We would all like to think that these kinds of medical mistakes are uncommon.  The Pennsylvania Patient Safety Authority (PSA), in a startling report issued recently, tells us otherwise.  Here is a link to the report:

http://patientsafetyauthority.org/ADVISORIES/AdvisoryLibrary/2012/Sep;9(3)/Pages/106.aspx.

In 2011, there were a shocking 452 reported cases involving a retained sponge, medical instrument, surgical needle or other item, according to the PSA’s September 2012 advisory, “Update on the Prevention of Retained Surgical Items.”  The Advisory also reports on various measures different organizations have recommended to suggest clearer hospital guidelines.  The hope is that more coherent hospital policies will reduce this incidence of retained surgical items.

For a number of reasons, I don’t believe guidelines and policies alone are sufficient to address this problem.

First, one has to wonder how this kind of error could ever occur in our modern health care system.  The idea that you could have abdominal surgery, even a routine procedure with a low risk of post-operative complication, and end up with a debilitating and costly infection because someone left a surgical sponge or a piece of an instrument inside your abdominal cavity?  There is just no excuse for this kind of mistake.

Second, there are already powerful incentives in place for surgeons and operating room staff to avoid these kinds of errors.  Retained surgical item cases lead to legal claims and those claims are costly.  Most of the time, hospitals have no liability defense in these cases.  This means that retained sponge cases almost always lead to claims pay-outs on top of litigation defense costs.  Still, the threat of litigation itself apparently has not limited the careless behavior that leads to retained surgical items.

Third, the Pennsylvania experience provides empirical evidence that hospital policies and professional association guidelines are not sufficient to address this problem.  The PSA’s just-released Advisory is an “Update,” but the report conspicuously leaves out the very data it is updating.  That’s alright, because even though the PSA didn’t see fit to mention the findings of its previous report, “Beyond the Count: Preventing Retention of Foreign Objects,” which was issued in June 2009, one can find it easily enough.  Here is the link:

http://patientsafetyauthority.org/ADVISORIES/AdvisoryLibrary/2009/Jun6(2)/Pages/39.aspx.

The numbers tell a significant part of the story:  In 2008, there were 194 reports of retained foreign objects (RFOs), including such items as retained surgical packing, surgical sponges, surgical drains and other surgical devices and equipment.  In 2011, the number of incidents (now called retained surgical items, or RSIs) had more than doubled, to 452 events.  The 2011 incident reports are broken down as follows:  30.2 percent are surgical sponges; 16.3 percent are medical instruments; 13 percent are needles; and 40.5 percent are “other,” which includes implements such as guidewires.

It is admirable, then, that between the first and second PSA Advisories, the National Quality Forum changed its definition of when surgery technically ends – from the closing of the surgical incision to the time the patient leaves the OR – as a way of emphasizing the roles and responsibilities of the perioperative staff.  It is fine and well that the Association of periOperative Registered Nurses has issued revised guidelines for the prevention of RSIs.

But the numbers are going up.

I have represented victims of this kind of surgical malpractice.  Sometimes, a retained surgical item sounds worse than it is and results in relatively little harm to the patient.  Sometimes, however, the consequences are very significant indeed and result in pain and suffering, additional medical care costs, lost time from work and other damages.

What then is the rest of the story (as famed radio newsman Paul Harvey used to ask)?  Or, if guidelines and hospital policies are not enough to reduce retained surgical item events, then what?  An approach well worth trying is set forth in a new book by Marty Makary, M.D., an oncologic surgeon at Johns Hopkins Hospital and an associate professor of health policy at Johns Hopkins School of Public Health.  In Dr. Makary’s new work, Unaccountable: What Hospitals Won’t Tell You and How Transparency Can Revolutionize Health Care, he argues that hospitals must make patient safety data available to the public.

The fact is, transparency works.  Dr. Makary relates the experience in New York, where in 1989 the state’s health commissioner required hospitals to disclose death rates from coronary artery bypass graft (CABG) procedures.  In the modern era of anesthesia and advanced surgical techniques, the thinking was, post-operative complications from CABG should be relatively low.

Once hospitals made public their CABG mortality rates, there was immediate and profound change.  Initially, reported death rates at New York hospitals varied from one percent to as high as 18 percent.  As Dr. Makary recounts, those hospitals with higher death rates leaped quickly into action.  Hospital executives held meetings with surgical and nursing staff to focus on finding ways to improve patient safety and reduce their hospital’s poor mortality figures.  There was actual competition, not for profits, but for the best record on patient outcomes.

Dr. Makary singles out Erie County Medical Center, once one of New York’s worst-performing hospitals, as a shining example.  When death rates were first published over the internet, the hospital posted CABG mortality rates at 18 percent.  “With its awful numbers now out in the open, on the Internet, the hospital’s administrators acted swiftly to resuscitate its heart program.  Hospital management listened to its frontline personnel, hired a new chief and some new dedicated staff, and instituted internal review conferences.  Remarkably, within three years the mortality rate was cut to 7 percent, and in the years since, it has fallen to 1.7 percent.”

Could this same approach reduce medical errors and improve patient safety in other areas?  There may be challenges to comparing outcomes when it comes to some procedures, for a number of reasons.  Some physicians and some hospitals may tend to attract patients who are more ill or whose disease is more advanced because they develop a reputation for skillful handling of these more difficult cases.  Should these practitioners then be penalized if they have a higher death rate among their patients?

