Today’s New York times carried coverage of the decision of a Long Island school district to rescind off-campus lunchtime driving privileges for seniors after a fatal accident last fall took two lives. This is a tough call for any school, but the literature supporting safe teen driving tends to support closer scrutiny of this privilege.

Not surprisingly, the students view driving off campus as a right - rather than a privilege. After all, many campuses have been open for older students for years. Despite the claim that closer regulation isn’t fair, one thing is clear. This is a driving situation that by its nature doesn’t begin or end at home. That means that a parent can’t supervise things like the number of passengers, seat belt usage, cell phone usage, or substance abuse. Add in the time constraints of returning to school before the lunch period is over and it is a formula for disaster.

I know that these are kids who will be making all of their own decisions in a few months whether at college, in the military, or in the workplace. But the time and place to let them test their wings isn’t when they’ll have plenty of peer pressure and have the responsibility for machines where a bad decision or a distraction can result in total loss of control.

The article in the Times really talked about this issue as though the privilege to drive is an all or nothing proposition. Perhaps this has to become part of a broader safe teen driving dialogue. Why not contract with these kids with clear sanctions if the privilege is abused or if grades drop?

As long as motor vehicles remain the number one cause of death for America’s teenagers, there is ALWAYS more we can do to expand the process of educating our youngest drivers. Off-campus lunches might be a great way to help convince kids that when it comes to driving, there is no free lunch.

A letter to the Editor in this morning’s Philadelphia Inquirer from Peter Lund, President of the Pennsylvania Medical Society, and Enrique Hernandez, a member of the Medical Society’s Board utterly missed the point about why Pennsylvania’s uninsured patients need health insurance. Rather than focus on the patient and the need to improve health care for all Pennsylvanians, they’re using the health insurance issue as a vehicle to trot out old, universally discredited calls for tort reform instead of focusing on the need to get health insurance for our uninsured.

Apart from the fact that medical malpractice insurance has nothing to do with health insurance for our needy citizens, they have relied on hollow logic. Let’s get one thing straight: Pennsylvania has not “lost more than 1,600 physicians…during the last two licensing renewal cycles.” How do we know that?

• Governor Rendell has repeatedly called on the Medical Society to prove evidence - not anecdotes - to support this claim. THEY’VE NEVER BEEN ABLE TO SHOW A SINGLE STATISTIC! Nor have they even had the courtesy to respond to the Governor’s requests.
  
• by law every doctor in Pennsylvania must be licensed and must pay for insurance through the state’s M-Care Fund. The M-Care Fund’s numbers DO NOT support any decrease in the number of Pennsylvania doctors.
• Last October, Governor Rendell declared Pennsylvania’s medical malpractice crisis “over.” This was reported in the same paper that carried the doctor’s renewed calls for tort reform.
• Pennsylvania Supreme Court Chief Justice Ronald Castille (a Republican by the way) issued a press release on April 14, 2008 confirming a continuing decline in medical malpractice case filings and verdicts. Castille called this information “additional evidence that the sharp drop in medical malpractice litigation, which began in 2003, was not a temporary correction, but a sustained response to the procedural rule changes adopted by the Supreme Court and the statutory changes enacted by the General Assembly.”

That’s the evidence. What evidence can the Medical Society provide to support their calls for tort reform? Nothing.

So we have to ask what’s this really about? If it’s hard for doctors to treat uninsured patients (read: the doctors don’t get paid) and they think their malpractice insurance premiums are too high (read: they’re paying too much to buy insurance) then isn’t this all about money? Of course. The doctors’ real gripe should be with their own insurance companies who charge them high premiums even though the “risk” - the amount of money paid out according to the evidence - has decreased dramatically since 2003.

As Governor Rendell explained last October when he was asked about doctors supposedly leaving Pennsylvania due to malpractice costs, “There’s been no mass exodus…That was all perpetrated by people for political reasons.”

Instead of taking on powerful corporate interests like the insurance lobby, the doctors are focusing instead on the voiceless: those injured by medical errors. They would sooner take away important legal rights than pitch a battle against the real culprit. If that’s their interpretation of “do no harm” then Hippocrates must be rolling in his grave right about now.

It happened yesterday - and my 16 year-old would be mortified if she knew I was blogging on it - my daughter was asked to the prom. In the same week when I first took her driving, this was almost too much for one father to bear!

What it brings to mind is the utmost level of caution that kids need to exercise this time of year. I’ve had to blog about local young people dying in car accidents too often: the post-prom accident in 2007 that killed the Little Flower High girls (http://www.shragerlaw.com/blog/?p=212); or the Germantown Academy student who died in February (Auto Accidents and Trucking Accident Update for Philadelphia, Pennsylvania).

