Read more about heart disease in women at the AHA, including warning signs and symptoms. Read more at The Savory Tort about how we're losing the war on heart disease and need to retake the upper hand.
Friday, February 3, 2023
Go Red for Women
Friday, January 27, 2023
We're losing the war on heart disease
Last week, my wife's life was at risk because we did not understand that women in heart distress do not necessarily experience the symptoms one might expect; indeed, they might have no chest pain at all.
My wife, a law librarian at Roger Williams University, is now home from Rhode Island Hospital (RIH) after a scary and unpleasant five nights. She will be OK.
But two weeks ago, she was misdiagnosed by her primary care provider. We too thought she was suffering only a stomach inflammation. In fact, she was experiencing a cardiac event.
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Pixabay CC0 |
My hat's off to the staff at RIH. In the ER, they respectfully heard out our recitation of symptoms and amateur self-diagnoses, erroneous as it turned out, and nonetheless rapidly and tenaciously checked out the heart. In the blood work, they discovered enzymes indicative of heart-muscle damage at 500 times normal levels. Our primary care provider had not tested for that.
You're going to hear a lot about women's heart health in the coming weeks, because February 3 is National Wear Red Day, a project of the American Heart Association (AHA) that kicks off American Heart Month. But I've known about Wear Read Day, and I've even worn red. I've known that symptoms of women's heart trouble are elusive. Still, I did not recognize the cause of my wife's distress. So this message can't be delivered early or often enough.
The day my wife came home, the January/February AARP Bulletin landed on our doorstep with the cover story, "America's War Against Heart Disease." A subhead reads, "75 years after it started, we’re losing the battle against our number 1 killer."
This isn't just news for seniors. Sari Harrar reported, "Death rates from heart disease rose 8.5 percent for adults ages 45 to 64 between 2010 and 2020." My wife is under 50.
The AHA says that women with any of these symptoms should "call 911 and get to a hospital right away":
- Uncomfortable pressure, squeezing, fullness or pain in the center of your chest. It lasts more than a few minutes, or goes away and comes back.
- Pain or discomfort in one or both arms, the back, neck, jaw or stomach.
- Shortness of breath with or without chest discomfort.
- Other signs such as breaking out in a cold sweat, nausea or lightheadedness.
- As with men, women’s most common heart attack symptom is chest pain or discomfort. But women may experience other symptoms that are typically less associated with heart attack, such as shortness of breath, nausea/vomiting and back or jaw pain.
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Our home pharmacy since my wife came home. RJ Peltz-Steele CC BY-NC-SA 4.0 |
For decades, women were underrepresented in clinical trials and their heart attack symptoms dismissed in emergency rooms as stomach pain or even emotional problems. The [AHA] published its first treatment guidelines for women in 1999, but it's taken longer for science to discover that the anatomy and electrical pathways of the female heart are unique, which may help explain why a woman's heart attack symptoms can be different from a man's.
Yet women's heart health is still understudied, according to a 2022 review of research in the journal Circulation Research, and women's heart attack warning signs are too often overlooked....
... [H]ealth professionals seem to have the same difficulty identifying heart disease in women: The same study found that when women suffering heart attacks arrive at an emergency room, they experience longer wait times .... Another study found that women tend to wait longer before calling 911 when they're having a heart attack—up to 37 minutes longer.
This is not so simple as a problem of bias in perspective. All of my wife's doctors in primary care and at RIH were women. But the primary care providers failed to check out the heart, and the ER doc picked up on the possibility immediately.
Farrar's reporting showed that socioeconomics, race, and ethnicity further compound the problem of under-diagnosed or misdiagnosed heart disease. There might be real genetic differences based in race, but they cannot explain a 21% higher mortality rate for African-American adults over white adults, nor the increase in that gap over time, and a higher incidence of heart disease in Hispanic women and men over white women and men.
There are many viable explanations for disparities in outcome by race and ethnicity, importantly including consequences of wealth disparity, such as access to healthy food. But costs and fear of costs no doubt lead the pack of problems.