There are differences among hospitals and among physicians practicing in the same specialty.  Hospital size, patient mix, urban versus suburban location and other factors may well complicate efforts to measure patient outcomes.  Then again, certain outcomes are easier to measure than others.

Hospitals already track post-operative infection rates and publish this data on a voluntary basis.  The question then is whether the public should have access to this kind of data for all hospitals?  What is the excuse for a hospital not voluntarily disclosing this information, where other hospitals already do?  Is the reason that some hospitals refuse to participate in the voluntary disclosure of outcome data that these are the hospitals with the more dismal records?  Should poor-performing hospitals be allowed to shield this information from the public?  Isn’t poor performance all the more reason for mandatory disclosure?

The problem of retained surgical items is one area that seems clearly to lend itself to public disclosure.  If a hospital has a good, clean record when it comes to the incidence of retained surgical items, then there should be nothing to hide.  There should be no reason not to have that information available to the public.  If a hospital has a poor record, has more than a reasonable number of lost needles and retained sponges, then patients surely have a right to that information.

Pennsylvania already tracks this data.  There is now a basis for comparing 2008 to 2011 numbers, even if the latest Advisory failed to be explicit in making the comparison.  We know the problem is getting worse.  What we don’t know is which hospitals are experiencing this problem and in what numbers.

As Dr. Makary notes in his new book, “Transparency can empower consumers to make their hospitals accountable and make the practice of medicine more honest.”

What is Pennsylvania waiting for then?  In the interest of improving patient safety – and everything good that goes along with that  — hospitals should be required to disclose the truth about retained surgical item cases.

When the administrative office of Pennsylvania’s court system issues data on the numbers of case filings, the number of medical malpractice cases is consistently down from its high points.  Data on the results of jury verdicts, even in the “judicial hellhole” that is Philadelphia (as characterized by tort-reform proponents), show an overwhelming advantage for the defendant doctor or hospital.

Even prominent tort reform advocates admit, when pressed, that our legal system is not being inundated with frivolous medical malpractice claims.  Victor Schwartz, the general of the American Tort Reform Association, one of the most influential voices for curbing the rights of victims of medical and hospital errors, has conceded: “It is ‘rare or unusal’ for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring.”

Why do Republicans continue to press this issue then?  The answer, plain and simple, is money.  Any rule or restriction that limits recovery for those injured by medical mistakes – such as a cap on the amount of monetary damages a plaintiff may recover in a civil lawsuit – means more money in the hands of medical malpractice insurance companies.

The Center for Justice and Democracy, which describes itself as “working full-time to make sure average Americans get a fair shake in court, even against the country’s most powerful special interests” and which is affiliated with New York Law School, has assembled a “briefing book,” entitled “Medical Malpractice: By The Numbers.” CJ&D’s briefing book is a comprehensive collection of facts and figures useful in debunking claims of a tort crisis.  http://centerjd.org/content/briefing-book-medical-malpractice-numbers.

As a trial lawyer, I have represented many, many families who suffered devastating injuries from medical and surgical and hospital errors.  So of course I am deeply concerned any time there is a legislative threat to the rights of the individuals and families I know and represent.  But there is more to the story.

The time and energy we spend on the mythical medical liability problem is time and attention away from the real problem.   Medical errors occur in great numbers in hospitals large and small across this country.   Every error means a risk of serious harm to a patient – a patient who is a  mother or father, a son or daughter, someone’s loved one.  In far too many instances, medical error means more than just the risk of harm; it means actual harm, physical injury, pain and suffering, increased medical care costs, even loss of ability to work or financial ruin.

We have to do a better job in addressing the epidemic of medical error.  Hospitals have to do better.  Physicians need to do better.  Frankly, insurance companies should take the millions they spend on lobbying for yet another measure to limit the rights of those who are injured by a medical mistake and spend those dollars on programs to reduce the errors that create the need for compensation in the first place.

The CJ&R report is not just comprehensive.  It is a devastating indictment of the tort reform movement.   Every point included has a source citation so that anyone can check the source authority.   In short, this report is not propaganda; it presents hard evidence.

Here are just a few of the report’s key findings:

–          Study after study shows a small fraction of patients who experience malpractice actually bring claims.

–          Tort reform may actually increase the incidence of medical error and the risk of harm to patients because physicians do not expect to bear the costs of injuries due to medical or hospital negligence.

–          Over the last 30 years, medical malpractice premiums and claims have never been greater than 1 percent of our country’s health care costs.

–          The notion that tort liability causes physicians to practice “defensive medicine, which drives up medical costs overall, is largely a myth.  Rather, tort liability acts as a way of protecting patients against under-treatment.

–          Tort reform does not correlate to the number of physicians.  In Texas, which has seen some of the most drastic tort reform laws put in place, has not had a significant impact on the doctor population.  Physician levels, it turns out, are related to demographic patterns and job opportunities, not tort laws.

–          Caps on damages limit the rights of individuals with serious injuries but do not – repeat, do not – lead to lower malpractice premiums.