This needn’t happen. So here’s what we, as parents, have to do. First, recognize the risks. Children’s Hospital in Philadelphia has done extensive research among teens. 53% of teens have seen passengers of teen drivers drinking alcohol or smoking pot. So don’t say it’s not my child!! Do you want to take a 50/50 chance that it is? Second, communicate with your child. Make clear agreements about safe car use. Finally, get involved. If parents are willing to engage in the process and chaperone or stay up and volunteer to drive, even illegal behaviors won’t turn into dangerous driving behaviors.

Enjoy the prom, and be there to tell me about it in the morning!

Your world shook today…but you probably missed it. If you’ve ever taken a prescription medication, and you relied on the pharmaceutical manufacturer to fully study the safety and effectiveness of the drug before seeking FDA approval, you should be really nervous right now. Today’s Journal of the American Medical Association (JAMA) had two articles and an editorial which state a compelling and shocking case of ghostwriting and guest authorship by Merck & Co. regarding Merck’s blockbuster drug Vioxx (rofecoxib).

I have to quote this or you won’t grasp the seriousness of what has just been disclosed in one of the country’s leading medical journals: “This case-study review of industry documents related to rofecoxib [Vioxx] demonstrates that Merck used a systematic strategy to facilitate the publication of guest authored and ghost written medical literature.” (emphasis added). Was this outrageous? Don’t take my analysis for granted. Look at the characterization of the editor-in-chief and the executive deputy editor of JAMA in an editorial: “[these articles] provide a glimpse of one company’s apparent misrepresentation of research data and its manipulation of clinical research articles and clinical reviews.” (emphasis added).

Why is this wrong? Let’s put it in very simple terms.  In school, if you had a paper due and you turned in someone else’s work product and you didn’t disclose that it was the other person’s work, what was that called? Plagiarism…cheating…honor code violation. Pick your term, it’s all the same thing.

What Merck did was far worse because it was in support of a blockbuster drug that made the company billions of dollars.

This conduct will have even greater impact because the new “Bush” majority on the Supreme Court, led by Chief Justice Roberts, has been ruling on a rash of cases where the drug companies and medical product manufacturers are seeking legal protection from lawsuits if their product has FDA approval. This legal protection, called “preemption”, is at the core of recent Supreme Court rulings which have drug and medical product makers absolutely gleeful.

The Supreme Court is granting this bar to private lawsuits because the way the court sees it, drugs and medical products go through an FDA premarket approval process which the court calls “rigorous.” (page 4, Riegel v. Medtronic, Inc opinion, February 20, 2008).  In this process, “a manufacturer must submit what is typically a multivolume application…[which] includes, among other things, full reports of all studies and investigations of the device’s safety and effectiveness… .”

Put that in the perspective of what JAMA published today and you’ll see that the Bush/Roberts Supreme Court is letting the foxes guard the hen house and there’s nothing you can do about it.

What’s even more remarkable about these articles is that they were published by the official journal of the American Medical Association (AMA). If you’ve read this blog before, you’ll know that the AMA is no friend of trial attorneys like me. In fact, they lobby pretty hard to limit lawsuits for people injured by medical care. But these articles were only possible because of documents uncovered in the Vioxx litigation! Play this out a bit further. Given what the Supreme Court is doing with preemption, there won’t be future lawsuits like the Vioxx litigation and the ability of doctors to figure out that a manufacturer is phonying up literature in support of a blockbuster drug will disappear.

Merck’s press release in response was almost sickeningly predictable. They called the articles in JAMA - that’s right in JAMA - false and misleading! Instead of attacking the physicians who wrote the articles, Merck tries to blame this on trial lawyers. All I’ll say is who do you trust here, the independent, well-respected medical journal, or the profit-mongering company that’s trying to defend its corporate reputation? Okay, I’m giving my bias away in the way I phrased the question.

Next time a Presidential candidate has a town meeting near you, why not ask them if they believe in protecting this kind of conduct by big pharma?

My hat is off to Senators Martinez and Kohl for introducing the “Fairness in Nursing Home Arbitration Act” in the U.S. Senate on Wednesday. This is a “call your Senator and urge him or her to support this bill moment!

What’s bad about mandatory binding arbitration in nursing home contracts? For starters, how about the relative inequality in bargaining power between the big corporate nursing home and the person who is doing everything he or she can to secure a nursing home placement for a loved one? IfI hadn’t experienced this exact situation with my own father, I might tend to discount the pressure a family member faces at the time of nursing home admission. All I know is that I had a huge stack of papers which would arrange payment, assign Medicare benefits, confirm my status as power of attorney, etc., in front of me and I had to sign so my father could be admitted. I can assure you, there was no “meeting of the minds” (the law school definition of when a contract is formed) on any of the pre-printed forms.