My family is fortunate to have access to healthcare. Insurance is available to us through both of our employers, which pay a portion of the premiums. Co-pays and deductibles for us are expensive, but manageable.
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The Rhode Island Hospital complex. Kenneth C. Zirkel via Wikimedia Commons CC BY-SA 4.0 |
A New York Times investigation featured on The Daily podcast this week opened with the story of a woman who stalled her emergency care for fear of costs. After at last seeking help and being hospitalized, she was responsible for a $1,900 tab. But that was too much for her fixed income. She struggled to meet even the demand of a payment plan while still buying food.
Alas, the Daily story was not even about costs. Rather, the investigation revealed that that patient's experience represented a prevalent norm at "nonprofit" hospitals that, by law, are not supposed to charge anything to people who can't afford it.
Some numbers about the Washington hospital highlighted in that story: Annual revenue: $27 billion. Tax break for "nonprofit" status: $1 billion. CEO's annual salary: $10 million.
The patient in the story was given a payment plan, but never an option not to pay. She prioritized the payments over her groceries because she felt indebted to the hospital for having saved her life. She imagined her money going to the staff who took care of her.
We are fortunate also because we live in the small state of Rhode Island and are only a short drive away from hospitals in Providence. Rural healthcare in America is another matter. In the Louisiana town where my wife grew up, and we still have family, the closest hospital is 70 miles away, and it's no tribute to cutting-edge technology.
On The Takeaway from WNYC this week, Harold Miller, president of the Center for Healthcare Quality and Payment Reform, explained why more than 600, or nearly 30% of rural hospitals nationwide are at risk of closing, and 141 have closed since 2010.
A federal aid package to save rural healthcare might be well intentioned but is misguided, Miller said, because to be eligible, a hospital must shut down its inpatient services. But there are no resources to transport patients to larger urban hospitals hours away. The urban hospitals don't have the capacity for that influx anyway. The resulting healthcare system we are now creating would have failed catastrophically had it been in place during the pandemic, when inpatient capacity was stretched to the limit. And that's to say nothing of separating patients from their families by long distances.
It's critical that every person, man and woman, be enlisted in the war on heart disease. Everyone especially should be on guard for the risk to women that might not be easily identified by symptoms. We're going to have to rely on ourselves and one another all the more with a healthcare system that is inconsistently resourced and increasingly ill equipped for the fight.
Friday, October 7, 2022
Reversal in eldercare case highlights limits of qualified immunity, low injury threshold of intentional torts
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Boston police officer assists an elderly pedestrian in 2014. (Alex Klavens CC BY 2.0 via Flickr) |
Gallagher v. South Shore Hospital arose from an apparently mismanaged effort to investigate and redress a report of elder abuse; the report proved unfounded. The plaintiff caretaker and elder man alleged that a police officer and state agent entered their home without sufficient suspicion or warrant and removed the man from the home, and that a hospital then held and tested the man for five days against her and his will.
Most of the court's opinion comprised blow-by-blow facts and the Fourth Amendment analysis. However, the court opined as well on a range of common law tort claims against the defendants: a police officer, a state-contracted elder service agent, and South Shore Hospital, Inc., for trespass, false imprisonment, and battery. The police officer defended on grounds of qualified immunity, inter alia.
In proceedings on various motions, two trial court judges awarded summary judgment to all defendants. The trial courts held the state actors protected by qualified immunity and the tort claims flawed.
In the estimation of the Appeals Court, the trial courts erred. The Appeals Court reversed and remanded as to all defendants, finding that live questions of fact precluded the summary judgments. In my estimation, the error on qualified immunity was informative, and the errors on tort theories were egregious.
