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Do We Want a Supreme Court Justice With Empathy, Intelligence & Heart?

Greg Cusimano — Sun, 24 May 2009 13:09:10 GMT

President Obama will have an opportunity to nominate a justice for the United States Supreme Court to replace Justice Souter who will be leaving the court. President George H.W. Bush nominated Souter in 1990.www.reuters.com/article/politicsNews/idUSTRE54N1EO20090524

The President said he would look for someone “who respects the integrity of the judicial process and the appropriate limits of the judicial role.” He said legal experience, education, and intelligence are foundational. That doesn’t sound so liberal does it? Well in the strict conservative mind-set he made the mistake of saying that “I will seek someone who understands that justice… is also about how our laws affect the daily realities of people’s lives, whether they feel safe in their homes and welcome in their own nation." --Pretty outlandish statement according to some.

Many in the President’s opposition party was upset that he suggested that his nominee have heart and empathy. That goes too far, it was said. Dictionaries define “empathy” as caring, one who has the capacity for understanding and sharing the interest of another—even concern or compassion. We certainly don’t want that in a judge! Some opponents apparently have the power to even change the meaning of words. Sen. Orren Hatch (R-Utah) said that “empathy” is a code word for an activist judge. That’s a new one. I haven’t heard that an empathetic judge meant an activist judge in 41 years of practicing law. Former Republican Party Chairman Ed Gillespie implied on Meet the Press, having empathy is a concern. Others have said that having empathy means judging before one hears the facts. Where does this stuff come from, and how can it be sold? Why would anyone buy it? But it is sold and bought, because people see what they believe, not the other way around.

We wouldn’t want to have a justice that has a heart would we? The President said 95 percent of cases can be judged on intellect, but …”In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be.” Heart must be a bad thing, however when President Bush nominated Harriet Miers he said “I’ve known Harriet for more than a decade. I know her heart, I know her character.”

So maybe heart is OK—maybe it is just a case of whose heart, or whether the heart is hard or not—or maybe it’s about who or what empathy is for—people or big corporate CEOs and their mega corporations.www.cnn.com/2009/POLITICS/05/23/supreme.court.obama/

The President said, he doesn’t want someone that just sits in an ivory tower, but someone with intellectual heft, a common touch, common sense and a practical bent of how the world works. Sounds pretty good to me, how about you?

Originally posted at InjuryBoard by Greg Cusimano

Chantix Linked to Suicide Risk?

Michael Roberts — Wed, 01 Oct 2008 09:34:49 GMT

In early 2008, the FDA issued a Public Health Advisory on the smoking cessation drug Chantix. Chantix, also known as varenicline, is manufactured by Pfizer. In late 2007, the FDA issued an Early Communication to the public and healthcare providers notifying that postmarketing adverse event reports were being evaluated. These reports related to changes in patients' behavior, agitation, depressed mood, suicidal ideation, and actual suicidal behavior.

In the 2008 Advisory, new safety warnings were emphasized, emphasizing concern about worsening of current psychiatric illnesses or a depressed mood, and unusual behaviors.

Chantix was only approved by the FDA in May 2006 as a smoking cessation drug. It acts at sites in the brain affected by nicotine.

Originally posted at InjuryBoard by Michael Roberts

Dangerous Products: Airline Safety; Medical Safety; Food Safety; Auto Safety; Environmental Safety

Greg Cusimano — Tue, 24 Jun 2008 17:58:45 GMT

Can Our Government Protect Us From Dangerous Products and Activities? Can We Rely on Our Government? Should Our Citizens Have Input as Jurors?

Introduction

No one wants to be saddled with gobs of red tape and government regulations. How can our Government protect us from unscrupulous corporations and ourselves? We know that most businesses care about their products and their customers, but what about those that do not? Large sums of money, subject to gain or loss, can test the moral fiber of big business. This is especially true when the very nature of the corporate structure prevents personal responsibility. The buck does not stop with an individual and, therefore, often does not stop.

Do we need private citizens to participate in the process other than at the point of sale? Do we need juries both in tort and contract cases to help regulate misconduct? Has the structure of our appellant courts, state and federal, rescinded the input of our citizens?

Well let us look at the track record of the executive, legislative, and even the judicial branch. Two of our three branches of government are composed of individuals who run for office--soliciting funds, support, and votes from the very entities they are to regulate. It is legal to lobby and attempt to persuade individuals in those branches to support certain positions. Although we cannot directly lobby individuals once they are on the jury, they already have been lobbied through the national tort reform campaign. Judges who are elected or appointed often find themselves in office as a result of their beliefs or political preference, rather than their scholarship and competence.

