Posts Tagged ‘access to justice’

Today, Public Citizen joined with other consumer advocacy groups in a letter to the debt commission (PDF) condemning a dangerous proposal by Erskine Bowles and Alan Simpson, Co-chairs of the National Commission on Fiscal Responsibility and Reform, to use “comprehensive medical malpractice liability reform to cap non-economic and punitive damages and make other changes in tort law” as a way to reduce the national debt and urging the body to remove it from its final report.

Patients’ legal rights continue to be a scapegoat in the public debate on solutions to the country’s skyrocketing health care costs.  However, the proof is in the pudding. When Public Citizen examined Texas’ experience with strict liability limits (PDF) since their adoption in 2003, we found that injured patients in Texas lost their access to the courts but the restrictions did not translate into health or cost benefits. Instead, the opposite has occurred. In Texas: the uninsured rate has increased, remaining the highest in the country; health insurance cost has more than doubled; spending increases for diagnostic testing (measured by per-patient Medicare reimbursements) have far exceeded the national average; and the cost of diagnostic testing in Texas (measured by per-patient Medicare reimbursements) has grown 50 percent faster than the national average.

Clearly, tort reform will not cut the fat.

To blame high costs on medical malpractice litigation is to ignore the facts. In 2008, the cost of medical malpractice liability fell to less than 0.6 percent of the $2.1 trillion in total nation health care costs as measured in 2006. In fact, there are nearly 10 times as many injuries caused by medical negligence (PDF) as there are malpractice claims. (more…)

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All around the country, newspapers’ consumer journalists are taking notice and reporting on the injustice of forced arbitration. Most recently, Matthew Hathaway, columnist for the St. Louis-Post Dispatch, posted a short article on the “The Savvy Consumer” blog. While Hathaway reports on the biases and unfairness of the predatory corporate practice, he’s a tad overly optimistic that it may soon come to an end.

As Hathaway noted, the new Consumer Financial Protection Bureau created by the recently passed financial reform law will be authorized to ban or restrict forced arbitration. So will the Securities and Exchange Commission. But here’s what Hathaway leaves out: millions of other consumer contracts exist that fall outside of these agencies’ jurisdictions. The CFPB and SEC can restrict investor-broker contracts and contracts for other financial products as designated under the new law. But they have no authority to restrict or ban forced arbitration in numerous consumer contracts, such as those for employment, nursing homes, cell phones, and home building.

Hathaway guesses that the days of forced arbitration “could be numbered.” His optimism is refreshing. But even with SEC and CFPB’s new authority, we still need Congress to pass the Arbitration Fairness Act to eliminate pre-dispute forced arbitration from all consumer contracts for good.

Christine Hines is the consumer and civil justice counsel for Public Citizen.

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Yesterday evening I met with a financial advisor from a large financial company. The meeting was going well and I was ready to sign on for much-needed financial advice until we started discussing the agreement.

First, he told me that the agreement was not a contract. I quickly corrected him and explained that they were one and the same. Then I started flipping through the three-page document. Lo and behold, there it was, in bold: an arbitration clause AND a statement claiming that there is no agreement to enter into any class action arbitration.

I explained to him in my excitable way that I wouldn’t sign the document, explained to him what the arbitration clause meant and its impact on consumers. He was shocked. In a very brief moment he removed the professional mask and showed that he was appalled by the provision’s meaning. I told him about the need to support the Arbitration Fairness Act in Congress. He asked if it would eliminate arbitration. I explained that it wouldn’t – but it would make it voluntary, rather than forced. (more…)

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For decades, Public Citizen has urged Congress and regulators to address the patient safety crisis. We told them that reducing medical errors would also reduce the claims and the associated costs. Today, the RAND Corporation – an independent, non-profit research firm – released a report confirming our assertions. They write:

Our results showed a highly significant correlation between the frequency of adverse events and malpractice claims: On average, a county that shows a decrease of 10 adverse events in a given year would also see a decrease of 3.7 malpractice claims. Likewise, a county that shows an increase of 10 adverse events in a given year would also see, on average, an increase of 3.7 malpractice claims. According to the statistical analysis, nearly three-fourths of the variation in annual malpractice claims could be accounted for by the changes in patient safety outcomes. (Emphasis added)

In other words, the best way to reduce medical malpractice lawsuits is to increase patient safety. You can read the report for yourself here.

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In 2007, John Perz (whose story has been covered by Consumer Reports, and who tells his own story here) bought a used car from a local lot in San Diego. The car had a rattle, but the salesman promised Perz that if he made an appointment, the rattle would be fixed free of charge. When he brought the car back the next week, however, the mechanic told him that not only could the car not be fixed, but the 48 hour return window had already passed, meaning Perz was stuck with a car that rattled and rolled. He had the car inspected and learned that the certified vehicle he purchased had substantial water damage, possibly from a flood, and had previously been wrecked.

However, when purchasing the car, Perz signed the dealer’s arbitration agreement, meaning that despite hiring a lawyer his case would never reach a judge. Despite being advertised as faster than litigation, after three years his case is still in arbitration. Now he’s up against an arbitrator whose record against consumers is abysmal.

Consumers for Auto Reliability and Safety produced this video detailing Jon Perz’s fight against the dealer and against arbitration. Check it out!

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The President and Republicans sparred over health care in yesterday’s “bipartisan” meeting. One of Republicans’ favorite talking points is so-called “tort reform”- or restricting patients’ ability to hold negligent doctors and hospitals accountable for injuries they cause. They argue that liability limits will reduce health care costs.

The news out of Texas is that its comprehensive liability restrictions have not lowered costs at all. Despite its efforts to shield bad doctors, Texas health care costs have risen dramatically over the last six years.

Access to court is the only way that individuals can hold more powerful, sophisticated industries, such as doctors and hospitals accountable for wrongdoing.

Public Citizen sent a letter to Congress yesterday urging that it not include malpractice system changes in the health care bill, and to focus instead on the patient safety crisis facing the country.

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No longer are policy makers claiming that large leaps in health care costs are due to malpractice lawsuits. It is now the fear of litigation, according to a memorandum released by Public Citizen
Doctors are finding it necessary to practice ‘defensive medicine,’ ordering excessive tests and procedures for patients.

Let’s look at the facts:

  • In 1999 it was reported that between 44,000 and 98,000 people die every year due to avoidable medical mistakes, according to the Institute of Medicine.
  • In 2004 it was estimated that more than 190,000 people die annually due to medical mistakes, according to hospital rating company HealthGrades.

Patient Safety is a problem. An alarmingly big problem.

  • Avoidable medical mistakes are reported to amount to between $17-29 billion in costs every year, according to IOM’s 1999 report
  • Enforcing just 10 patient safety measures would save a $35 billion per year, according to Public Citizen 2009 study

With the statistics laid out it is easy to see that something should be done to hold the doctors and hospitals responsible for these outstanding costs. Why then is the problem being pushed as litigation and the proposed outcome resting with reducing patients’ legal rights?

The memorandum clearly illustrates key points that demonstrate the problem lies within the current medical malpractice litigation system.

The tough problem needs to be addressed. Patients are not receiving the correct amount if at all of compensation for medical malpractices. The current payments are at an all-time low and are only for serious outcomes. What is even more disturbing is that nothing is being done to prevent more medical errors in the future.

Public Citizen stated it best, “Policymakers from both parties should set their partisan instincts aside and reduce patients’ needs to seek redress instead of limiting their rights to it.”

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