The CJ&D report also has an extensive section on patient safety.  Reading through the report, it is impossible to miss the key lessons.  As a society – lawyers, health care providers, hospital administrators, insurers – we all have a lot of work to do to improve the quality of health care and its costs.  It is not enough to say that the tort reformers are grossly distorting the debate over what our tort law should look like.  We also have to keep a keen focus on reducing the incidence of medical errors.  The safety and well being of patients, really the safety and well being of us all, depends on that.

A New Jersey woman who claims she developed complications at the site of an intravenous line on her forearm while she was undergoing a kidney transplant at a Philadelphia hospital, an injury that required a second surgery, has filed a malpractice claim against the medical institution.

Philadelphia attorney Derek R. Layser, of the firm Layser & Freiwald, filed the civil action July 9 at the Philadelphia Court of Common Pleas on behalf of Tiffany Gonzalez of Bound Brook, N.J.

The defendant named in the lawsuit is Tenet Health System, which operates St. Christopher’s Hospital For Children.

According to the complaint, two days after undergoing a kidney transplant at the hospital on June 3, 2011, Gonzalez began to experience unusual tenderness on her left forearm, which eventually developed into a lesion accompanied by a rash, increased swelling, pain and blistering.

A June 14, 2011, MRI revealed extravasation of the IV medication, a discovery that led to emergency surgery being performed on the woman that same day to relieve the pressure in her arm, the lawsuit states.

Following the surgery, Gonzalez had to undergo wound vac therapy with skin graft.

Gonzalez was not discharged from the hospital until July 15 of that year, a full month after her injuries were initially discovered.

The lawsuit states that as a result of the defendant’s negligence, Gonzalez was caused to suffer great physical pain, the need for additional medical procedures, prolonged hospitalization, a delay in recovery, scarring and other injuries.

Gonzalez was also required to undergo physical therapy, she has incurred medical expenses, she has had restrictions placed on her daily activities, and she has suffered mental anguish, embarrassment, humiliation, a loss of life’s pleasures and lost wages, the lawsuit states.

The complaint accuses the hospital of failing to properly administer intravenous medication, failing to prevent extravasation of calcium chloride, failing to prevent tissue damage, failing to consult an IV team, failing to recognize the signs and symptoms of compartment syndrome, failing to recognize the need for prompt treatment and failing to recognize the nature and severity of the plaintiff’s injury.

Gonzalez seeks compensatory damages in excess of $50,000, plus costs, pre-judgment interest and post-judgment interest.

The case ID number is 120700968.

McConnell’s back-of-the-hand remark to Wallace – “That’s not the issue” – received the most attention in the media. Though insensitive, politically and otherwise, McConnell’s attempt to explain the “replace” part of his prescription was more worrisome.

First, McConnell said, Obamacare would be repealed. No ifs, ands or buts. Second, the Kentucky Republican promised, Obamacare would be replaced with “more modest reforms,” like “lawsuit reform,” which he claimed was necessary because of the “billions and billions” hospitals and doctors are paying every year because of lawsuits.

Tort reform? That old Republican chestnut? A cap on money damages as a way to solve the problems with our health care system by reducing health care costs? Why yes, McConnell and others say and have said for years as they receive steady donations from insurance companies and the Chamber of Commerce and others promoting talk of “frivolous lawsuits” and “jackpot juries” and “judicial hellholes.”

Nothing new in all this. What is new is fresh evidence, courtesy of Public Citizen, that the conservative cry for “lawsuit reform” is not the answer. Or, how about this, Senator McConnell: That old dog won’t hunt.

In a report issued just last week, Public Citizen clearly analyzes medical malpractice claims based on hard data taken from the National Practitioner’s Data Bank (NPDB). The NPDB is the electronic repository of all payments made on behalf of doctors and hospitals, whether by settlement or jury trial, going back to 1990. Federal law requires reporting of all such payments, so that the data is believed to be comprehensive. (The data is meant to be kept confidential although it is made available to hospitals and other entities under certain, very restricted circumstances. Some argue that there should be greater transparency and that this information should far more widely available.)

Based on its review of this NPDB data, Public Citizen has reached a decisive verdict: the Republicans’ longtime claim that limiting individual rights (by capping damages, for example) will reduce the cost of healthcare for all is bogus. Here are just some of the highlights from the Public Citizen report, based on more than 20 years of NPDB data:

• The number of payments made on behalf of doctors in 2011 fell for the eighth consecutive year to the lowest level since the Data Bank was created;
• The total value of the payments made in 2011, adjusted for inflation, was the lowest in the history of the NPDB;
• If you add up all malpractice payments made in 2011, that total as a share of the country’s total health care bill, was the lowest on record;
• Malpractice liability insurance premiums in 2010 (the most recent year for which complete data is available) were the lowest since the NPDB began more than two decades ago;
• An analysis of the payments made in 2011 shows that 80 percent were made in cases involving death, catastrophic harm or serious permanent injuries;
• The value of malpractice claims paid between 2000 and 2011 fell 11.9 percent while total health care spending increased 96.7 percent during the same period.

The Public Citizen report, entitled, Medical Malpractice Payments Sunk to Record Low in 2011,” contains full detail, back up, sourcing and many charts and graphs to illustrate the findings from this important data. Here is a link to the report, which is well-worth reading in its entirety: http://www.citizen.org/npdm-report-2012.