Airline Safety

In April 2008, Federal Aviation Administration (FAA) supervisors accused the FAA of ignoring safety lapses. The inspectors reported to Congress that when they complained about being dissuaded from pursuing complaints against a major Airlines’ failure to perform required safety checks, they were harassed on their jobs. According to the inspectors, the FAA supervisors knew of the safety problems. The inspectors further reported that the agency even threatened to discharge them. After this was revealed, two other major airlines grounded many of their planes for missed inspections.[i] This is not the first time we have seen the FAA bend to airline pressure.

Medical Safety

Earlier this year, the Food and Drug Administration (FDA) proposed a rule, which violated the intent of the FDA Amendments Act of 2007. The effort was to relax requirements for labeling and allow the claim of immunity for failure to warn of drug hazards. The FDA Amendments Act said the drug manufacturer was required to promptly update its drug label when aware of new safety information. The law was clear, but this proposed rule is another back door effort at tort reform that would not pass if offered. Once the FDA approves a drug for a specific purpose, the proposed rule would allow the drug to be used for conditions that the FDA did not approve. Although such can be good medicine, the problem is that what is known about a drug in one situation may not apply to another.

Preemption

Medical Devices

What is Federal Preemption? It means to take the place of state law. Some say it is a strategy to destroy the civil justice system. Others say it eliminates accountability and responsibility. If the state law allows the injured person to hold the wrong doer responsible and the federal law makes no provision to hold the wrongdoer responsible, how can the federal law effectively take the place of the state law?

The general public has no idea what preemption is. If they were told it means “that Americans are denied the right to hold companies accountable under the laws of their own states for the harm those corporations cause,”[ii] most Americans would not believe it. Especially since we have a conservative U.S. Supreme Court that supposedly believes in States Rights! Well in February 2008, the U.S. Supreme Court issued a landmark opinion; Riegel V. Medtronic, Inc.[iii] Charles Riegel and his wife, petitioner Donna Riegel, brought suit against respondent Medtronic after a Medtronic catheter ruptured in Charles Riegel’s coronary artery during heart surgery. Charlie and his wife sued the manufacturer, Medtronic, Inc. They alleged Medtronic knew the balloons were defective. Medtronic argued the Food, Drug, and Cosmetic Act protected them and the Riegels could not sue since the FDA had approved their marketing the device. Medtronic argued they should be immune from state-law claims. Charles later died and his estate continued to pursue the claim.

On February 20, 2008, in an 8 to 1 decision, written by the conservative Justice Antonin Scalia, the court protected Medtronic and the makers of medical devices from patients and consumers who allege they were injured by the device. Justice Ginsburg was the lone dissenter. The court has other cases pending involving drugs, cigarette makers, and the like. The decision was a change of direction for the court and the consumer, but seemed in line with other recent rulings favoring business interests and turning a jaundiced eye toward civil lawsuits. Scalia wrote “Allowing juries to award damages when something goes wrong, would be unfair. A jury "sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court."

Chief Justice Jim Hannah of Arkansas in a recent opinion had this to say about Riegel, “I am also compelled to express my dismay at the summary abandonment of venerable principles of state common law that have been developed over many generations. By a conclusory and incomplete analysis, our law is dismissed. In the place of well-reasoned judicial decisions reaching back to the England of Blackstone, injured plaintiffs are told that instead of looking to their common law for redress they must look to a regulatory agency that has no power to grant them any redress.“[iv]

Over adecade ago, the U.S. Supreme Court was not so anxious to promote preemption. In the ‘Lohr‘ case, many of the same Justices who disfavored preemption, sided with the majority in the Riegel decision. My how attitudes change, even on the U.S. Supreme Court.

What mechanism is there at the federal level to compensate for such injuries? Good question, I do not believe this decision reflects the intent of Congress. I hope they pass legislation to right this wrong soon.

Drugs

Scalia did not include drugs in his opinion, leaving that question for another day. Recently the Journal of the American Medical Association (JAMA) suggested that the maker of Vioxx, Merck & Co., advanced and promoted Vioxx in numerous academic articles that had actually been ghostwritten by Merck.[v] Through lawsuits, this information was revealed in discovery. Even so, the FDA is considering allowing manufacturers to distribute medical journal articles considering off-label uses. There is concern that some manufactures will only circulate positive articles and not studies that show risks and would not advance sales. For example, a drug manufacturer sought to market Paxil off label to children. One study illustrated positive results in depressed children. That study was published, but there was another study revealing Paxil was not effective for children. That study was not submitted for publication. Doctors who prescribe drugs must receive balanced information on the risks and benefits of the drug. Without safeguards, doctors may only receive information that talks about the drug’s benefits and that would be dangerous for all of us.

