It’s easy to determine when businesses will back or oppose arbitration: if it seems likely to screw workers and consumers out of their day in court, then they see it as good, and it if might possibly help workers achieve decent wages and benefits through labor negotiations, then it’s bad.
The lesson: the die-hard corporatists insist that pre dispute binding mandatory arbitration is such a wonderful thing… but what they mean is, it’s a wonderful thing except when corporations can’t use it to bully people around. When they’re used in relatively more equal power relationships, they’re no good because corporations can’t game the system to their advantage. In those instances, corporations prefer the public courts.
Excuse me while I high-five Art Levine. It is really heartening to see larger outlets like the Huffington Post giving due coverage to this important issue.
Today, President Obama told attendees at the American Medical Association conference in Chicago that he is not supportive of the idea of capping medical malpractice damages:
“I’m not advocating caps on malpractice awards, which I believe can be unfair to people who’ve been wrongfully harmed. I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine and encourage broader use of evidence-based guidelines,” Obama told the physicians group.
But then, could it be a precurser of tort “reforms” to come? In his very next breath the President talks about defensive medicine: “I want to work with the AMA so we can scale back excessive defensive medicine reinforcing our current system of more treatment rather than better care.”
Several sources tell us that, yes, the President is actually much more open to the idea of med mal “reform” than he lets on publicly:
The American Medical Association has long battled Democrats who oppose protecting doctors from malpractice lawsuits. But during a private meeting at the White House last month, association officials said, they found one Democrat willing to entertain the idea: President Obama.
In closed-door talks, Mr. Obama has been making the case that reducing malpractice lawsuits — a goal of many doctors and Republicans — can help drive down health care costs, and should be considered as part of any health care overhaul, according to lawmakers of both parties, as well as A.M.A. officials.
Please, enlighten me. What’s going on here? My recent hiatus has obviously left me seriously under-informed. I’m going to go check out Barbara O’Brien’s recent blogposts to on the issue. Maybe she can help me catch myself up.
It’s been a long time, I shouldn’t have left you… (Anyone who can finish that sentence wins a prize!) I have been on a bit of a hiatus while I concentrated on completing my fellowship at the Drum Major Institute for Public Policy. I apologize for my unannounced absence! On Monday, I will offer forth a longer reflection about my amazing experience at DMI as their civil justice fellow, and will resume blogging for TortDeform, although it will probably be less frequently than before.
In the mean time, I have come across several really interesting pieces surrounding the Sotomayor nomination, something that has generated a bit of discussion here on TortDeform. I thought I’d share a few highlights as a round up of sorts:
Erick Turkewitz has a few posts on Sotomayor. Most recently, he draws attention to a possible ethics issue from her solo practice years. He also blogs about a case coming to the Second Circuit regarding attorney ads and blogs. Sotomayor was on the panel that heard the case.
Today at ACS Blog, Prof. Kent Greenfield has posted a great piece, Souter and Empathy. He deconstructs the debate about Sotomayor and the empathy factor, based in part on his experience clerking for Souter. He makes the important distinction between how empathy impacts the way a judge feels and how it impacts the way a judge thinks. Obviously we don’t want mushy judges who make decisions based on whether they feel sorry for or moved by a particular claimant, rather than based upon the law. But we absolutely do want judges who are able to engage in the intellectual excercise of empathy so as to ensure that the law is being applied in a fair and equitable way. I love this line from the post: “But in the absence of a Supreme Court that looks like America instead of a Harvard Law alumni luncheon, empathy is necessary to reach outcomes that are not only fair but well-reasoned.” Check it out.
