHCCCS paid for treatment, Medicaid/AHCCCS is entitled to be reimbursed for a portion of the medical expenses. Prior to the recent Ahlborn decision, AHCCCS was not required to take into account the context of the settlement versus the injury victim's overall recovery. Instead, AHCCCS would usually only reduce it's lien by a "common fund" reduction, i.e. by the percentage of attorneys' fees paid collecting the settlement or judgment. Ahlborn changed that. Now, Medicaid/AHCCCS is required to look into the amount the injury victim was able to collect versus the overall value of his or her case. For example, if the injury victim had a million dollar injury, but was only able to collect $100,000 of insurance coverage, then the victim was only able to collect 10% of the value of his claim. Ahlborn says that Medicaid/AHCCCS must also only collect 10% of the value of its lien before subtracting the "common fund" reduction. This equitable decision means that injury victims are able to keep more money in their pockets.

While Ahlborn was good news for injury victims after the decision was rendered, it meant that many prior Medicaid/AHCCCS beneficiaries had paid too much to resolve their Medicaid/AHCCCS liens. Because of this, a lawsuit was filed in Montana to reimburse those beneficiaries that had overpaid. Last week, the Montana Supreme Court issued an opinion that retroactively applied Ahlborn in Blanton v. Dept. Public Health and Human Resources, 2011 WL 2162724. The Montana Supreme Court approved a class action on behalf of approximately 2500 Medicaid beneficiaries against Medicaid for "monies improperly collected." The Court stated,

The [Ahlborn] decision meant the [Montana] Department had impermissibly collected settlement proceeds attributable to non-medical costs in thousands of instances in the past. For example, were an injured person to have received $60,000 worth of Medicaid assistance for an injury that later gave rise to a $20,000 settlement between the recipient and a third party, if half of the settlement amount was attributable to medical costs and half to damages for pain and suffering, the Department would be limited by the federal anti-lien provision to reimbursement from the $10,000 payment for medical expenses. Previously, however, the Department asserted liens to the full extent of its assistance paid, and against all settlement proceeds received by the recipient in the above example, against the full $20,000.

In summary, we conclude Ahlborn applies retroactively to all class members' claims. The Department must raise affirmative defenses with respect to individual class members to avoid Ahlborn's effect.

This is further good news for all of our clients who may face a Medicaid/AHCCCS lien claim in their case.

VOIR DIRE IS IMPORTANT TO IDENTIFY BIASED JURORS

Scott I. Palumbo — Wed, 27 Apr 2011 22:53:00 GMT

The following quotes illustrate the importance of allowing lawyers to conduct adequate voir dire so that biased jurors aren't allowed to sit in judgement of their peers.

"The very essence of due process would be denied if one or more members of a jury panel were allowed to remain as jurors while harboring a bias or prejudice toward one of the parties." Allison v. Dept of Labor, 401 P.2d 982 (1965).

Although the judge has a duty to restrict the examination of the prospective jurors within reasonable bounds to expedite trial, the fixing of an arbitrary time limit for voir dire in advance of trial is dangerous and could lead to reversal on appeal. People v. Hernandez, 94 Cal App. 3d 715 (1979).

Jurors should be excused for cause if their particular beliefs will "prevent or substantially impair the performance of their duties as a juror in accordance with the instructions and oath." Wainwright v. Witt, 469 U.S. 412 (1985).

An initial "leaning" is not disqualifying if it represents skepticism rather than an unshakable conviction. Cortez v. HCCI-San Antonio, Inc., 159 SW3d 87, 91, 94 (2005).

The prospective juror is presumed qualified and competent, and the burden of proof is on the party advancing the challenge to prove otherwise by a preponderance of the evidence. Ortis v. Stevenson-Carson School Dist., 812 P.2d 133 (1991).

"Coaxed recantations" in response to leading questions by counsel "fail to demonstrate" the impartiality required of jurors. State v. Braunreiter, 185 P.3d 1024 (2008).