Food Safety

There have been many recalls and food-borne outbreaks in recent years. Consumers have lost faith in the Federal Drug Administration when it comes to food safety. The agency has faced safety problems with spinach, peanut butter, the blood-thinner drug Heparin, and contaminated pet foods made in China. Use of funds in other areas has starved the FDA financially and subjected the agency to much criticism for being beholden to big business.

Democrats have introduced legislation in the House of Representatives to bolster food and drug protection. The bill will focus on what has been called a “public health crisis”. The agency is responsible for 80% of the U.S. food supply. Country of origin labeling for produce and processed foods would be required. The food industry, the FDA, and Republican lawmakers are against parts of the bill, which include user fees.

Environmental Safety

Has the Environmental Protection Agency (EPA) been influenced by the American Chemistry Council? An EPA panel chair was forced to step down after the Council complained. Congressional committee hearings revealed that chemical makers fundmany of the scientists on EPA panels.

Lawmakers want to know why the EPA let scientists remain on expert panels but removed Deborah C. Rice, a public health scientist, after the American Chemistry Council requested she be removed. Rep. John D. Dingell said “If industry has undue influence over this science, then the public’s health is endangered.”

Rice, a toxicologist for the state of Maine, testified before the Maine legislature about health risks associated with deca, which is used as a fire retardant. Maine and the European Union banned the compound. Rice’s panel completed its work and a Vice President of the Chemistry Council complained. The EPA removed her from the panel and expunged her comments from the official record and even took them off the EPA web site.[vi] It was reported that at least nine scientists who received funding from chemical makers were allowed to remain on review panels.

By the way, the New Jersey Department of Environmental Protection will not be allowed to collect from a lawsuit approximately $800 million from W.R. Grace & Co. The company claimed there were no harmful levels of asbestos in a plant they closed in New Jersey. The EPA determined that was not true. However the Company asked for protection by the Bankruptcy Act passed by Congress. The judge granted protection.[vii]

Auto Safety

The National Highway Traffic Safety Administration (NHTSA) in 2007 issued safety rules regarding electronic stability control, door locks, tire pressure monitoring systems, occupant crash protection, head restraints, side impact protection, and others, all of which suddenly sought to preempt state common law product liability claims involving these important safety mechanisms. NHTSA continued this trend in 2008 attempting to preempt state law school bus crash protection, child restraint systems, lamps, and reflective devices.

Now NHTSA attempts to include preemption in Roof Crush Rules. “Currently, 10,000 people die and 24,000 people are injured in vehicle rollover accidents. Instead of acting to significantly reduce injuries, NHTSA proposed a weak roof crush standard that according to their own estimates may save an additional 13 to 44 people. The proposed rule went on to explicitly state that injured people should not be able to hold manufacturers accountable for defective products that otherwise meet this low standard.”[viii]

These rules try to nullify state and federal courts safety efforts and reveal how afederal agency can work on behalf of powerful corporate industries, rather than public safety concerns.

Other Product Safety

We have experienced pet food contaminated with melamine, toothpaste laced with diethylene glycol, toys coated with lead paint and tires that come apart, to mention just a few. U.S. agencies responsible for safety including FDA and Consumer Product Safety Commission are short staffed and under funded.

Conclusion

How can we protect ourselves? Many say government and industry have failed abysmally to protect consumer health. The judicial system has helped produce cases that made a difference. Courts have also provided information about problems that would not have been disclosed any other way. However many would say the judicial system has been influenced by an ideological business sea change. It seems weare experiencing pro-business justice. “…many Democrats and Republicans,… have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business.”[ix]

Robin Conrad, heads the litigation efforts for the U.S. Chamber of Commerce. She is pleased that of 30 business cases in the U.S. Supreme Court last term, 22 were decided unanimously or with few dissenting votes. She expressed that liberal justices wrote most of the important decisions. She indicated that Justice Ginsburg, Breyer, and Souter went out of their way to criticize the use of lawsuits to challenge corporate wrongdoing.[x]

So it seems that it is the people, citizens who sit on juries that have slipped from the process. The three branches of government have certainly had special influence pressures from all sides. People who sit on juries have not escaped the anti-plaintiff, tort reform onslaught. We live and practice in perilous times. We must be dedicated to do all in our power to insure that those damaged by others, through no fault of their own, have a way to achieve justice.