In articulating the qualified immunity theory, the police defendant and eldercare agent pointed to a concurrence by Justice Kavanaugh in a 2020 U.S. Supreme Court case, Caniglia v. Strom, in which the Court held unanimously that a warrantless home entry and firearm seizure violated the Fourth Amendment. The Appeals Court explained:
[Officer] Pompeo argues that the facts at bar are similar to the example of an elder welfare check that Justice Kavanaugh described in his concurring opinion in Caniglia. In his example, "an elderly man is uncharacteristically absent from Sunday church services and repeatedly fails to answer his phone throughout the day and night. A concerned relative calls the police and asks the officers to perform a wellness check." Justice Kavanaugh stated that "[o]f course," in those circumstances, the officers may enter the home. Pompeo argues that she reasonably thought [elder plaintiff] LaPlante was injured or in imminent danger on June 25 because no one responded to the doorbell, knocks, or telephone call, and because [caretaker] Gallagher had left LaPlante in the car with strangers two days earlier.
The trial court found these facts to constitute the requisite exigency to enter the home. The Appeals Court disagreed.
The facts in this case are nothing like the hypothetical Justice Kavanaugh described. The implication of the hypothetical is that the elderly man lives alone. LaPlante did not. Moreover, Gallagher and LaPlante were not out of touch or nonresponsive, as was the elder in Justice Kavanaugh's hypothetical. Pompeo and another elder care worker had seen LaPlante two days earlier ... and his appearance was not a cause for concern....
Further, even if Pompeo could see LaPlante on the couch [through a window], neither he nor Gallagher had any obligation to answer the door or respond to the knock. "When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak." Kentucky v. King (U.S. 2011). A jury could find that Gallagher's lack of response to a knock on the door when she was not expecting visitors, and her absence from the room in which LaPlante was sleeping, did not give rise to a reasonable belief by Pompeo that LaPlante was unattended and suffering an emergency.
In an age in which the public is increasingly skeptical of police qualified immunity, the analysis is refreshing for taking seriously the doctrine's objective check on police perception. The likely failure of qualified immunity here leaves the state defendants vulnerable to the civil rights and tort claims on remand.
On the tort claims, the trial courts erred egregiously in dismissing for perceived want of injury. My first-semester, 1L Torts students can tell you that none of trespass, false imprisonment, nor battery requires physical injury, in the sense of impact. These intentional torts all balance a higher culpability state with a lower injury threshold. The lower threshold rests upon the theory that tort objectives such as preserving the peace and averting vigilantism justify recognition of insults to personal integrity or honor, even in the absence of physical or pecuniary loss. The notion is as old as the Roman law of iniuria.
As to trespass, the Appeals Court opined, quoting Massachusetts high court precedents, "It has long been the 'general rule' in this Commonwealth that 'possession of real estate is sufficient to enable the parties in possession to maintain an action against a stranger for interfering with that possession.' Proof of injury is not required; 'the action is founded merely on the possession.'"
Similarly, false imprisonment is accomplished by the plaintiff's awareness of confinement, and battery by an "offensive," that is, non-consensual nor justified-by-social-contract, touching of the plaintiff. In false imprisonment, "[i]t is enough if a person's personal liberty is restrained," the Appeals Court opined. And even if the elder man, not legally competent at the time, "was not aware of his confinement, Gallagher, his proxy, was." The court further relied on, while expressly not adopting, similar sentiments in the Second Restatement of Torts.
On each theory, the plaintiff is permitted to prove compensable loss above and beyond the minimal, prerequisite condition of injury. The caretaker alleged that the elder man in fact deteriorated physically while in hospital care, evidenced by an enlarged bedsore and diminished mobility. And the facts established to date indicate that the elder man had been subject to blood and urine testing in the hospital without the consent of the caretaker, his only proxy: a more-than-de-minimis, physical insult.
The same reasoning that unwound qualified immunity negated any defense of emergency on which the trial courts relied to dismiss the tort claims as a matter of law. And the hospital claimed no emergency over the elder man's five-day residency, such as would have justified failing to seek the caretaker's consent.