Clarification of Potential Bias is Proper, Rehabilitation is Not:

Voir dire gives the parties and opportunity to develop information that might disclose a potential juror’s specific bias in a suit of the type at trial. In conducting the voir dire examination, the trial court must evaluate whether a juror can lay aside preconceived impressions or opinions and render a verdict based solely upon the evidence presented in court, the instructions given by the judge, and the requirements of the juror’s oath. This frequently involves asking follow-up questions designed to probe jurors’ initial responses in order to clarify or interpret those responses. In making such an evaluation, however, a trial court cannot accept without question a simple promise by the juror to be fair and impartial if it follows several previous statements of obvious bias by the juror because . . . notwithstanding that the juror may be sincere in expressing a desire to be fair and impartial, the psychological impact of requiring such a declaration before the juror’s peers and a judge could render the promise unreliable.

Irvin v. Dodd, 366 US 717 (1961).

MORE SAFETY, LESS REFORM

Palumbo Wolfe — Wed, 09 Mar 2011 21:49:00 GMT

The following article was published in Washington Monthly, March/April 2011. It is a great piece regarding the need to do more to protect patient safety

First Do No Harm

Last year there wasn't a single fatal airline accident in the developed world. So why is the U.S. health care system still accidently killing hundreds of thousands? The answer is a lack of transparency.

By Marshall Allen

Georgeanne Mumm's surgeon emerged from the operating room with welcome news for her worried family. He had removed her cancerous kidney, he said, and her outlook looked good.

The surgeon failed to mention, however, that he also had accidentally removed part of her pancreas, having mistaken it for a tumor. Nor did he mention that he had in-advertently cut the blood flow to her spleen, damaging it irrevocably. Only an emergency operation by another doctor the next day kept Georgeanne from dying right then and there.

Now the fifty-six-year-old Mumm sits alone in her trailer in rural Nevada. She is unable to work due to her disability but is still on the hook for about $300,000 in medical expenses related to her disastrous contact with the U.S. health care system.

Why do we keep hearing stories like this? Twelve years ago, the Institute of Medicine issued a landmark report showing that medical errors in U.S. hospitals kill up to 98,000 Americans a year. In 2000, another estimate, published in the Journal of the American Medical Association, which included fatalities resulting from unnecessary surgery, hospital-acquired infections, and other instances of harmful medical practice, put the total annual death toll at 250,000.

By that figure, contact with the U.S. health care system was the third leading cause of death in the United States, just behind all heart disease and all cancer. People responded to the alarm. Task forces were convened, congressional investigations launched, op-eds written. Yet as hard as it may be to believe, American medicine is, if anything, even more dangerous today.

In November 2010, the U.S. Department of Health and Human Services issued a study that covered just the 15 percent of the U.S. population enrolled in Medicare. It found that each month one out of seven Medicare hospital patients is injured - and an estimated 15,000 are killed - by harmful medical practice. Treating the consequences of medical errors cost Medicare a full $324 million in October 2008 alone, or 3.5 percent of all Medicare expenditures for inpatient care. Another recent study looked at the incidence of avoidable medical errors across the entire population and concluded that they affected 1.5 million people and cost the U.S. economy $19.5 billion in 2008. The Centers for Disease Control and Prevention have estimated that almost 100,000 Americans now die from hospital-acquired infections alone, and that most of these are preventable.

People like Carole LaRocca are the human face of this travesty. One day recently I sat at the seventy-four-year-old's kitchen table as she broke down in tears. She was weeping not because of the hospital-acquired infection that almost took her life, but because of the $3,676 bill she faced for the antibiotics she needed to treat the harm done to her by her hospital stay. Every month she pays $25 of her meager fixed income toward the debt, and is still hounded by bill collectors.

A cynic might say it's no surprise that American medicine fails to put safety first, since doctors and hospitals often make money by treating those they injure. There is, however, also a deeper and more systematic reason for the continuing toll of injury and death caused by the U.S. health care system: we don't know who's failing and who's succeeding. Plenty of U.S. hospitals have dramatically improved their safety performance. The best have virtually eliminated the deadliest hospital-acquired infections, even as lethal microbes have evolved to become more contagious and resistant to treatment. If every health care provider adhered to the highest standards of patient safety and evidence-based medicine, hundreds of thousands of lives could be saved, to say nothing of the billions of dollars spent on treating complications - but good luck discovering for yourself which hospitals are safe and effective and which aren't.