What does all this mean? One thing these findings make clear is that there is no correlation between malpractice claims paid and the cost of health care. This is further seen in studies of states like Texas, which enacted some of the harshest tort reform measures about a decade ago. In Texas, for example, tort reform measures like caps on damages have not resulted in lower health care costs.

Meanwhile, as Public Citizen notes, the evidence continues to mount that medical malpractice claims are brought in only a small fraction of cases of serious medical error. The groundbreaking 1998 report of the prestigious Institute of Medicine, To Err is Human, which shockingly projected 44,000 to 98,000 American deaths per year due to medical error, has been updated recently with compelling, corroborating data.

The Department of Health and Human Services in 2010, for example, conducted a far-reaching survey of Medicare recipients and found that one in seven patients receiving hospital care experienced a serious, adverse event and that nearly half of those were preventable. That translates to several hundred thousand medical errors causing a serious – not frivolous, but serious – medical mistake. A North Carolina study published in 2010 made largely the same findings.

Reviewing the NPDB statistics, Public Citizen found that the total number of medical malpractice claims paid in 2011 was fewer than 10,000. That means that only a small number of medical errors led to lawsuits and saw a malpractice payout. What that means, in turn, is that the overwhelming majority of medical errors went uncompensated.

The fact that there is such a high incidence of avoidable medical errors means that there is an enormous financial burden in preventable health care costs. An individual who develops a hospital-acquired infection, for example, clearly is going to have a longer hospital stay, is going to require expensive prescription drugs to treat the infection, is going to need expensive diagnostic studies like MRIs, and is going to run up a significantly higher medical bill, not to mention the avoidable human costs in pain and suffering, lost time from work, time away from family responsibilities, and so on.

Who pays these additional costs? If the doctor or hospital (and their insurance company) are not paying the tab, then the costs are being shouldered by the victims of the medical error. Given tens of millions of uninsured in this country, that means those preventable, unnecessary costs are being paid, ultimately, by me and you.

In other words, Senator McConnell, the answer to the problem of high medical care costs is not to limit the rights of victims of medical errors. The Affordable Care Act provides the means to insure millions of Americans. Now we need to find more effective ways of improving the quality of medical care and reducing the deplorably high incidence of medical errors.

If you’re a patient or you might someday be a patient, if you’re a physician or a nurse or a hospital administrator or, frankly, if you’re breathing, these results should be disturbing.

Consumer Reports (CR) explains that its review is based on the “most current data available,” including “information from government and independent sources on 1,159 hospitals in 44 states.” That sounds pretty good, except that CR was only able to reliably consider data on 18 percent of hospitals. Clearly, 18 percent is not good.

The goal of the CR analysis was to compare hospitals based on an assessment of patient safety. To do this, CR looked at six issues frequently associated with patient injury: rates of hospital infections; number of re-admissions following discharge; communication errors, such as confusion over discharge instructions; numbers of CT scans ordered, because of the potential for over-exposing patients to radiation; complications; and mortality. Rating a hospital in these categories allows some comparison of performance in terms of patient safety.

Evaluating hospitals for performance in the area of patient safety is such a worthwhile undertaking that it is utterly amazing that it has taken this long. Trial lawyers like me, who represent patients and their families in malpractice cases, have known for many years the importance of reducing the incidence of medical errors. Many studies have now so clearly documented the problem that there should be no ignoring the matter. In 2010, for example, as CR notes, a Department of Health and Human Services report pointed to surgical mistakes, infections and other medical errors as the cause of death for 180,000 hospital patients a year. More than a million others are seriously injured while they are in the hospital supposedly trying to find healing, not more pain.
Of course, the CR study has its limits. There are many kinds of hospitals, ranging from smaller community hospitals to large, urban teaching hospitals. But the complexities of our health care system are no reason for less transparency. Instead, there should be more reporting, more access to this kind of information.

Consider Pennsylvania and New Jersey, two states close to where I live and practice. CR has published its study results in its August 2012 issue and also on line. Here is a link to the site: http://www.consumerreports.org/health/doctors-hospitals/hospital-ratings.htm. (To access the state by state results on line requires a subscription to consumerreports.org.)

In Pennsylvania, CR reviewed 180 hospitals across the state, but was only able to obtain data in all six categories – and thus was only able to assign an overall safety rating – for 10 hospitals. The highest ranked of those 10 hospitals, Lancaster General Health in Lancaster, PA, received a 68 out of 100 overall safety rating. That is a fairly respectable score, considering the overall highest rating hospital in the CR analysis, the Billings Clinic, located in Montana, received an overall score of 72.

Only one hospital in Philadelphia, Hahnemann, supplied sufficient data in all categories to be fully evaluated in the CR review. Hahnemann’s overall safety score was a pathetic 44 out of 100. The hospital did well in some areas, such as doctor-patient communications and nurse-patient communications. In other areas, the hospital performed dismally, based on the CR criteria. For example, Hahnemann’s data on patient re-admissions was telling: heart attack patients had a 20 percent chance of being re-admitted within 30 days of being sent home. Pneumonia patients had a 21 percent chance of re-admission within 30 days.