Finally, I was struck by a footnote the court dropped that speaks not only to the sad facts of this case, but to the broader context of our present, vigorous public policy discussion about the role of police in society and our infrastructure for social services, such as physical and mental healthcare. The court lamented:
[The eldercare agent who precipitated investigation and police involvement,] Bessette[,] and Gallagher were strangers to one another. Perhaps if Bessette had agreed to assist Gallagher by sitting with LaPlante for an hour while Gallagher did grocery shopping, she could have accomplished her investigatory purpose—allowing her to speak with LaPlante alone— and we might not have a case at all. Pasqualone v. Gately (Mass. 1996) (if officer had asked gun owner to voluntarily turn over his weapons after his license was revoked rather than demand them with considerable show of force, we might have a different case).
Recently, my wife and I read in the New York Times Magazine about the "viral nightmare" that exploded at Arizona State University from students' feud over the "multicultural safe space," fueled in no small part by the university's hyper-formalist response.
"If only someone had sat them down and made them listen to each other ... ," my wife sighed.
The instant case is Gallagher v. South Shore Hospital, Inc., No. 21-P-207 (Mass. App. Ct. Oct. 6, 2022) (temporary posting). Justice Vickie L. Henry wrote the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Sullivan.
Sunday, July 3, 2022
Good riddance, covid immigration testing
The sign well summed up how I was feeling about the chaotic guidance coming from the federal government at the time.
I never posted the photo, but figured I'd pull it out now to celebrate the dropping of the test requirement for immigration.
Of course, I now have about $300 worth of unused tele-medicine test kits I no longer need. Incidentally, apparently, my pharmacy insurer is not obligated to reimburse me for those, despite the President's promises. Promises, promises, Joe. But that's another story.
Wednesday, February 3, 2021
Court: Employer has no free speech right to republish worker healthcare data that state provides conditionally
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Confidential (Nick Youngson Alpha Stock Images CC BY-SA 3.0) |
A state program imposed assessments on employers whose employees relied on publicly subsidized healthcare. The state offered to tell the employer which employees triggered assessment, so that the employer could review, and if appropriate challenge, the assessment. But the names came with strings attached: employers were required to promise that they will use the names in the administrative process only and not republish them.
Emerald Home Care, Inc., challenged the assessment program and conditional disclosures as violative of procedural due process and the First Amendment.
Affirming the Superior Court, the Appeals Court rejected both arguments. As to due process, the state provided employers ample notice and opportunity to be heard in resisting the assessments. As to the First Amendment, the state may attach conditions to access to confidential information.In the First Amendment analysis, the court cited two U.S. Supreme Court oldies but goodies: LAPD v. United Reporting (1999) and Seattle Times v. Rhinehart (1984). In LAPD, the Court allowed a statute to condition access to criminal histories on non-commercial use. In Seattle Times, the Court allowed a protective order on discovery disclosures in a defamation-and-privacy case in which a newspaper was the defendant.
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Justice Desmond |
The case is not remarkable for its holding, but it marks an ongoing tension between U.S. and foreign law over free speech, privacy, and data protection. In the United States, the First Amendment often is a wrench in the works of government efforts to regulate information downstream from its disclosure to a third party. Legal systems elsewhere in the world are more comfortable with the notion that a person's privacy rights may tag along with information in its downstream transfer from hand to hand, outweighing the free speech right to republish.
I noted some years ago that in some areas of U.S. law, including freedom of information (FOI), or access to information, we can see examples of American privacy expectations that accord with, not diverge from, European norms. Downstream control by contract has been a key advancement in making some jurisdictions willing to furnish court records to information brokers. Binding a broker to adjust records later as a condition of receipt helps to solve problems such as expungement, the American judiciary's equivalent to the right to be forgotten.
The case is Emerald Home Care, Inc. v. Department of Unemployment Assistance, No. AC 20-P-188 (Mass. App. Ct. Feb. 2, 2021). Justice Kenneth V. Desmond Jr. authored the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Lemire.