Ian Millhiser has also taken a brief hiatus from Overruled Blog. But no fear, he’s still blogging at Think Progress. In terms of keeping us updated on the Supreme Court nomination he’s been downright prolific. Today, he writes about the potential boycott of confirmation hearings and how bogus this is. He explains:
“Far from expediting Sotomayor’s confirmation process, Leahy set a schedule which is virtually identical to that enjoyed by Bush appointee John Roberts, even though Chief Justice Roberts’ record was more difficult to investigate because it was necessary to track down thousands of pages of documents Roberts produced while he worked in the Reagan and Bush I Administrations, and even though thousands of new documents relating to Roberts were uncovered just two weeks before his hearings began. Kyl’s threat to take his ball and go home if he doesn’t get his way is unfortunate, but it is hardly surprising.”
A while back we covered the story of Esmin Green, a Brooklyn woman who died on the floor of the waiting room at Kings County Hospital Center (here’s my post, here’s Justinian’s post). Her estate’s civil case against the hospital has been settled and the family is to receive $2 million from the hospital (in NYT ).
The criminal case is still pending. From the family’s lawyer:
“What remains most important to this family is the criminal culpability for those responsible for what happened and those who attempted to cover it up, which continues, after all this time, to remain under investigation by the New York City Department of Investigation,” Mr. Rubenstein said in a statement. “In no way does this settlement affect that investigation, and the family remains adamant in its demands that anyone who committed a criminal act with regard to the death of Esmin Green or the attempt to cover it up be prosecuted criminally to the full extent of the law.”
The comment section of the NYT blog got me to thinking. Most reasonable people truly get the importance of being able to sue when hospitals, entrusted with human lives, commit egregiously dangerous and negligent acts. They understand that Esmin Green’s is not a frivolous case (most of them do, anyway. One guy called Green’s case frivolous and got chewed out by just about everyone else on the blog).
But something sometimes gets lost in translation when we start talking about tort “reforms” that would prevent families from holding wrongdoers accountable for these types of acts in the future. Proponents of things like health courts and caps on non economic damages say that such so-called “reforms” would reduce costs, but all it would do is reduce accountability.
On the other hand, we could seriously save costs if cases like Ms. Green’s were allowed to move forward, thus creating incentives for hospitals to promote safer, more efficient patient care. This would also draw attention to the need to provide hospitals and doctors with adequate resources to do this successfully. As observed by one of the NYT commenters:
Unfortunately as a medical student, I see similar cases all the time in the hospital. Its not because of apathy or maliciousness, but rather because of too few resources and too many patients. I’ve vowed to do my best by my patients and to always attend to their needs promptly, but I know its probably a losing battle.
— Shamik
Case-in-point, Ms. Green’s death brought much-needed attention to the horrible treatment low income psychiatric patients receive, which (directly or indirectly) spurred the hospital system to action. As stated in the NYT article:
The hospital system said it had undertaken numerous reforms, including construction of a new Behavioral Health Center Pavilion; the addition of more than 200 doctors, nurses, psychologists, social workers and other staff members; a reduction in crowding in the psychiatric emergency room; and reduced reliance on hospital police to manage patients in crisis
Especially when you’re talking about hospitals that serve low income populations, it only makes sense that weighty incentives need to be in place to ensure proper care. What we DON’T need is to start making it easier for hospitals to neglect patients by reducing the likelihood that it will cost hospitals much money to pay for their bad practices. What we DO need is to continue expressing our outrage at dangerous inadequacies in the way care is provided, followed by demands that more resources be directed towards improving patient safety.
I just finished watching the live announcement that Federal Appeals Court Judge Sonia Sotomayor is President Obama’s Supreme Court nominee. (Here’s some coverage from NPR and New York Times)
In her speech, Judge Sotomayor pledged to “respect and respond to the concerns” of all who come before her in court. She also said, “I strive to never forget the real world consequences of my decisions on individuals, businesses, and the government.”
Her speech was also heavily grounded in the personal:
“Never in my wildest childhood imaginings, did I ever… dream that I would live this moment… Mr. President, I greatly appreciate the honor you are giving me… I hope that as the Senate and the American people learn more about me, they will see that I am an ordinary person who has been blessed with extraordinary opportunities and experiences.”