You know, it wasn’t just me. In an article in the Wall Street Journal, the country’s largest private arbitration company - the American Arbitration Association (”AAA”) - said they frown on agreements like this in nursing homes. Why? Easy, they realized that patients “really are not in an appropriate state of mind” to evaluate these contractual clauses.

So why are the nursing home companies trying to slip them into every contract? They don’t want to pay as much in damage awards when their negligence injures you or a loved one. It’s clear from the coverage in the Wall Street Journal that this is all driven by the bottom line. Don’t kid yourself for a minute. Money saved in lawsuits isn’t going into patient care, it’s going to the corporate bottom line!

What can you do? Call your senator now. Also, consult with counsel before giving anyone a power of attorney to handle your personal affairs. These contracts frequently take your constitutional rights away. Be careful before you or a loved one sign one of these admission contracts; if you have questions, call a lawyer.

HealthGrades, a private corporation that rates healthcare organizations, has just released its annual “Patient Safety in American Hospitals Study.” Among the headline grabbing conclusions is that from 2004 through 2006, they found that there were 238,337 “potentially preventable deaths” among the 41 million Medicare patient records reviewed.

What were the most common medical errors?  Bed sores, failure to rescue, and post-operative respiratory failure, which accounted for 63.4% of the incidents that HealthGrades called “potentially preventable.”

Why is this significant? Because one of the conclusions in the report is that if all hospitals gave care that was as good as the top 50  “DistinguishedHospitals” they conclude that approximately 220,106 patient safety incidents and 37,214 deaths could have been avoided. From a purely financial perspective, HealthGrades concluded that nearly $2.0 billion in healthcare expenditures could have been avoided.

Most people just don’t understand that it’s not lawsuits that are raising the costs of healthcare - it’s the cost of unsafe care. We have a number of clients who have developed bed sores (also known as pressure sores or decubitus ulcers) in hospitals and in nursing homes. The cost of healing those injuries is staggering. Unfortunately, some of our clients don’t survive those injuries.

Is there a bright side for my fellow Pennsylvanians? Actually, yes. Of the 50 hospitals on HealthGrades’ list of “America’s 50 Best Hospitals”, seven are in Pennsylvania. I’m willing to give credit where it is due so congratulations to Easton Hospital, Lancaster General Hospital, Lehigh Valley Hospital, Main Line Hospitals-Lankenau, Mercy Hospital Scranton, and St. Luke’s (Bethlehem and Allentown) on making this year’s list.

There is good news and bad news on this front for those of us in Philadelphia and the surrounding communities.

First the bad news. Late last month we woke up to the news that a 17 year old Germantown Academy student was killed in a two car accident on one of the roads adjacent to Germantown Academy. From the press reports, it sounds like he was a popular student and an accomplished athlete with a very bright future. Unfortunately, the preliminary accident reconstruction reported that he lost control of his car and spun across the road as a result of excessive speed.

I only wish that this young man had heard the talk that I gave at Germantown Friends School one evening during Teen Driving Safety Week, October 15-20, 2007. I’m proud to report that I’ve been invited back to Germantown Friends School to repeat my presentation in a mandatory assembly for the 10th graders later this month.

There truly has been some good news in the law regarding auto accidents and truck accidents for those of us who drive in this region. Beginning March 1, 2008, New Jersey law has set a benchmark that all 50 states should follow immediately:

• It is now a primary offense to talk on a hand-held cell phone while driving
• It is also illegal to text message while driving

All I can say is “way to go New Jersey!” Those of you who follow this blog know that driving safety, and in particular teen driving safety, is a bit of a personal mission of mine.  New Jersey has now taken important steps toward making the roads safer for all of us.

One last point on teen driving safety: it is the leading cause of death among teens in this country. Every year, over 5,100 teens (this doesn’t include children under 13) die in accidents. We can and must do more to protect our youth. If a disease were taking this many young lives, the flow of federal research money would have major hospitals around the country trying to find a cure.

So I’m doing my part as a trial attorney. I speak anywhere and everywhere I can on this subject to help educate young people. I urge my fellow trial attorneys to do the same thing. I also urge our legislators to recognize the bipartisan nature of this issue and reach across the aisle to your colleagues to commit greater resources to educating all drivers about the dangers on the roads and how to reduce the danger so you and your loved ones make it home safely.

The “I couldn’t make this up if I tried” file just keeps getting bigger.

In an article in U.S. News & World Report (on-line version available February 22, 2008), Bruce Yarwood, President of the American Health Care Association, admitted that some of his organization’s member nursing home companies have begun “shielding themselves from liability… [by] setting up different organizational structures. ” That means that the corporation that might be licensed to provide nursing home or assisted living services to you or a loved one has set up an elaborate web of shell corporations so that if you try to hold them legally accountable for negligence that led to bedsores (decubitus ulcers), falls, fractures, malnutrition, or dehydration, they’ll claim they have no assets and tell you there’s nothing to fairly compensate you for your injuries! These are all very common injuries in nursing homes: http://www.shragerlaw.com/html/nursing_home_neglect.html . This is reprehensible and it is one of the worst examples of corporations and their highly paid CEOs putting profits over people and patient safety.