Thursday, October 22, 2020
Opioids, coronavirus add up to dangerous interaction
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pxfuel.com |
DOJ settled with Purdue Pharma in civil and criminal investigations, and with Sackler family shareholders in civil investigation. Purdue will admit that it conspired to defraud the United States by misleading and impeding enforcement by the Drug Enforcement Administration for almost 10 years. Purdue also will admit to conspiring to violate the Federal Anti-Kickback Statute with inducements to doctors to prescribe opioids for almost eight years. (Purdue Plea.)
On the civil side, Purdue will settle, without admission, allegations of false claims to federal healthcare programs, of improper inducements to prescribing doctors, and of improper contracts with fulfilling pharmacies. The government will have an unsecured claim on $2.8bn in Purdue's bankruptcy. (Purdue Settlement Agreement.) Purdue shareholders in the Sackler family will pay $225m in settlement of allegations that they approved an intensified opioid marketing program. (Sackler Settlement Agreement.)
The settlements do not resolve state claims.
Opioids have taken more than 450,000 American lives since 1999, The New York Times reported yesterday, citing CDC research. COVID-19 deaths now exceed 220,000, according to the CDC.
In 2020, the coronavirus pandemic nudged the opioid epidemic out of the number one spot for enemy of public health. But the two are hardly mutually exclusive. Addiction, of all types, interacts with the threat of coronavirus in a mutually exacerbating feedback loop. Joseph Grillo, M.D., J.D., and an alum of my torts class, raised a warning flag on his blog yesterday.
"Two great epidemics of our generation are intersecting in ways that are additively deadly, and which highlight the urgent ways we must respond to some of the underlying fault lines in our society that are worsening both crises," Dr. Grillo wrote.
Read more about substance use disorders (SUD) and coronavirus at A Pandemic Within a Pandemic, Joseph Grillo, M.D. Medical Legal Consulting, Oct. 21, 2020.
Thursday, October 15, 2020
Court: Family of elder-care resident may use rare 'bill for discovery' to investigate how broken foot occurred
In an unusual case last week, the Massachusetts Appeals Court allowed a "bill for discovery" to proceed despite its arguable incompatibility with rules of civil procedure.
Mary T. Atchue, an elderly resident in an assisted living facility in Worcester, Massachusetts, sustained a broken foot while being moved. In an action maintained by her family since her death, Atchue filed a "complaint for discovery," based in equity.
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The viability of a bill for discovery is dependent on the viability of the underlying potential claim in litigation, the court further held. Atchue has a viable theory on tolling the statute of limitations, and her claims survive her death under the state survival statute. So a bill for discovery remains available.
I don't usually dig into civil procedure cases, but this one caught my eye because of the unusual disposition in pre-litigation discovery. I've written with approval about the use of the access to information law, or freedom of information act, in South Africa having been used as a pre-litigation discovery device, specifically, in fact, for a potential plaintiff to investigate the possibility of negligence in healthcare services.
Shaped by the experience of apartheid, the South African law, and comparable laws elsewhere in Africa modeled on it, allow access to information in the private sector when the complainant can demonstrate sufficient need grounded in civil rights.
The court vacated dismissal and remanded.
The case is Atchue v. Benchmark Senior Living LLC, No. 19-P-125 (Mass. App. Ct. Oct. 5, 2020). Justice Vickie L. Henry wrote the opinion for a panel that also comprised Justices Rubin and Wolohojian.
Sunday, October 11, 2020
Oops. We accidentally linked healthcare to your job.
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mohamed_hassan (pixabay.com) |
I stand with the rest of the world in awestruck horror of America's stubborn insistence that access to healthcare should be a function of both one's wealth and the largesse of one's employer.
Critics of the free market are quick to conclude that it has failed the American worker. Economic libertarians are just as quick to tout the essentiality of free contract. Before we make any decisions about the free labor market, maybe we should try it out. A market in which a worker can't change jobs for fear of a recurring cancer or a bankrupting accident is not a free labor market.