Hahnemann should get credit for its openness and disclosure. Hopefully, this review will motivate Hahnemann to improve its record in these categories, the better to serve its patients. That should be enough of a reason for improving patient safety. Of course, there is a financial incentive, too, as countless studies document the high costs associated with hospital-acquired infections, preventable re-admissions and other avoidable medical errors.

The CR team reviewed 78 hospitals in New Jersey and was able to evaluate complete data on 53 hospitals, far more than half and a far higher percentage than in Pennsylvania.

The highest rated New Jersey hospital, Deborah Heart and Lung Center in Brown Mills, received an overall safety rating of 62. The lowest-rated hospital in the state was Kimball Medical Center in Lakewood with an overall score of just 24. JFK Medical Center in Edison fared hardly better, with an overall patient safety score of 29. In all, 17 of the 53 hospitals CR was able to assign an overall patient safety score failed to achieve a rating of higher than 40 out of 100, including the widely publicized Cooper Health System in Camden.

The CR medical team has done a great service with this first effort. One can go to the website and click on any hospital and see detailed data on each hospital or one can choose multiple hospitals for side by side comparisons. Clearly, though, there must be more.

The CR review may be a step in the right direction to making accessible information about the quality of care at hospitals, but much greater strides are needed. More information about the kinds of factors CR considered in its evaluation will allow consumers to make more informed choices about their healthcare and will encourage poorer performers to make improvements, reduce the number of devastating medical errors and save a great deal of healthcare resources.

Alec Baldwin is a star of the large and small screens. He is good and funny. ALEC, on the other hand, is no laughing matter. And there is nothing good about ALEC, unless you’re one of the big companies that funds its work and benefits from its efforts to curtail individual rights.

Most of us knew nothing about ALEC – the American Legislative Exchange Council – until the Trayvon Martin controversy. ALEC led the way in Florida (and other states) lobbying for passing a Stand Your Ground law, which is now the basis for George Zimmerman’s defense against charges he shot shot dead an unarmed teenager.

If you don’t know much about ALEC, you should and a good place to start is a new report, issued earlier this month by the group Take Back Our Courts, a project of the Pennsylvania-based Keystone Progress. The report, “Justice Denied in Pennsylvania,” examines ALEC’s background and its agenda as well as its influence on Pennsylvania legislators.

Why single out ALEC for study? Isn’t lobbying for a special-interest agenda simply the way business gets done in politics today? According to “Justice Denied,” because of the usually unpublicized infiltration of groups like ALEC, and the deep ties ALEC has within many state legislatures, “the very nature of our government as a republic is being challenged.”

Why worry about a special interest lobbying organization just because it seems to be successful? Listen to ALEC, after all, and its goals sound all-American. According to its website, ALEC works to “advance the fundamental principles of free-market enterprise, limited government, and federalism at the state level through a nonpartisan public-private partnership of America’s state legislators, members of the private sector and the general public.”

Here’s the problem: “Free market” here means freedom for ALEC’s several hundred corporate members, including the likes of Bayer (drugs), Altria (tobacco), State Farm (insurance), Exxon (energy) and their law firms and billionaire financiers (like the Koch brothers). Freedom from what? Mostly this means freedom from regulations to protect workers and consumers and relief from laws that favor big companies and limit the rights of individuals.

Also, ALEC is not bipartisan. Although a number of Pennsylvania House and Senate members have joined a few companies in publicly distancing themselves from ALEC in the wake of the Trayvon Martin controversy, according to the Justice Denied report, nearly 50 Pennsylvania state legislators are ALEC members or supporters. And they are all Republicans.

The “Justice Denied” report focuses particularly on the efforts of ALEC’s Civil Justice Task Force. ALEC’s idea of “civil justice” is one that only a large corporation could love. In the past, ALEC’s legislative initiatives in this area, for example, have included re-writing Pennsylvania’s successor liability law to protect asbestos companies like ALEC-member Crown Holdings from legal responsibility to thousands of workers who were injured or got lung cancer due to asbestos exposure. ALEC has supported the re-writing of the law on joint and several liability, which severely limits the ability of an injured person to collect full compensation from wrongdoers.

We don’t need more tort reform in Pennsylvania

ALEC continues to beat the drum for tort reform even though Pennsylvania has already seen major revisions to its tort laws. In 2002, the Pennsylvania legislature passed sweeping measures to limit medical malpractice cases, including new requirements that Affidavits of Merit from qualified physicians be obtained prior to filing any medical negligence case. Pennsylvania also passed venue reform, which required that any medical malpractice case could only be filed in the county where the medical care took place. This had the effect of protecting large health care systems based in Philadelphia, like the University of Pennsylvania and Jefferson Health System. As a result the number of medical malpractice cases filed each year in Philadelphia County has dropped by about two-thirds.

There is no evidence that further “tort reform” is needed. There is no claim that insurance premiums are too high or that the number of cases filed is excessive. Even in Philadelphia County, which ALEX and its supports decry as “a judicial hellhole,” doctors and hospitals who defend themselves in medical malpractice cases at trial still prevail in better than 7 out of 10 cases.

Yet ALEC still presses its “civil justice” agenda in Pennsylvania, including its leading initiative, a push for a cap on damages, especially non-economic damages for pain and suffering, sometimes called “quality of life” damages. An arbitrary cap on non-economic damages would well serve the interest of companies, that want to limit the amount a jury can award for a botched surgery or a defective product. Limiting damages for pain and suffering would have a devastating impact on individuals.