Judge Sotomayor was nominated to federal judgeship by President George H. W. Bush, is a graduate of Yale Law School, has worked in various aspects of the profession from criminal prosecution to commercial litigation, and has a riveting personal story, with some interesting parallels to President Obama’s life.
I’m intrigued. Any specific info on her stance on consumer justice issues and tort “reform,” send ‘em our way.
If that’s your situation, I wouldn’t blame you for staying away as long as you can.
I had the privilege of speaking with Michelle Rechtein, whose story is featured in the above report. The woman is a fighter. After speaking with her about her experience, no one can ever convince me that forced arbitration is fair, cost effective, voluntary, or any of the other lies we’re told about it. Read the report. Or visit FairArbitrationNow’s one-stop shop for more information about forced arbitration in the home building industry. And of course, you can browse TortDeform’s archived posts on the issue, particularly those written by forced arbitration victim-turned-activist Jordan Fogal.
I’ve seen some pretty troubling figures about legal aid, and it’s no wonder. Legal aid is completely stretched thin as more people find themselves in the middle of desperate civil legal battles due to the recession, while simultaneously legal aid organizations across the country are finding their funding slashed due to the downturn.
[A]lthough 50 percent of New Mexicans qualify for Legal Aid services based on income, the entire state has only 43 attorneys working for Legal Aid.
“The needs of the poor in New Mexico are great,” Kuffer said… “And although Legal Aid would like to help them all, we can’t.”
Such sobering blog content for a Friday evening, isn’t it? Especially with a long weekend ahead of us. But not thinking about it surely won’t make it go away, and won’t help the people personally affected by this reality. In fact, consider it a blessing if you are able to enjoy some nice, simple moments this holiday weekend without worrying about how an upcoming legal matter will affect your life. Appreciate it and do something fun with loved ones this weekend, knowing that, unfortunately, there will still be plenty of work to do in the field of civil justice after the holiday is over.
Here’s the full article. It’s actually pretty enlightening about the extent of legal needs out there right now due to the financial downturn. It’s also helpful to keep this information in mind as we encounter more arguments against the provision of legal aid to the poor, based, ironically, on the argument that we don’t have enough money for it. (By the way, the truth is that when provided upfront, legal aid can actually help cities and state governments avoid higher direct spending. From the Brennan Center: “Despite the cost of providing lawyers for tenants facing eviction, it will save the city money almost immediately… HRA’s calculations show that the city will avert four dollars in costs associated with homelessness for every dollar that it spends on eviction prevention.”)
Health care tort “reform” arguments exposed as false, mythical
Barbara O’Brien’s third and fourth parts to her series on the health care debate and tort “reform” are up and running and ready for you to read and debate.
In part three, she highlights the lies that are being offered as fact about tort “reform,” health care costs, and medical malpractice. She deconstructs the argument that doctors are quitting their profession or moving to escape malpractice lawsuits, based on data from the American Medical Association that reveals that states without damage caps have more physicians per 100,000 than those that do have damage caps.
A sneak peak of her article:
I am not arguing that personal injury law in the U.S. is perfect, or that it is never abused. Further, there are a number of thorny issues that need to be resolved regarding specific types of claims, such as mesothelioma resulting from decades-past asbestos exposure, if the law is going to be fair to both complainants and defendants.
My argument, however, is that before citizens allow state and federal legislatures to reduce their rights to take grievances to court, we all need to clearly understand the arguments being made for tort reform. Some of those arguments have some validity, but many of them are just flat-out false. (Read full article)
Definitely worth the read. And here’s the link to part 4. More soon.
Obama goes pro-civil justice, hit’s “undo” on preemption
This is, in a word, amazing. In an official memo released today, the Obama administration rolled back the effect of abusive implied federal preemption tactics like preemption by preamble, which is basically just a way to sneak lawsuit immunityfor big business into important regulations that are supposed to protect us.