For the NPR podcast Throughline, Lawrence Wu set out recently to explain how we arrived at the problem of employer-dependent healthcare. The description of the episode, "The Everlasting Problem" (Oct. 1, 2020), reads:
Health insurance for millions of Americans is dependent on their jobs. But it's not like that everywhere. So, how did the U.S. end up with such a fragile system that leaves so many vulnerable or with no health insurance at all? On this episode, how a temporary solution created an everlasting problem.
For This American Life and Planet Money, Alex Blumberg and Adam Davidson also addressed this subject back in 2009. Their bit ran only 11 minutes, but I have never forgotten the shocking fact that "four accidental steps led to enacting the very questionable system of employers paying for health care."
Saturday, October 10, 2020
Arkansas defense of healthcare law invites Supreme Court justices to weigh in on federal preemption
The state argued against federal ERISA and Medicare part D preemption of state regulation of pharmacy benefits managers, the companies that manage most Americans' prescription drug benefits. The case affords an opportunity to see what newer justices have to say about preemption.
Preemption is a curious area of law. Ostensibly statutory interpretation, it has overtones of federalism, as judges are called on to chart the scope of congressional intent as exercised in a power domain shared with state legislatures. Confounding theories of interpretation, textualism is often insufficient to resolve preemption problems, because statutory schemes, such as the framework for employment-benefit regulation, may be left ambiguous as to what the scheme does not regulate, yet can be undermined by state laws with incompatible purposes. As a result, preemption cases in the U.S. Supreme Court have been known to render splintered decisions and odd-bedfellow pairings of justices. More than once, preemption precedent has been criticized as inconsistent and messy.
In an op-ed in The Arkansas Democrat-Gazette (ADG) in 2015, I wrote that Arkansas Act 900 raised serious and compelling questions of federalism. I didn't pick sides—indeed, each side claims to be on the side of consumers—but I did describe the Arkansas Attorney General's dismissive response to challenge of the statute as glib. The Eighth Circuit subsequently held the law preempted. Forty-five states, D.C., and the Trump Administration have sided with the appellant AG, according to the ADG.
The case is Rutledge v. Pharmaceutical Care Management Association, No. 18-540 (argued U.S. Oct. 6, 2020). Ronald Mann wrote an excellent analysis of the case, on the merits and implications, at SCOTUSblog.
Friday, May 8, 2020
Shielding business from coronavirus torts neglects deep-seated dysfunction in litigation, health insurance
To oversimplify, businesses are worried about being sued if a worker or customer contracts the virus in the workplace or in a retail space. Tuesday morning, U.S. Chamber of Commerce Executive Vice President and Chief Policy Officer Neil Bradley told National Public Radio that the Chamber is not asking for blanket immunity, but "a safe harbor ... against frivolous lawsuits."
"No one wants to protect bad actors here," Bradley said. He suggested that liability could be predicated on gross negligence or "willfully forcing workers to work in unsafe conditions," which, legally speaking, is recklessness.
Protecting business from litigation is the Chamber's bread and butter, and that doesn't make it the Big Bad Wolf. Businesses, especially small businesses, represent real people, owners and workers, who, in the absence of any extended public safety net, need to work to make ends meet. Facing bankruptcy because of prolonged closure or because of the inevitability of a contagious disease surmounting all precaution is a heck of a catch-22 to put a business in. From that perspective, the Chamber's position seems a fair ask.
At the same time, the Chamber's advocacy highlights two enormous socio-legal problems in America: transaction costs in tort litigation and employment-based health insurance. A safe harbor would brush both these problems back under the rug.
It isn't tort litigation per se that business fears; it's the cost of that litigation. Corporate defense—that's the kind of law I practiced a million years ago—wins in litigation with an enviable record. The burden of proof rests with the plaintiff, which means that even meritorious causes may fail upon the vagaries of evidence. What's more, the usually superior resources of the corporate defense bar warp the playing field of an adversarial contest predicated on the fallacy that the truth will out. But the defense's advantages don't change the fact, for many reasons I won't here explore, that litigation costs a fortune.
