Archive for June, 2009

Professor Epstein’s agenda: cut off patients’ access to the courts

Usually the false platitudes about the civil justice system are found on the talk radio and no-news cable sources. But here is a stunning one-sided view of the civil justice system from a law professor.  According to law professor Richard Epstein, the civil justice system fails in its ability to handle malpractice claims.

Professor Epstein apparently dislikes the jury system.  That’s a fairly radical and unAmerican place to start, as both the U.S. Constitution and the constitutions of the various states enshrine the right to trial by jury as one of the fundamental American rights. I imagine that even the Professor recalls his history that our founders viewed that right as one of the best defenses against the tyranny of the crown.

To be sure, the crown today is not worn by a monarch. Instead, today money is king. The right to trial by jury levels the playing field between the wealthy and middle class. Prof.  Epstein is pushing uphill against a fundamental right. Tough place to start, professor.

Beyond philosophy, there are particular problems with Prof. Epstein’s analysis. For example, he embraces the English loser pays rule as an equitable approach.  But he neglects to acknowledge that the English have come to the conclusion that the loser-pays rule is unfair and should be discarded. Loser pays discriminates against middle- and low-income patients and raises the risk of higher legal costs.

The professor is apparently concerned with meritless medical lawsuits. He misses the mark on that as well. While some cases go forward that should not, Professor Epstein fails to acknowledge that more frequently, juries fail to award damages in cases in which there was an injury caused by a doctor’s error.

The professor proposes caps on damages. What he fails to acknowledge is that such caps discriminate against older workers. As well, many states have declared caps unconstitutional because the states decided long ago to entrust such matters to juries, not to lobbyists making one-size-fits-all rules about damages in all cases.

Professor Epstein confuses the macro with the micro. He is happy to selectively argue numbers, but he ignores the toll of preventable deaths in the medical system. Here is a number that he overlooks. In a two year period, a single type of error–failure to recognize and treat complications in a hospital setting–resulted in a reported 188,000 deaths. One can treat that as a dollars and cents problem, but it is far more accurate to look at the 188,000 family tragedies before declaring that we have a cost problem that can only be fixed on the backs of patients.

I have little patience for law professors who live in ivory towers. Let Professor Epstein face a family who has lost their mother to preventable medical injury. Let him hear from parents who buried their kids who died due to callous mistakes. Let him understand that these statistics have faces and stories.

Those of us who dare to try cases against physicians and hospitals take on some big challegnes. Jurors don’t want to believe that a doctor made a mistake. They don’t want to have to question the care that they get from their healers. This is good and right. But even so, no one–not even a law professor with all the answers–should confuse the cold comfort of cost-benefit analyses, numbers and statistics with the tragedy of profound injury.

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Single best news report on KBR exposing soldiers to chromium 6 in Iraq

Worth reviewing is this piece on the KATU website regarding National Guard troops’ exposure to hexavalanet chromium in Iraq in 2003.  Includes quotes from KBR officials.

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Bill to fund medical treatment for poisoned Oregon National Guard members still moving forward

In the waning days of the Oregon Legislature, word comes from Rep. Chip Shields that legislative help for poisoned Oregon National Guard veterans is still moving forward. HB 3480 creates a fund to provide future medical care for Oregon Guard soldiers who were exposed to hexavalent chromium while serving in Iraq in 2003. Here is a link to the current version of the bill. A minor disclaimer: this is only the version current as of the time I write this post. I imagine it will change before things are done.

Unfortunately, the state of Oregon’s economy and budget leaves little to fund the problem. Those of us familiar with the Oregon legislature know that things happen in steps and cycles. As a result, the first step of setting up the fund is the most critical. Finding more funding will have to come in the next cycle. It’s a longterm and on-going problem, so it’s best viewed as major progress.

I got a voice mail from Rep. Chip Shields late last night updating me on the bill’s progress. He remains optimistic that it will pass. A few things worth noting. Rep. Shields has been a terrific advocate for our soldiers.  As one of the lawyers representing sick soldiers, I can only offer my thanks. Thanks are due, also, to co-sponsors of the bill, Reps.  Barton, Matthews, Barker, Gelser, Kahl, Stiegler, and Vanorman.

Rep. Shields and his colleagues’ diligence and hard work merits comment. Moving any revenue bill in this environment is a minor  miracle. While it’s not done yet, simply taking it on has tremendous benefits. Rep. Shields has pushed the issue to the forefront and given needed assurance to our vets that they don’t walk alone.

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Oregon National Guard hexavalent chromium poisoning case moving forward

It’s just underway, and it promises to be a long fight. Even so, I’m proud to be part of the legal team representing Oregon National Guard soldiers exposed to hexavalent chromium at the Qarmat Ali facility in Iraq. The case involves KBR’s responsibility for leaving our soldiers in harm’s way.

The chemical compound is profoundly toxic. It causes all sorts of problems. KBR did nothing to inform Oregon soldiers of the hazards and covered up the danger when a few brave employees tried to blow the whistle.  Still new to this version of WP, so I can’t seem to upload the complaint, but you can find a link to the pdf here, if you are interested.

At this stage, I’m interested in talking to Oregon Gurad members who were at Qarmat Ali in 2003. My contact information should be available at the contact button up on the right.  (Matt is still tweaking things a bit, so it might not be there right when this is published.)

I’ll do my best to update with public information on this blog. Feel free to subscribe if you’re interested in this case.

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It’s time to be more focused in my law practice and writing, and for that reason, I’m launching this blog focusing on personal injury law.

That’s a lousy topic title, by the way. But law is nothing if not conventional, and that is the convention. I’ll be writing about cases and legal developments, safety tips for consumers, and issues like that, as I get this underway.

Special thanks to my good buddy Matt Schulte at Unified Studies for the design work and coaching.

For those interested, I also maintain a blog on class action issues, the other major area of my practice. Feel free to drop by, subscribe, or ping me with a question.

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