The President didn’t quite like the fact that preemption eviscerates important consumer protection mechanisms, so he hit “do-over” on that one. From the official memo:
…Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government… The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption… As Justice Brandeis explained more than 70 years ago, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
The President’s action gets rid of preemption by preamble and in codified regulations unless it complies with Executive Order 13132. And it requires heads of departments to review regulations from the last 10 years, identify preemption rules, and determine if these rules comply with the proper legal standards. If not, they get tossed out.
Shouldn’t everybody be jumping up and down with happiness about this pro-civil justice policy? Well, yes, but of course some industry mouthpieces are instead jumping up and down in a screaming fit about lawsuits. A representative from the Chamber told the WSJ:
“One thing we know is you can’t sue your way into an economic recovery,” said Bryan Quigley of the U.S. Chamber of Commerce. “Allowing for more lawsuits will not create more jobs, except maybe for plaintiffs lawyers.”
That’s the best they could do? Really? As if, as a colleague of mine noted, enabling people to exercise their right to legal recourse was intended to be a stimulus measure. Aren’t safety and fairness worthy objectives, regardless of whether it creates more jobs?
But looking at this in the context of the economic downturn, this is actually a great way to protect consumers. At a time when every dollar matters, it makes no sense to spend our money on defective, even highly dangerous products, and then have no right to seek compensation for such bad business and the harm it produces. The Center for Progressive Reform further explains:
Since federal health and safety laws are primarily prescriptive, they generally do not provide compensation for those injured by regulated entities. Preemption therefore deprives injured consumers and patients of their right to recover for harms wrongfully perpetrated against them. Moreover, taxpayers will end up picking up medical and other expenses of increasing numbers of injured persons because they will be unable to obtain tort compensation and will not be able to pay for the resulting medical expenses out of their pockets.
Obama Administration straddling fence on forced arbitration?
Where does the Obama administration stand on the issue of forced arbitration? Apparently, with one foot on each side of the line.
Consumerist shared clips from their entertaining and informative interview with Austan Goolsbee, President Obama’s senior economic adviser, about consumer protection and credit card industry reform. The interview is presented in a four part series, and here are links to the first, second, and third parts. I want to highlight part four because it deals with an issue that has been the subject of so many posts and debates on TortDeform. That’s right, part four discusses pre dispute binding mandatory arbitration (bma), also known as forced arbitration.
The good folks at Consumerist ask Goolsbee where the Obama administration stands on the issue of forced arbitration and whether there could be room to include an anti-bma provision to the Credit Cardholders Bill of Rights. The answer leaves much to be desired. Here’s the Consumerist clip:
His answer… well, isn’t one. Goolsbee acknowledges that things like institutional bias and the repeat player effect sound very problematic, but he does not give a firm answer against or supporting the use of arbitration. In fact, he even uses the old “flood of litigation” standby to argue a supposed benefit of forced arbitration. But when companies systematically abuse consumers through an unfair form contract provision that pervades the entire industry, stemming the tide of legitimate consumer lawsuits is not a good thing. Instead, this enables the credit card industry to continue and profit from abusive practices, without the accountability of the law.
To be fair, Goolsbee does seem open to information about the abuses of forced arbitration, but the truth is that tons of concrete information is already out there. You’ve got the FairArbitrationNow Coalition (of which I am a member). You’ve got Public Citizen’s many groundbreaking reports. And DMI has our own report that discusses forced arbitration. Additionally, dozens of consumers from across the country recently traveled to DC to share personal stories about the arbitration system, so the administration can ask the people themselves.
It is acceptable, and preferable over simply fudging an uninformed answer, to admit when one is undecided on a particular issue. But people in positions of influence, when presented with information that demonstrates the urgency of the issue, have a professional obligation to get informed and then take a stand. This must involve talking to advocates and real people affected by the issue, not just credit card industry reps. And that’s what we should be calling on Obama’s economic advisers to do, soon.
TortDeform.com, the Civil Justice Defense Blog, confronts and transcends the arguments put forth by the tort "reform" movement, working to ensure that all Americans can access the courts.
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