That's because the public, the payers, and the providers themselves typically lack access to the data necessary to make such a life-and-death determination. In the airline industry, if a pilot so much as accidentally makes a wrong turn moving away from the gate, anywhere in the world, the event is instantly recorded in global databases and scrutinized by government agencies and the industry itself. The knowledge gained from this continuous process leads to big and little changes in aviation protocol, equipment, and personnel. As a result, there was not a single airline fatality anywhere in the developed world last year.

In health care, by contrast, patient safety experts often remark that the death toll from medical errors in U.S. hospitals is equivalent to three jumbo jets falling out of the sky and killing all the passengers on board every forty-eight hours. But even the most egregious errors go largely unreported, and when they are reported, they are often buried and ignored. For the most part, all the public gets to hear about are industry-wide estimates and statistical averages of the kind presented above. Because we lack specific knowledge of where these injuries are occurring and under what circumstances, we can't know precisely what to do about the ongoing catastrophe or whom to reward when specific solutions are found.

Fortunately, there is much that can be done - even by mere journalists willing to submerge themselves in some data. Not long ago, my colleague at the Las Vegas Sun, Alex Richards, and I set out to identify these cases of preventable harm and publish them. In Nevada, regulators require hospitals to submit a record of every inpatient stay, a policy originally intended to monitor costs. Based on billing records, each file provides a patient's age, gender, and race, as well as the conditions diagnosed and the procedures received during his or her hospital visit. And in 2008, the federal government started asking hospitals nationwide for one additional piece of data. Stung by the money it was paying under Medicare to treat injured patients, hospitals were required to report with a "yes" or a "no" whether each medical condition was present when the patient was admitted. This makes it possible to identify how may patients acquired preventable injuries while at the hospital's problems like severe bedsores, bloodstream infections caused by central-line catheters, and falls that resulted in a broken bone.

Shaking the data out of Nevada's state government wasn't easy, and crunching through 2.9 million inpatient billing records was also involved, as well as interviews with more than 250 nurses, doctors, hospital administrators, and injured patients to make sense of it all - but we eventually prevailed and launched a five-part series based on what we discovered. (The entire series is available at www.lasvegassun.com/hospital-care.) Not surprisingly, given the picture that health care quality experts paint of the U.S. health care system as a whole, we found that the safety performance of Las Vegas hospitals was alarming. In 2008 and 2009, for example, we identified 3,689 Las Vegas patients who suffered preventable harm, including 2,010 who became infected by one of two nearly untreatable and often fatal bugs: methicillin-resistant Staphylococcus aureus - better known as MRSA - and Clostridium difficile. In 354 of the total cases, the patient died in the facility. With the help of other public documents, we established that only about one in ten of these and other preventable errors was ever brought to the attention of authorities, as is required by state law, much less analyzed for lessons learned.

The real power in our reporting, however, came from the transparency and accountability it imposed on the local health care system. We published the total number of injuries and infections and their rates for each hospital in Las Vegas. Under pressure from hospital lobbyists, the Nevada state government had long refused to do this, as is common in other states as well. But we saw good reasons for naming names. So, for example, we posted a tool on the Sun's website that allows users to compare the rates of MRSA and Clostridium difficile infections in different Las Vegas hospitals. As it turns out, the MRSA infection rates range from 24 per 1,000 discharges at Desert Springs Medical Center, to a "mere" 7.6 at Spring Valley Hospital, eight miles down the road.

To put this more-than-threefold difference into context for our readers, we published a series of accompanying stories pointing out that infection control is hardly rocket science. According to Dr. Peter Pronovost, a professor at Johns Hopkins School of Medicine and a national patient safety leader, prevention of central-line catheter infections involves little more than a simple five-step checklist:

Wash hands.

Wear sterile gloves, hat, mask,
and gown and completely cover
the patient with sterile drapes.

If possible, do not place the catheter
in a patient's groin, where it can
more easily become infected.