As a result of runaway transaction costs, everyone loses. Plaintiffs and would-be plaintiffs with meritorious complaints wind up not suing, winning nothing, or winning far less than will make them whole. Plaintiffs without meritorious complaints may nevertheless win in settlement. Meanwhile the cost of defense in every scenario, from insurance in anticipation of litigation to fees in its management, is visited on American business and passed on to the American consumer. And the mere risk of those costs results in over-deterrence that burdens the American marketplace, distorting economic behavior. This dysfunction renders the U.S. personal injury system a laughingstock elsewhere in the world.
So if the deck is so stacked against plaintiffs, why do they sue anyway, courting an invariably unfulfilling outcome and burdening even prevailing defendants? That leads us to the second problem, our dysfunctional health insurance system.
An injured person might wish not to sue, yet become a plaintiff anyway; if the person is insured in any measure, the insurer will make the choice. And notwithstanding the intervention of insurance, our healthcare system usually leaves an injured, would-be plaintiff holding a bag of devastating, bankruptcy-inducing invoices. (I asked, rhetorically, earlier this week, what perversion of American values causes a working person diagnosed with terminal cancer to have to spend his precious last year of life carving out time from family and chemotherapy to do fundraising.) In the American litigation and health insurance systems, a plaintiff sues against all odds because the plaintiff has no other choice. And in a perverse feedback loop, plaintiff and plaintiff's insurer are permitted to pin their hopes on the likelihood that the threat of excessive transaction costs will shake loose a settlement upon even the weakest of claims.
The problem of healthcare costs is compounded by America's stubborn insistence on employer-based health insurance. Focused on the bottom line, employers effectively make advance healthcare decisions for workers, which, naturally, increases incurred costs for the workers who become patients. With precious little control over their healthcare choices, but afraid of wholly losing coverage, risking food and shelter for themselves and their families in a country that eschews social safety nets for people while bailing out corporations, workers make irrational market choices, such as working for less than a living wage, accepting a salary to obviate overtime, going to work in unsafe conditions, and going in sick. We got into this mess entirely by accident, as Planet Money reported in 2009, and we seem helpless to get out of it. Ironically, now, the Chamber seeks to protect business against a litigation problem that results in large part from employers' own choices, however economically rational, to leave workers unprotected from catastrophe and trapped in a job by an unlevel labor market.
In the theoretical American tort system, the way it works when I teach its rules and policies to law students in America and Europe, the businesses represented by the U.S. Chamber should not be worried about tort lawsuits. The test for negligence-based liability in American tort law is simply unreasonableness. A business that takes reasonable measures to protect workers and customers against infection would suffer no liability, even given the inevitability that contagion will still happen in the face of reasonable precautions.
The truth of the matter is quite different from the theory, and Bradley's statement to NPR demonstrates the divergence. On the one hand, Bradley said that business must be protected against "frivolous lawsuits." The problem with that rationale is that the legal system already provides for potentially hefty penalties and sanctions against any plaintiff or plaintiff's lawyer who would try to prosecute a truly frivolous lawsuit.
On the other hand, Bradley said that businesses should be liable only upon a heightened culpability standard, gross negligence or recklessness. "No one wants to protect bad actors here," he said. Someone who is grossly negligent or reckless is not necessarily bad; bad is a normative judgment and not a workable legal standard. Colloquially, he is equating bad with culpability, and that's fair. But if the equation holds, why is a negligent business not also bad? Is every negligence lawsuit necessarily a frivolous lawsuit?
Bradley made a strategic semantic choice. Mention of the "frivolous" is calculated to evoke a gut reaction of displeasure in Americans who have been conditioned by the heavy media messaging of tort reform advocacy.
But let's for the moment cut Bradley and the Chamber some slack. From where they sit, frivolous cases and negligence claims are equally problematic. That's because plaintiffs are compelled by the circumstances of our dysfunctional systems to sue in negligence even when the merits might not bear out the claim. In other words, the brokenness of our litigation and healthcare systems over-incentivizes injured persons to litigate. A plaintiff decides to sue because of desperate need for compensation, not because of the strength of the claim that the defendant is blameworthy.