[i] Wald, Matthew L., NY Times, 4/3/08 p

[ii] Beasley, Jere. Jere Beasley Report; “The Preemption Battle Won’t Go Away“

[iii] 128 S.Ct. 999 (2008)

[iv] Despain vs. Soundtec, inc. SC of Arkansas (no. 07-714, 4/10/08)

[v] Ross, Joseph J., et al, Guest Authorship and Ghostwriting in Publications Related to Rofecoxib, 299 J.A.M.A. 1800 (April 16, 2008); Bruce M. Psaty and Richard A. Kronmall, Reporting Mortality Findings in Trials of Rofecoxib for Alzheimer Disease or Cognitive Impairment, 299 J.A.M.A. 1812 (April 16, 2008)

[vi] Layton, Lyndsey, The Washington Post, 4/4/08

[vii] Associated Press, PhillyBurbs.com, 4/1/08

[viii] AAJ Press Release, March 27, 2008; AAJ Demands NHTSA Removes Preemption From Roof Crush Rules; AAJ Press Room

[ix]Rosen, Jeffrey “Supreme Court Inc.; How the nation’s highest court has come to side with business“. New York Times Magazine Mar.16, 2008: 40.

[x] Rosen, Jeffrey “Supreme Court Inc.; How the nation’s highest court has come to side with business“. New York Times Magazine Mar.16, 2008: 40.

Originally posted at InjuryBoard by Greg Cusimano

How Can I Help My Friends or Family Find a Good Lawyer?

Greg Cusimano — Fri, 03 Jul 2009 10:19:29 GMT

When you, or someone you are close to, has been hurt or injured, it can be a very rough and troubling time for everyone involved. Legal representation, or finding a lawyer, is the last thing on anyone’s mind; however it should be one of the first.

For some the thought of contacting a lawyer can send shivers down spines, and bring thoughts of black briefcases, black suits, and even blacker hearts, but you can be assured that this stereotype of the legal profession is just that. A stereotype. This image of the rule bending, untrustworthy lawyer that sees you as nothing but a walking dollar bill, just simply isn’t the truth for most lawyers. Maybe a few, but not many. The few may be responsible for the bad image promoted by big money wrongdoers that don‘t want you to trust ANY lawyers. Because of the few, it is important you do your home work.

The truth is that most lawyers are willing to help you in your time of need and see to it that your rights as guaranteed by this nation are protected. Lawyers are specially trained to have the knowledge and details of the law that most lay-persons are not expected or required to have, and this knowledge can help you, the client, in gaining appropriate justice in many circumstances.

Some might be intimidated or impressed by the multitude of park benches, billboards, and TV ads, that depict a lawyer yelling in a court room, throwing a legal book on a desk, or even boxing a heavy bag. However, don’t be quick to dial the easiest number that you come across or the catchiest jingle. Lawyers, although usually competent in many areas of law, should have a specialty that will suit your needs specifically. It’s not always the best idea to go after the biggest firm, or the most impressive commercial.

Most lawyers are referred by word of mouth. This means that the people that are referring you to them have had direct contact and experiences with them. This is a great way to get a feel of what the lawyer is like, and how he (or she) conducts cases. Most legal problems that the normal person will run across are auto accidents, workers compensation, criminal charges, or other tort actions (such as slip and falls). For these situations, word of mouth in the community will be a good starting point to find your way around. However, what happens if you need to know how to set up a business in China under the Delaware Corporation Code? You might need a specialist that your neighbor can’t’ suggest. For this there are a multitude of lawyer referral services available online, including this blog you are viewing right now. Get started by browsing by location, or searching for a topic or practice area of interest or importance to you.

When you have finally arrived at whom you would think can give you appropriate representation, you should, or the lawyer will organize an introductory meeting for the two of you. Often there will be no charge to you, or a minimal fee. You may also be able to discuss your problem over the phone for no charge. This is all dependent on the lawyer and the firm you are dealing with. Remember that you are assured confidentiality in all of these discussions. Make sure that you are confident in your lawyer, and feel free to “shop around” a bit. Taking the time to go to two or three lawyers so you can make an informed decision will help you and your representation in the long run. Don’t be tricked by flashy ads, catch phrases, or large mahogany desks and rows of book shelves.

As always, take the time, make an informed decision, and be confident in your lawyer.

Originally posted at InjuryBoard by Greg Cusimano

Motorcycle Injuries and Death

Greg Cusimano — Tue, 09 Jun 2009 20:52:07 GMT

Lewis Eugene Barnard, "Barney" (48) and Mayra Salazar Price (37) were killed in a motorcycle wreck in Gadsden, Alabama. They were wearing helmets. It has been reported that the driver of a car turned in front of them on Ewing Avenue in North Gadsden.