Clean the catheter insertion site
on the patient's skin with
chlorhexidine antiseptic solution.

Remove catheters when they are
no longer needed.

After Pronovost partnered with Michigan hospitals to study the effectiveness of the checklist, the reduction in infection rates saved an estimate $100 million and 1,500 lives over just an eighteen-month period. In 2002, Dr. Rajiv Jain of the Pittsburgh Department of Veterans Affairs Medical Center introduced a commonsense method used throughout Europe to drive down the number of hospital-acquired MRSA infections: swab the noses of patients before they are admitted, and if they test positive for MRSA, isolate them from other patients. This simple protocol has reduced hospital-acquired MRSA infections by 59 percent at both the Pittsburgh VA and other hospitals that have followed its example. At some VA hospitals, MRSA infection rates have been lowered to almost zero.

It's still too early to tell how the market share or quality of care at different Las Vegas hospitals may be affected by exposure to our bit of sunshine, but we've already seen the leaders of at least two institutions publicly reporting the errors and infections that take place in their hospitals and vowing to make improvements. Meanwhile, insurance companies can see the same broad disparities in patient safety, and some now use our data to pressure hospitals to improve quality. State regulators responded to the revelations by using our methods to verify our findings in the same billing records, and then launching investigations of the individual cases of patient harm. Transparency is a potent antidote for complacency.

Because of the lack of national standards for measuring and reporting harm to patients, we were unable to show definitively, with a few exceptions, that care in Las Vegas is any more dangerous than anywhere else. It's telling that some leaders of the local medical establishment jumped on this point. "You're looking at the problems in Las Vegas and saying there are problems here, no one is denying that," said Dr. Ron Kline, president of the Nevada State Medical Association. "But the argument would be that those similar problems exist in other places. To some degree you can't eliminate them."

Unfortunately, this attitude is typical among health care leaders. When I showed our data about accidental surgical injuries to Dr. Jim Christensen, an allergist who also oversees quality improvement at Spring Valley Hospital in Las Vegas, he was nonplussed. "I see these all the time," he told me. Asked if he had become inured to the problem, he said that surgery is "like working on the car with the engine going. Sometimes something slips, but they recognize the injury right away and repair it. As long as that doesn't go beyond the published error rate, I'm fine."

What these and many other like-minded health care professionals are saying can be put another way: Never mind that errors committed by individual hospitals might be leading to hundreds or thousands of annual deaths and injuries, or that safety measures put in place by other hospitals show that most of these casualties are avoidable; as long as the rate of medical error or infection at any given hospital is in line with the national average, that is good enough.

Kerry O'Connell, a fifty-four-year-old construction executive from Colorado, scoffs at this mind set. Several years ago he became infected with potentially lethal bacteria during surgery to repair a broken elbow. O'Connell says that it took weeks of procedures to flush out his wound, and months of infusions with potent antibiotics to kill the resistant bug, yet doctors and hospital administrators refused to accept responsibility for the infection. Meanwhile, they charged O'Connell and his insurance company $65,000 for the treatment. Galvanized by the injustice, O'Connell became a patient safety advocate and has adopted a clever prop to get his big point across. When he attends conferences on patient safety, he wears a name tag that says, "The Numerator."

When people inevitably ask him what that means, he launches into the explanation. It's easy to forget, he says, that even in hospitals where medical error rates are no worse than average, the numerator in that ratio "the number of actual people victimized" remains large and unacceptable. "I call infection rates sedatives for health care workers so they can sleep at night," O'Connell said. "They keep tracking these rates and comparing to each other and saying "We're not so bad." But the only thing that counts in the end is how many people got infected."

If the airline industry and its regulators had clung to the same attitude, the average rate of airline fatalities would likely be little better than it was in the 1950s, when flying was at least three times as dangerous, on average, as it is today. It's only human nature to call average good enough, particularly when what you are doing is difficult. Moreover, when people are engaged in inherently dangerous activities that they believe bring great benefit to society "whether it is serving their country in combat, or moving passengers at 600 miles an hour in and out of the wild blue yonder" its understandable that they tend to overlook or dismiss any avoidable harm caused by their actions. Dr. Thomas Lee, an associate editor at the New England Journal of Medicine and a professor at the Harvard School for Public Health, notes how this same process of moral disengagement affects doctors and hospital administrators. They are reticent to acknowledge patient harm, he says, because they're too busy highlighting the diseases cured and lives saved.