Try talking to someone who has suffered a devastating injury and feels the impact of that injury every day, in all of the little things, what we call “activities of daily living.” How do you limit compensation for the inability to lift your child? Or intractable pain that prevents your being able to pull up your socks? Or restrictions in movement that prevent the ability to appreciate the simplest of pleasures of life? The idea that there would be no compensation for such losses or an arbitrary limit placed on such losses – all to reduce the liability of a corporate defendant or an insurance company – is unfair in the extreme.

A cap on damages also produces highly inequitable results. Think of two similar cases involving a negligent surgery resulting in the amputation of the patient’s leg, an unquestionably devastating injury. If the individual has a job outside the home, is now disabled from work and earned, say $30,000 a year, then that lost income becomes an important element of the damages claim. If, on the other hand, the individual is an at-home parent or is elderly, and so has no outside income, then non-economic damages may be the only meaningful damages claim the person has.

The Trayvon Martin case brought ALEC out of the shadows and into the light. Stand Your Ground laws, like the one in Florida, apparently passed through the legislative process without attracting much notice until the implications – as seen in the Martin case – came clear. The idea behind Stand Your Ground is that a person can use lethal force to defend himself, without a duty to retreat, wherever he might be. Previously, this idea was limited to self-defense when in one’s home. Apparently, ALEC, standing with groups like the NRA, believes that the 2nd Amendment means that gun-carrying citizens should have greater freedom to use their weapons outside the home.

ALEC received unwanted attention through the Trayvon Martin case and this led some companies, like Coca Cola, to withdraw from ALEC. Johnson and Johnson is the most recent ALEC supporter to distance itself from the group.

We need more light, more transparency, not less, when it comes to ALEC. There may be nothing unlawful about the lobbying it does, but ALEC should not be allowed to operate in secret. The “Justice Denied” report goes a long way to exposing ALEC, its corporate sponsors, its members in Harrisburg, and the dangerous agenda ALEC is pressing to have enacted into law.

In an April 10, 2012 decision, the Supreme Court declined to hear the appeal of Rohm and Haas, now a subsidiary of Dow, which means the opinion of the Superior Court (Pennsylvania’s intermediate appellate court) stands.

And that means Dow and Rohm and Haas have lost their challenge to a court order compelling Dow to make available certain witnesses to answer questions about whether Dow concealed from epidemiology researchers evidence of workers who had been exposed to vinyl chloride and who later were diagnosed with brain cancer.  The reason Dow allegedly concealed such evidence: To weaken the scientific links between vinyl chloride, a key ingredient in the making of plastic, and brain cancer.

Case Background

The dispute over Dow witnesses arises from litigation involving a group of cases involving almost three dozen individuals who developed brain tumors and who lived not far from a Rohm and Haas chemicals factory inMcHenry County,Illinois.  Joanne Branham, on behalf of her late husband, Franklin Delano Branham, filed the first case.  The Branhams were longtime residents of McCullom Lake, a small community about one mile south of the Rohm and Haas (former Morton Chemical) plant.

The McCullom Lake cases began after Mr. Branham and two former side-by-side neighbors were diagnosed with malignant brain cancer within the same 12-month time period.  After all three filed civil actions in Philadelphia, where Rohm and Haas has its worldwide headquarters, other current and former residents who had developed brain tumors as well, came forward to join the litigation. In 2006, four McCullom Lake residents were diagnosed with glioblastoma multiforme.  All but one has since died.

Malignant brain cancer originating in the brain – as opposed a brain tumor that is the result of metastasis from cancer in some other part of the body – is an especially rare form of cancer.  In the general population, there are only a few cases per 100,000 people per year.  The population of McCullom Lake is about 1,000 residents.

Rohm and Haas had bought Morton Chemical, and along with it the McHenry County chemicals plant, in 1999.  Dow Chemical in turn bought Rohm and Haas, paying about $15 billion, in 2009.  Because Dow acquired Rohm and Haas after the Branham case was filed, Dow was not directly a party to the lawsuit.

The thrust of the Branham case, and the other McCullom Lake brain cancer cases as well, is the claim that Rohm and Haas maintained an open, unlined chemical waste lagoon that was used to store millions and millions of gallons of liquid and solid waste during the 1960s and 1970s.  That lagoon leaked its contents, which then migrated through the groundwater moving in the direction of McCullom Lake.  The contamination also percolated up through the shallow groundwater and into the air.

Among the contaminants in the groundwater, the company has acknowledged, was vinyl chloride.  Vinyl chloride is a known human carcinogen.

Epidemiology studies

One of the issues in the McCullom Lake cases was whether vinyl chloride could cause brain cancers.  Scientists widely agree that vinyl chloride causes a rare form of liver cancer and studies of vinyl chloride workers have strongly affirmed that conclusion.  But the chemical industry, led by Dow Chemical, has long resisted and actively fought against linking vinyl chloride to brain cancer, even though a great deal of science, including animal studies and worker epidemiology studies demonstrate that vinyl chloride does cause brain cancer.

