April 2009

There is a new story on dallasnews.com which discusses new evidence that malpractice damage caps are not a fix for high health care costs.  The argument advanced by tort reformers in the halls of Congress, as well as the halls of state legislatures all over the country, is that 1) doctors pay high premiums to insurance companies to protect themselves against malpractice suits, and 2) the cost of these premiums are passed on to consumers, which makes health care more expensive. 

Texas passed a medical malpractice lawsuit cap in 2003, limiting the amount of general damages (non-economic damages such as pain and suffering, loss of enjoyment of life, and mental anguish) to $250,000, no matter how egregious the harm done to the patient.  According to the article, the law produced a 30 percent drop in doctors’ mapractice insurance premiums.

 However that has not translated into lower medical costs for consumers.  The cost of medical insurance premiums rose faster than earnings in Texas.  According to Families USA, health care premiums in Texas rose a whopping 86.8 percent betweem 2000 and 2007.  Medicare spending in Texas increased 24 percent in the three years after the cap was passed. 

A study published in December 2008 in the journal Health Sciences Review, found that “(t)ort reforms have not led to health care cost savings for consumers.”  The study asks the question “(a)re there other benefits (from tort reform) to consumers? If these cannot be identified, it is difficult to see a justification for the loss of legal rights.”

The benefits acrue to the insurance companies who do not have to pay for the damages covered under their policies.  Those hurt are not people who have small injuries and heal up from the malpractice done to them.  Those who are damaged by the cap are the severally injured, who then become a burden on society, because the person who caused their injury is not having to pay for the damage they have done.

According to a story on philly.com, a jury in Freehold, New Jersey found a truck driver liable for a traffic accident, where the trucker had no physical contact with the other vehicles in the accident.  The truck driver was stopped in traffic and Thurman Baker, the driver of the car involved in the accident, was in a parking lot, trying to enter the roadway.  The truck driver waved Baker’s car across the lanes of traffic, where the car was hit by a motorcycle traveling in the other lane of travel.

The trucker told an officer at the scene he waved for the driver to enter into the highway, the sign that it is clear to go, but then later changed his story.  The jury in the case awarded the victim $1.5million.  His injuries included a concussion, permanent damage to his arm and five cracked teeth.

According to a story on the Houston Chronicle website, consumers are beginning to fight back against debt collector harassment.  Statistics from the Federal District court in Houston show a 60% increase in these types of suits in the first quarter of this year.   

The story says Texas has especially strong laws to protect consumers from harassment.  In one case, a man won a $1 million judgment against a debt collector who harassed him.  The debt collector was trying to collect $2,700 owed on a Visa card.  The collector told the debtor he had taken out a contract on the debtor’s life and also called a bomb threat into the debtor’s workplace.  In another case, a woman was awarded $15 million, after debt collectors, trying to collect a relative’s debt, threatened that the woman would be arrested.  The woman turned herself into authorities. 

There is a federal law, the Fair Debt Collection Practices Act, that prescribes the activities a debt collector is allowed to take, in pursuing a debt owed by a consumer.  The Act applies to collectors, not the actual party the debt is owed to.  For instance, if you owe Joe Smith Inc., and he hires a debt collection agency or an attorney, the act applies to actions of the people he hires to collect the debt, but not to Joe Smith Inc.  There are also instances where state law might have greater remedies than federal law.  State consumer protection laws vary from state to state.

One person quoted in the story opines that the rise in suits could be linked to the fact that debt collectors are hurting in this economy and presumably, are turning to harsher tactics in trying to collect debts.

According to an article on the Baton Rouge 2theadvocate.com webpage, the system Social Security uses to administer disputed disability claims is severely backlogged.  This is nothing I didn’t know already.  I see it in my practice every day.  I represent people in Social Security disability cases who have an average wait time of anywhere from one year to two years, in this district.  That wait time is from the date of denial of a disability claim to the date of hearing on the claim.  After the hearing it can take anywhere from a couple of weeks to several months to get a decision from the ALJ.

The story quotes Social Security Administration officials, who claim the backlog is the result of underfunding and under-staffing at the Agency, as well as a dramatic rise in the number of cases, and an increasing number of cases dealing with what they call “hard to  prove ailments”, such as back pain, depression  and anxiety.  The thing to remember is that as our society ages, a huge number of baby boomers are moving into their 50’s, an age when major injuries and illnesses can cause disability.  The number of disability cases in the next 10 years should increase significantly, over and above the already high numbers.  The system needs help right now, to clear out the backlog, as well as to prepare for what will become even greater numbers of disabled people in the future.

Nearly 2/3 of applicants for Social Security disability are denied on their initial application.  The next step after denial is to file an appeal and appear for a hearing before an administrative law judge.  Almost 75% of people who hire an attorney win their appeal at the hearing level.  Last year the average wait time for a hearing was one and a half years.  

According to the Administration, the number of people on SS disability is 7.4 million, double the number of people who were on disability in 1990.  In contrast, the number of staffers at the administration is down by five percent.  Obviously a 50% increase in workload and a 5% decrease in people working the claims is a recipe for disaster.  The administration is working on ways to streamline the process.  They recently hired more judges and staff.  Extra funds were allocated to the administration in this year’s budget.  The administration has an electronic records system, to store and manage medical records and other documents more efficiently.  They are also experimenting with video conferencing systems which would allow attorneys to attend hearings via video conferencing equipment in their offices, which will hopefully expedite the hearing process.  

The newspaper article shares the story of a person who has been waiting several years for her determination.  This is a story I hear on a routine basis.  It is worth the efforts of congress and the administration to fix this system, and speed up help for those among us who are in dire need of help.

According to the Chicago Tribune, a jury in Will County, Illinois awarded a $24 million verdict to the families of two people killed, as well as another person who was seriously injured, in a multiple car/eighteen wheeler crash in April 2004.  The verdict was rendered against C.H. Robinson Worldwide Trucking, a Minnesota trucking company, and the truck driver, DeAn Henry. 

A story on Chicagosuburbannews.comsaid that Joseph Sperl was on I-55 the day of the accident, slowing in traffic, when his car was hit by the tractor-trailer.  Mr. Sperl was killed in the accident.  The tractor-trailer also hit a car driven by Thomas Sanders, who lost his life in the accident.  Five other people were injured in the accident that day.

Henry, the driver of the tractor-trailer, subsequently plead guilty to charges of driving on a suspended license and falsifying her log book, in relation to the accident.  The $24 million verdict was the highest verdict in the past fifty years in Will County.