To overcome this natural tendency toward moral disengagement - or what safety experts in other fields call "normalized deviance" - we need in health care what the airline and many other industries already have: a process for systematically recording specific errors and near misses and for making them widely known so that everyone can learn from them. Dr. Peter Pronovost, the safety expert from Johns Hopkins, recommends creating a similarly robust, nationwide system for spotting, measuring, and reporting instances or harbingers of harmful care, with spot audits of medical records to assure compliance. This was also a recommendation of the ground-breaking 1999 "To Err Is Human" report. Following the example of the aviation industry (and of the VA health system, incidentally), this system should also include a process that allows people who witness or commit errors and near misses to report them anonymously.

Public reporting will be bolstered, to a limited degree, under the fine print of Obama's Affordable Care Act. The new law says that certain injuries and infections that take place in hospitals will be published on Medicare's Hospital Compare website. Hospitals will also be rewarded or penalized according to how certain readmission rates and hospital-acquired injuries compare to national averages. (As this story was going to press, the Centers for Medicare and Medicaid Services were formulating regulations that go further than any previous efforts, using both carrots and sticks to get hospitals to make care safer.) But here again, the mind set is not zero tolerance of error, but merely a focus on how different hospitals compare to the mediocre safety performance that pervades the industry. Moreover, the new law applies only to acute care hospitals, leaving out nursing homes and other long-term care facilities. It will only include harm to Medicare patients, a subset of the overall population. And the system will not be able to capture some of the most common types of injuries to patients, such as those caused by medication errors.

The provisions of the Affordable Care Act are a step in the right direction, but they don't go far enough. Implementing and operating a nationwide system that captures all harm to patients also requires that the U.S. health care system at last move out of the nineteenth century and replace paper records with open-source, truly integrated information technology of the kind the VA has pioneered. Electronic medical records, if they are written in compatible, open-source computer languages, have the potential to form vast databases that researchers, regulators, and practitioners themselves can easily mine to spot dangerous or ineffective practice patterns. Unfortunately, though many health care providers are busy installing health IT using federal stimulus dollars, most are installing propriety software that will leave data locked in "black boxes" and that have limited value in promoting transparency. (For more information on this subject, see Phillip Longman, "Code Red," July/August 2009.)

Done right, a fully digitalized and integrated medical record system would also by itself prevent many serious errors, such as the thousands that occur every year when pharmacists misread a doctor's scribbled prescription. Lest you think such matters are no big deal, the Institute of Medicine estimates that the average hospital patient in the U.S. is subject to at least one medication error per day (wrong med, wrong dose, wrong time, wrong patient), and that the financial cost of treating the harm done by these errors conservatively comes to $3.5 billion a year. An integrated digital records system would also make it much easier to monitor and curb the overuse of treatments that are both costly and dangerous. For example, Americans are exposed to so many CT scans, many of them redundant, that, according to the New England Journal of Medicine,the resulting radiation exposure may be responsible for as much as 2 percent of all cancer deaths in the country.

With such a robust, data-driven system of safety promotion at last brought to bear in health care, average performance will no longer seem good enough. Health care providers, employers choosing health care for their workers, and patients seeking the best care will all demand more. The benchmark for any given hospital to meet would thus become what it should have been all along: the refusal to tolerate even one case of preventable harm to a patient. Without such demonstrable standards of performance, there is little hope that the quality of health care can improve - whether the system is "socialized," "market driven," or any combination thereof.

Some doctors and hospital administrators will object on principle. When O'Connell, aka "The Numerator," asked his surgeon about the moral implications of billing patients for treatments made necessary by sloppy medical practice, the response he reports receiving was disheartening: "We're like lawyers," O'Connell recalls the surgeon saying. "We just provide services by the hour and sometimes it works and sometimes it doesn't."