Starting in the 1970s, the chemical industry, through the Chemical Manufacturers’ Association (now called the American Chemistry Council), commissioned epidemiology studies of vinyl chloride workers to try to disprove any association between vinyl chloride and brain cancer. The idea was to create an industry-wide cohort of workers, that is, to include in one study a large group of workers potentially exposed to vinyl chloride from many different facilities owned by a variety of vinyl manufacturers.

Dow was one of the manufacturers that contributed workers from several plants to this industry-wide cohort.  So was Union Carbide, a company later acquired by Dow.

The companies did what they could to control the outcome.  For example, the company managers, rather than the researchers brought in to do the scientific investigation, controlled which plants were included and determined which workers should be included.  In spite of these efforts, the initial versions of the industry-wide epidemiology studies gave the chemical manufacturers the unexpected and unwelcome news: the vinyl chloride workers did see a statistically significant increase in brain cancers.

In the late-1990s, the chemical companies revisited these earlier studies, engaging a new researcher, Kenneth Mundt, an epidemiologist fromBoston.   Mundt took all the worker data previously examined by different researchers and “updated” the information.  For example, one of the brain cancer cases counted in the earlier works was “un-counted” in the Mundt study.

The Mundt study, published in 2000, still found an association between vinyl chloride exposure and brain cancer, but characterized that association as “weak” from a statistical perspective.  In a cohort of some 10,000 workers, there were 36 brain cancers identified.  The fact that the study identified 36 cases meant that the increase in brain cancers over the expected number of cases was right on the line, just a hair shy of being statistically significant.

In other words, if Mundt had identified just one more case of brain cancer, then he would have had to acknowledge, as his predecessors had, that there was indeed a statistically significant association between vinyl chloride and brain cancer.  Just one more case would have changed the outcome of his study.

In response, the chemical companies waved the Mundt paper triumphantly, as if to say, You see!  That’s what we’ve been saying all along!  Experts for chemical companies used Mundt’s work in defending legal claims brought on behalf of workers and others claiming that their brain cancer resulted from exposure to vinyl chloride.

The Dow Subpoena

During the investigation of the McCullom Lake brain cancer cases, we were able to develop evidence that there were certain cases of brain cancer among workers in the industry-wide cohort that Mundt may not have counted.  We developed evidence, supported by Affidavits and Death Certificates and other documentation, evidence that could show that not one but several chemical company workers who died of brain cancer should have been counted but were not counted.

On March 3, 2010, therefore, a subpoena was served on Dow in the Branham case to produce witnesses to testify about its participation in the industry-wide epidemiology studies.  Dow brought in its own legal team to file a motion to quash the subpoena, meaning they asked the trial court to throw out the subpoena and prevent the Plaintiff from taking the testimony.  As if they were separate companies and had not gone through a high-profile, multi-billion dollar acquisition just months before, Rohm and Haas filed its own motion, joining Dow’s request to quash the subpoena.

Dow argued that it was a Michigan corporation and that Plaintiff could only serve a subpoena on Dow there.  In other words, Dow argued that it was not subject to a Pennsylvania court’s jurisdiction.

This was a curious argument and perhaps a poorly timed argument as well.  After all, Dow had not only acquired Rohm and Haas, but, at the very time that these motions were being filed, Dow was erecting a large Dow red-diamond logo sign high above the Rohm and Haas headquarters at 5^th and Market Streets, just a few blocks from the court house.

The trial court rejected Dow’s arguments and ordered Dow to produce the company witnesses.  Dow appealed.

One year later, the Pennsylvania Superior Court published its decision affirming the trial court.  The appeals court ruled that Dow’s “argument that as a non-resident Dow is per se immune from subpoena is misguided and does not merit relief.”

The court found, “The installation of a high corporate executive, the erection of prominent signage, and the establishment of ongoing marketing efforts under the Dow brand are not isolated, sporadic acts.  The trial court did not abuse its discretion in concluding that they constituted the carrying on of a continuous and systematic part of Dow’s general business within this Commonwealth.”

There are many other interesting details in the Superior Court’s analysis of Dow’s arguments.  At one point, the Court refers to one of Dow’s arguments as “unsupported, speculative, and in substantial variance with Dow’s original argument on appeal.”  At another point, the Court pointed out that Dow was a point about “settled Pennsylvania law” by citing to cases from Mississippi, Louisiana, Oklahoma and North Carolina.  At another point, the Court noted that Dow had quoted the trial court out of context.

In the end, the Superior Court’s ruling stands, by virtue of the Supreme Court’s decision not to hear any further appeal from Dow or Rohm and Haas.  That means that businesses, like Dow, that do actual business in Philadelphia or elsewhere in Pennsylvania will not be able to avoid the reach of our courts merely because they happen to be incorporated in some other state.

It also means we have forced the largest chemical company in the world to face some important questions about its role in influencing the science of vinyl chloride.  This could well have a major impact on the families of those who have been exposed to vinyl chloride and have then developed brain tumors.

The link to the opinion on the Pennsylvania Superior Court website is no longer available.  But this link should get you to the Court’s 32-page opinion: druganddevicelaw.net/Opinions%20in%20blog/Branham_Rohm%20&%20Haas.pdf.

Studies have shown that cell phone use impairs drivers just as much as alcohol intoxication does. In fact, the federal government estimates that 18 percent of the more than 5,000 fatal car crashes from distracted driving in 2009 involved cell phone use.