So who is the American Health Care Association? According to their website they are an association of “more than 10,000 non-profit and for-profit assisted living, nursing facility, developmentally-disabled, and subacute care providers that care for more than 1.5 million elderly and disabled individuals nationally.” That’s a lot of assets to hide!

Fortunately, help is on the way. The same article also reported a bill in the U.S. Senate titled the “Nursing Home Transparency and Improvement Act” which, if passed, could remedy this situation. The bill was jointly sponsored by Republican Senator Grassley and Democratic Senator Kohl. It’s good to see that on the issue of patient safety and not letting corporations put profits over people, we can still have bipartisanship.

In the February edition of Trial, the publication of the American Association for Justice, I published an article titled: “Txt messages and other driving distractions.” Just as the title suggested, I explained that with the explosion of new devices like cell phones, PDAs, MP3 players, navigation systems, and video players, the inside of a car is quickly becoming a much more dangerous place.

I’m glad to see that my observation in Trial was substantiated last week in the New York Times. On February 12, 2008, the Times ran the following article: “High-Tech Invitations Take Your Mind off Road.” (New York Times, February 12, 2008, Business section). The Times quoted Chrysler’s Chairman, Robert Nardelli, comparing the new vehicle interiors with a “family room”: “I think a vehicle today has to be your most favorite room under your roof… . It has to bring you gratification; it has to be tranquil. It’s incidental that it gets you from point A to point B, right?”

The Times said a senior vice president from the Insurance Institute for Highway Safety was nearly speechless after hearing that quote: “I don’t even know how to respond to that…. . There’s just overwhelming evidence that distraction is a crash risk.”

The point is, don’t allow yourself to become distracted while you drive. If you’d like a copy of my article, drop me a line at Shrager, Spivey and Sachs. Feel free to use the e-mail link under the “Contact” tab on our website: http://www.shragerlaw.com/html/contact.html .

The Sunday Philadelphia Inquirer contained an article by Stacey Burling which portrayed binding health care arbitraiton as a growing trend in health care without discussing the real downside of stealth arbitration clauses. Notably absent from Ms. Burling’s article were any injured victims who tried to pursue their constitutional rights  in court, only to find out that they had unknowingly signed paperwork thrust at them on a clipboard which gave up their centuries-old right to sue.

Mandatory arbitration clauses are ufair for many reasons. First, those who use them have had the advice of corporate defense lawyers who drafted the clauses so their clients could escape responsibility for their wrongs in courtrooms in favor of a secretive, expensive, and private dispute resolution system with no right of appeal. Who benefits from the secrecy of private arbitration? The health care provider or nursing home who injures a patient or resident but doesn’t have to read about the case in the paper or in a publicly accessible court docket. Certainly the person trying to learn about whether he should entrust his healthcare or an elderly parent’s care to a provider is entitled to know about the experiences of others in the past. With secret binding arbitration, those who have brought claims in the past are precluded from sharing that information with others.

Binding arbitration clauses are also devious because they force an innocent victim out of the publicly funded, equal access court system into an arbitration system where the victim, who may already be facing significant financial burdens, will be required to pay half of the arbitator’s fees - which often run hundreds of dollars per hour -  in hearings that typically last for days.

Binding arbitration is just that - binding and final. Unlike a trial where all parties always have the right to seek review in appellate courts, those who are forced into arbitration have no chance to make sure that thier case was tried fairly and without error.

But consider for a minute the “bargaining power” between the parties when these forms are signed. If a classic definition of a contract is a meeting of the minds, can there really be a contract when one side has a corporate defense lawyer, has financial resources, and has the ability to give or deny the medical service that the other party may urgently need? Of course not.

One comment by an insurance company owner in Ms. Burling’s article was that only “plaintiffs attorneys” oppose arbitration. That simply isn’t true. With little investigation, Ms. Burling could have learned about a wide range of injured people who have found their rights terminated by these unfair, anti-consumer clauses. She might have learned about Helen Etting, a legally blind woman in Florida who sought admission to a nursing home. Etta’s signature was nowhere near the signature line on the forms, but her estate was forced  out of court by a binding mandatory arbitration clause in her admission documents when the estate brought a suit claiming that injuries in the nursing home had led to her death!

The opposition to these clauses is far broader. Ms. Burling should have interviewed a representative of “Give Me Back My Rights”, a group funded in part by AARP to raise consumer awareness about the dangers of binding mandatory arbitration.

This is a complex issue where those with vastly greater resources - the health care providers, their corporate lawyers, and insurance companies - stand to gain substantially by limiting rights and putting profits over people.