Other medical providers live by a higher standard than this, yet many will still raise all kinds of methodological objections. They will say that their patients tend to be much sicker or older than those treated in other hospitals. Or that the reason their hospital has such high infection rates is that many of their patients come from nursing homes, where lethal bacteria are rampant. (In the case of our investigation, I always pointed out that we were reporting the infections that their own employees had marked as not present at the time the patient arrived, meaning they were acquired in the hospital itself.) And to be sure, certain risk adjustments do need to be made in comparing the performance of one hospital with another.

But these are adjustments that can be made, and made all the more fairly and definitively the more data we have about just who is receiving what treatments and with what results. In no other realm - certainly not any as inherently dangerous as health care - do we accept the argument that meaningful comparisons of results are impossible just because those being compared face somewhat different circumstances. Some airports have shorter runways and are more congested than others; some have to deal with frequent snow or thunderstorms, nearby mountain ranges, or lakes and rivers that attract unusual numbers of flocking birds. No two are exactly the same. Yet we don't therefore conclude that there is no point in comparing the safety record of one airport versus another, much less say that it is acceptable for a certain number of people to be routinely killed on approach or takeoff. We demand that all airports, and everyone else involved in aviation, do what it takes to get accidents to as close to zero as possible, and that they use reams of performance data to make that happen.

Moreover, it's not just the outputs of different health care providers we are concerned with, but their inputs as well. You say many of your infected patients are coming from nursing homes? Why not hold them to higher standards? Why are you not doing what the Pittsburgh VA is doing and testing all your patients for infection before they get out on the wards? Why don't you have sensors in hospital rooms, as some hospitals now do, that sound an alarm if anyone exits the door without having first washed his or her hands? For that matter, why not take up the suggestion of Paul O'Neill, the former treasury secretary who pioneered industrial safety as CEO of Alcoa and is now a leading voice on patient safety: have a big sign posted at the front door of the hospital, as nearly all factories and construction sites do, that reminds workers as they come on each shift just how many days it has been since the last medical error or hospital-acquired infection? In short, just exactly what have you done to promote a culture of safety?

Experience has shown that when hospitals and doctors can answer that question forthrightly, and when they are open and honest about their mistakes and show they are taking steps to fix them, they are much less likely to face malpractice suits. In 2004 the University of Illinois Medical Center in Chicago began flagging cases of harm and unsafe conditions that could cause injuries - up to 7,000 reports a year. It also began admitting and apologizing for its mistakes, conducting investigations of harmful incidents that are open to patients and their families, and even offering financial compensation when necessary. The program has lowered the number of malpractice claims and the amount of payouts, while increasing trust and leading to hundreds of patient safety improvements. The hospitalâ€™s methods boil down to what any one of us would instruct a child to do when he makes a mistake: stop making excuses, and take responsibility. The facility is now considered a national patient safety pioneer, and its methods are being expanded through a federal grant to nine other hospitals in the Chicago area.

This is what current best practices in patient safety look like. They could be even better if consumers and medical experts had the data they need to determine each hospital's progress in promoting safety. We know this works in other inherently dangerous industries. Why should health care be an exception?

We all understand that medicine is increasingly complicated and that hospitals are increasingly filled with patients who would have died years ago were it not for the wonders of modern medicine. But the Hippocratic oath says, "First do no harm." Precisely because health care is becoming more and more complex, and therefore inherently dangerous, it will continue to cause more and more and more deaths and injuries until we put safety first.

THE UNNECESSARY TORT REFORM "WAR" BETWEEN DOCTORS AND LAWYERS

Anthony "Tony" Palumbo, Esq. — Mon, 07 Mar 2011 17:24:00 GMT

Palumbo Wolfe & Palumbo, PC founding partner, Tony Palumbo, was recently asked to speak to the physicians at the Western Surgical Association about medical negligence lawsuits. Mr. Palumbo took the opportunity to discuss how the insurance lobby's self-serving propaganda efforts have led to an unnecessary "war" between doctors and lawyers.