Moreover, experts say these numbers surely underestimate the extent of the problem because police at the scene often cannot determine if the driver has been texting or talking before the collision. According to some surveys, one quarter of adults admit to texting while driving and more than 60 percent admit to talking on the phone while driving.

Bottom line, all of this means there are many, many impaired drivers out on our roadways.

In March, 2012, Pennsylvania became the 35th state to outlaw texting while driving in response to the danger of cell phone use while driving.  However, some government officials doubt the law will do very much to make our roads safer because enforcement is going to be a challenge.

Drivers may hold their phones out of sight to avoid being caught.  Of course, if the phone is held below the dashboard, the driver’s eyes are also going to be lowered, away from a clear view of the road.  Enforcement may also be difficult because the new law does not ban talking on the phone or dialing phone numbers.  Police officers may not be able to effectively differentiate between unlawful texting and lawful dialing.

Criminal or not, drivers must still be mindful of the potential liability involved in being distracted on the road.  Clearly, it is negligent to drive while distracted.  In motor vehicle accident cases, a driver may be liable for any injuries or damage caused because of being distracted.

How do you prove that any given car accident was caused by cell phone use? Even the police may not be able to determine if the driver was, in fact, using a cell phone and surely the driver may not readily confess to his or her phone use.

An experienced attorney will know to subpoena cell phone records on your behalf.  Ideally, this should be done as early on after the accident as possible because phone companies may not retain these records indefinitely.  Often, cell phone records reveal that car accidents and calls or texts occurred at the same time.

There have also been cases involving drivers posting updates to Facebook or to Twitter from their smartphones while driving.  These issues will become increasingly part of document and deposition discovery in automobile and trucking accident cases.

If you have been in a serious car accident, please contact a member of our firm so that we can help determine whether you may be entitled to a financial recovery.

There are all sorts of ways to uncover the “doctoring” of records.  If there is a suspicion of medical records alteration, for example, it may be possible to retain a handwriting expert, someone who can identify changes to records based on use of different inks or writing in different hands.

Sometimes, record alteration becomes apparent based on what is not produced during discovery.  For example, one time, a hospital withheld portions of a medical chart when the patient requested copies of her records.  The problem for the hospital in that case was that a copy of the chart had previously been sent to another provider.  When we requested the requested the records from that other provider, the missing pages from the hospital’s chart turned up, too.

Alteration of medical records is a serious business.  Section 1303.511 of Pennsylvania’s Medical Care Availability and Reduction of Error (“MCARE”) Act provides that a health care provider’s alteration or destruction of medical records constitutes grounds for suspension.

Recently, a new litigation tool for determining possible record alteration has gained favor. The alteration of medical records can be uncovered through discovery about a facility’s audit trail. 

An audit trail is an electronic means of tracking access to a system, document or record, including the modification, deletion and addition of documents and records.  In cases involving medical malpractice, nursing home negligence, and pharmaceutical errors, an audit trail can reveal whether a medical provider has falsified or modified significant data.

In matters involving the negligent labor and delivery of a child, for example, where oxygen deprivation is at issue and timing is everything, an audit trail may reveal that the timed entries for fetal monitoring do not correspond with the times recorded by a nurse or a physician in the progress notes of the chart.

In cases of nursing home abuse, where the risk of pressure sores is great, omissions in the audit trail may signify that an elderly patient was not being consistently turned in bed by the nursing staff, as required by accepted standards of care.

As more hospital and medical facilities turn to maintaining electronic rather than paper records, the request for production of an audit trail has become increasingly useful.  Although some hospital and medical facilities may contend that an audit trail does not exist, facilities are required by federal law to maintain and preserve some form of an audit control to record activity that involves protected health information.

A patient or his/her representative can obtain a copy of the electronic medical chart upon request. Unfortunately, hospitals often resist releasing medical records to patients.  There is no question that hospital staff will also resist releasing information about the audit trail of a particular hospital chart.

We have significant experience dealing with hospital records custodians and medical office staff regarding the obtaining of medical records.  We are accustomed not only to obtaining medical records for our clients, but we are familiar with what is supposed to be included in a hospital chart.  This is key to being able to determine if the entire medical chart has been turned over or whether portions have improperly been withheld.

As a routine matter in cases we take on that involve medical issues, we also make a point of obtaining information about the audit trail for hospital medical records.  A patient certainly is entitled to have access to medical records, including the audit trail data on a hospital chart, but the reality is that most of the time a lawyer’s request receives a different level of attention.  The same is true for requests for audit trail data.

Practitioners should make a point to obtain and review the audit trail prior to depositions.  In a deposition, the witness often must explain why significant timed entries do not correspond to a stated time or to a handwritten note.  An audit trail can also reveal omissions, such as where a provider has not accessed the electronic system for a prolonged period of time.  These discrepancies can all be exposed during a deposition and, depending on the witness’ handling of these issues, this type of questioning can create a critical point of pressure in a litigation.

Any time there is evidence of record alteration, the pressure on the defendant and the defendant’s insurance carrier is enormous.  Imagine how a jury would evaluate testimony from a defendant in a case if it comes out that the defendant altered the record.  The effect on the case overall can be profound.

If you have a question about a potential case or, if you are a practitioner and you have a question about audit trail discovery, please feel free to get in touch with an attorney in our office.