Negligence isn't the thing that's broken. For my money, negligence, meaning the reasonableness test, applied by a Seventh Amendment jury, remains one of the greatest innovations in law in the last two centuries and has proved a worthy American example for the world.
Our litigation system is broken. And our health insurance system is broken. Adoption of a safe harbor for defendants within those systems as they exist now will just mean that when a business is negligent, and a person gets sick as a result, the sick person will bear the cost of the illness and of the business's negligence. That's not how American civil justice is supposed to work. That's not how it was ever supposed to work.
So many pundits, so many of us, Americans and people around the world, have wondered aloud whether this crisis might at last precipitate real and meaningful change, change that might bring people's standard of living into correlation with our fantastic global wealth and technology. We've wondered whether, and we've dared hope that, we stand at the threshold of the Great Realization, from which humankind will never turn back.
In that frame of reference, the safe harbor proposed by the Chamber, or moreover statutory immunity from tort liability, would be a profoundly disappointing portent of business as usual.
My thanks to Professor Rebecca Crootof at Richmond Law for an email that got me thinking about this. Thanks also to any loyal reader who made it this far without pictures. My "Report from a Social Distance Week 7" is delayed but not forgotten; look for it this weekend.
Wednesday, May 6, 2020
In memoriam: Sam Lloyd, TV lawyer 'Ted Buckland'
Sam Lloyd in 2009 (BrokenSphere CC BY-SA 3.0) |
Ted definitely makes my short list of favorite TV lawyers. I'd say he's neck-and-neck with Jackie Chiles for number one in the sitcom genre, edging out Lionel Hutz. Lloyd as Ted also appeared in three episodes of Cougar Town and in three episodes of the short-lived web series, Scrubs: Interns. Lloyd's extensive filmography in other roles dates back to Night Court in 1988 and includes Ricky in Seinfeld. Lloyd talked TV with the AV Club in 2011.
YouTube user nitemare91191 created a "Best of Ted" Scrubs compilation in 2007.
The a cappella comedy included in these clips was not just for laughs. Lloyd and his "The Blanks" (YouTube channel: check out this A-ha cover) were a talented quartet in real life. Lloyd was a nephew of actor Christopher Lloyd.
Zach Braff and Donald Faison also remembered Sam Lloyd at the top of their podcast, Fake Doctors, Real Friends, on Tuesday (cue to 1m30s, duration about 5 minutes).
Lloyd died at age 56 from an inoperable brain tumor diagnosed only a year ago. He leaves behind his wife, Vanessa, and their one-year-old son, Weston. A moving tribute is posted on the family's GoFundMe page, which was started last year to help pay for Lloyd's healthcare.
Rest in peace, Sam Lloyd, and thanks for the comic relief.
Let's take a pause, too, to think about why working people with cancer in the world's 12th richest country need GoFundMe pages to pay for healthcare, and why no one still running for President has a plan to change that.
Maybe it's time for the Great Realization.
Thursday, June 7, 2018
Mass. appellate courts render two wrongful death opinions in attenuated duty and causation
In Dubuque v. Cumberland Farms, Inc. (AC 17-P-266) (June 6, 2018), the Court of Appeals upheld a $20m judgment against the convenience store after inadequate "bollard" protection of a pedestrian who was killed when struck by an out-of-control car. The opinion includes an interesting discussion on evidence regarding the admissibility of past pedestrian-car collisions arguably similar or distinguishable.
Today in Correa v. Schoeck (SJC 12409), the Supreme Judicial Court reinstated Walgreens pharmacy as a defendant in the tragic death of a 19-year-old who was unable to fill a prescription for life-saving medication. The prescription was hung up on paperwork somewhere among pharmacy, doctor's office, and insurer. The court held the pharmacy bound to at least a thin reed of duty in the negligence claim.
Thursday, February 9, 2017
Open Memo re FSA service for Mass. GIC
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