Here is what Mr. Palumbo had to say:

VETERAN’S DAY

This is veterans day. I would like to take this opportunity to acknowledge all you veterans out there. Especially those of you who served as medics or medical officers in Vietnam and other combat zones. I know full well what it was like in the Mekong Delta in 1969 and 1970. I know the challenges of responding to a firefight. I know the sacrifices that working in a war zone required. You have my personal debt of gratitude for what you did. Thank You sincerely.

TOPIC OF DISCUSSION

I come here today, 34 years later, to speak to you of another type of war zone. A battlefield involving our two esteemed professions. A battle that has reached such vehemence and rancor that it belies the usual intelligence and objectivity that typically characterizes our respective professional efforts.

The subject of tort reform is a serious one. To you, to me, to your patients and to my clients. It is a subject which evokes strong emotions. A subject which at times becomes irrational because it strikes hard at things which are important to all of us: our dignity, our integrity and yes, our pocket books.

My business is persuasion. And yet, I doubt that I’ll be able to persuade you of anything here today. Yet, I know that you are all very bright people. Bright people are usually open-minded. They will at least listen. I hope you will do that….listen. With an open mind. Take these comments home and think about them. See if they make sense and then do with them what you will.　

Philosophy Not Statistics

I have been provided with statistics and figures to support an argument that would contradict the notion of a malpractice crisis (should it be more accurately termed an "insurance crisis") and certainly the belief that such a crisis can be solved by tort reform. But, where would that take us? I really would prefer to take these comments to a different level. I want to talk to you about less tangible things such as ideology, philosophy, values and concepts. Because I think we need to divorce ourselves from the emotional rhetoric which has driven a wedge between us. Rhetoric which has encouraged us to take on a victim’s posture when in reality there are very few of us who know personally what it is to be a victim.

I think we all can agree that extremism and zealotry is dangerous in any form, whether it is racism, radical social, religious, economic beliefs or anythingelse. It promotes intolerance which then begets irrationality. It seems to me that the issue of tort reform has engendered such a level of zeal that our perceptions of reality have suffered from emotional blindness. In his correspondence to me, Dr. Thirlby told me that "Obviously, you will have a target on your back…I cannot guaranty their civil behavior…" I hope he was kidding. But, many a true word is spoken in jest. We all know that there is some truth to those concerns. It is that which I hope to mediate by my comments today.

RESPONSIBILITY, ACCOUNTABILITY, JUSTICE

And so, I want to talk to you about responsibility, accountability and justice. Is there any of you who feel that you should not be accountable for your actions? Of course, not! Are the any of you who believe that you should not be responsible for any damage you might cause? Isn’t it a basic tenet of morality that we must face the consequences of our deeds? And isn’t the converse true? That those who suffer from our acts deserve vindication? restitution? justice?

Ladies and gentlemen, that is exactly what our system of civil justice is designed to accomplish. It is a dispute resolution mechanism in a civilized society. We have come a long way from the Hatfields and the Mc Coys. Vigilante justice is no longer necessary, much less tolerated. We no longer require an eye for an eye. But, at a time not so long ago, it was common practice to take the law into one’s own hands. Why? Because it is inherent in the nature of a person victimized to want and need retribution.

V. VICTIMS NEED THE JUSTICE SYSTEM

I suspect that most of us in this room have been blessed with success beyond belief. Because of our affluence we have been able to avoid the victim’s role throughout our lives. We can purchase the best of products. We can afford the finest of legal or medical services. Because we are well connected we can call upon the best doctors, lawyers, bankers etc. We get all the attention that we need under the best of circumstances.

Very few of us need the affirmation of our basic worth oftentimes provided by the civil justice system. Perhaps, that is why it is so easy to call for tort reform and a cap on damages. It is hard to project yourself into a situation where you might need the vindication that the justice system can provide. You can’t appreciate its importance and impact until you need it. Unless you can experience what the victim experiences, you can’t understand his need for an exoneration of his rights.

A perfect illustration of this concept comes from Matthew Mc Conaughey’s closing argument in Grisham’s movie adaptation of A Time to Kill…….

It is not until you can place yourself into that very mindset that you can appreciate why it is so necessary to allow a victim a full measure of retribution. Anything short of that would be an insult, a slap in the face. Try to explain to the father in A Time to Kill why his black daughter didn’t deserve the same type of judicial vindication that a white girl would receive in the deep South. Similarly, try to explain to a 35 year old Hispanic homemaker why her breasts are worth only $250,000 when she underwent an unnecessary bilateral mastectomy. Or how about the parents of the little girl at Duke University who was given the wrong organ transplant? And the examples go on and on.

Is it because they are the poor, little guys that they get the short end of the stick? Is it because they can’t afford the type of medical service and legal advise that you and I can purchase that they are asked to settle for inadequate retribution? How would anyone in this room react to those artificial circumstances?

RIGHTS AND PRIVILEGES TAKE ON A COMMENSURATE DUTY

It is rightly said that to whom much is given, much is expected. I suggest that this applies to all of us in this room today. We have been educated and trained at the highest levels of institutions. We have been mentored and guided by the best and the brightest. Indeed, we have even become among the best and the brightest. If that is true then don’t we have a responsibility commensurate with our status?

Why then, do some of us seek even more privilege than we already have? If morality demands that we be responsible for our mistakes, then why do we seek to minimize that accountability to the detriment of those less fortunate than ourselves? Is it fair for any group to obtain special privileges at the expense of others? Isn’t there a price to be paid for all favors bestowed? And if there is such a price shouldn’t we be certain that we get what we pay for?

VI. ARE LIMITATIONS ON DAMAGES REALLY WHAT YOU SEEK?

I think it is necessary to engage in some deep introspection here and to ask yourselves whether it really is a limitation on damages that you seek or whether there is another, unstated motive behind these proposals. If you are honest with yourselves perhaps you would admit that there is an underlying agenda here. One which cannot be stated expressly because it is essentially inimical to the philosophy and concepts that we have previously discussed.

It is fair to say that NOONE likes to be criticized. We all perceive ourselves as motivated towards and acting in good faith. Nobody intentionally seeks to harm another. Combine that with the fact that all of us are decision makers. Each of us is in control of our environment to a greater degree. We all have authority and are accustomed to exercising it and having it respected. Then add to that our privileged economic and social status. The product is a perceived immunity from criticism. We all feel it. It is a fact of life. It is nothing to be ashamed of. But this perception is, I submit, really at the heart of this clamoring for tort reform. How dare they have the audacity to challenge who I am and what I do? Isn’t that your reaction when you contemplate the prospect of a medical negligence claim? It’s OK if it is. But, it’s important that you realize your thought process. Because when you do, you will have to admit that perhaps it isn’t a limitation on damages that you are after but, rather, the dismantling of the system which seeks, however imperfectly, to hold you responsible for the mistakes that you make.

Otherwise, how can you defend what is nothing more than an arbitrary imposition of unrealistic standards on something as important as another human being’s right to be vindicated? Think about it. Is it caps that you are interested in? Or is it the hope that eventually all of this will go away because the economics won’t support the costs of bringing such claims. Is that really what you want? Some kind of impunity through immunity?

VII. BE CAREFUL OF WHAT YOU WISH FOR

Finally, I would ask you to be mindful of the admonition that your mothers must have given you many years ago. Be careful of the company that you keep. You are judged by those with whom you associate. Perhaps the term "strange bedfellows" comes to mind.

Simply stated, can you really trust the insurance companies with whom you have become aligned? Is this monolithic industry no longer the antagonist to all those who find its services so necessary yet so unyielding? Think about your own experiences with its many tentacled outreaches. From your auto and home owner’s coverages to any disability or other type claims that you have had to make. Haven’t you seen enough? Are they really your "good neighbors"? Can you trust their "good hands" to treat you gently and sensitively? Are you satisfied with their reimbursements? Do you think you have NOT been exploited by their premium pricing over the years?

If you have any doubts about those experiences, shouldn’t you also have doubts about what they now tell you regarding this alleged malpractice crisis? Might it be more appropriate to label it an "insurance crisis" and then seek remedies consistent with it real nature?

Thank you for listening.