Just this past Monday, June 8, 2009 an 18 year old from Fort Payne was killed on Interstate-59 in Dekalb County. It was reported by Police Commissioner Ron Ogletree that the motorcycle was traveling at a speed over 100 mph when it crashed into the back of a transfer truck. It is alleged that two motorcycles were racing. That was not the case in the deaths of Mr. Lewis and Ms. Price.

So often riders of motorcycles are seriously injured or killed in motorcycle accidents and just as often it is not their fault. Although helmets significantly reduce risk, the helmets must be fitted and constructed properly to provide adequate protection. Litigation demanding safe helmets and mandatory helmet laws have saved lives by increasing the protection of helmets. June is Motorcycle Safety Awareness Month in many parts of the country. Participating in education and mutual respect on our highways and byways encourages others to do the same. Have a safe summer.

Originally posted at InjuryBoard by Greg Cusimano

The Empathy Issue

Greg Cusimano — Sun, 31 May 2009 11:38:34 GMT

It is not often that I agree with columnist David Brooks. However on May 29th 2009 he published an article in the New York Times called “The Empathy Issue” that deserves note. Actually he was referring to the U.S. Supreme Court nominee, Judge Sonia Sotomayor. The article attracted my attention, because while Brooks was referring to how emotion affects decision-making as it relates to a judge, it expresses admirably my sentiment concerning those that serve on our juries.

Brooks relates:

“The decision-making process gets even murkier once the judge has absorbed the disparate facts of a case. When noodling over some issue — whether it’s a legal case, an essay, a math problem or a marketing strategy — people go foraging about for a unifying solution. This is not a hyper-rational, orderly process of the sort a computer might undertake. It’s a meandering, largely unconscious process of trial and error.”

I often say in my writings or lectures, that we are not rational beings we are rationalizing beings. Substituting the word “jury” for “judge” makes the statement non the less true.

Originally posted at InjuryBoard by Greg Cusimano

Dangers of Signing An Arbitration Agreement

Greg Cusimano — Sun, 20 Sep 2009 22:03:45 GMT

Consumers beware! Many consumer and employment contracts now include an “Arbitration Clause”. You can find the clause lurking in employment contracts, lease agreements, health care admissions documents, insurance enrollment forms and other consumer contracts. There are many dangers in signing an arbitration agreement.

You Lose Your Constitutional Right to a Jury Trial:

Signing a contract that contains an arbitration clause waives your constitutional right to a jury trial and in effect keeps you from having your dispute resolved by a court of law. Rather, you are required to submit your dispute or claim to a neutral third party, whom is neither an elected or appointed judge.

An Arbitrator’s Decision is Final:

After each party presents their case the arbitrator renders a decision that is final and binding on both parties. This decision cannot be appealed and unlike mediation. There are several other dangers in signing an arbitration agreement. Many arbitration clauses and systems do not allow you to recover your attorneys’ fees. This makes it practically impossible for consumers or employees to obtain legal representation. Additionally, the avenues for appealing an arbitrator’s decision are practically closed and regardless of whether the decision is erroneous, it cannot be easily overturned.

Arbitrators May be Biased Against Consumers/Employees:

Sometimes the arbitrator specified in the arbitration agreement may be biased because they depend upon the corporation for repeat business. Therefore, they have a personal motive and business interest in rendering decisions that favor the corporation. As a result, they are more inclined to rule against consumers and employees on the disputes that come before them.

Arbitration can Result in Significant Time Delays and be very expensive:

While arbitration is meant to serve as a more efficient method for resolving disputes, it can actually lead to significant time delays. Sometimes there are multiple arbitrators on a panel, which means that each arbitrator must juggle their schedule in order to hear your dispute. While your dispute may ultimately be heard, you might end up waiting awhile for your hearing to align with the schedules of multiple individuals. Most often the filing fees for Arbitration are 2 or 3 times more expensive that filing a case in court.

The Law may Not Make a Difference:

An arbitrator is not necessarily required to follow the laws that apply to your dispute. This can result in a seemingly unfair decision. Even though arbitrators are not able to completely disregard the law in rendering their decisions, it’s possible that they may render an unfair decision that does not go completely against the law.

Awards are Difficult to Enforce:

Since arbitration awards do not have the power of a court judgment they are not directly enforceable. Rather, if you seek to enforce an arbitration award you must resort to judicial remedies, such as bringing an action to “confirm” the award. While you may be able to utilize judicial remedies to obtain an award, these claims can be fiercely fought and often result in the consumer acquiring a significant amount of legal fees, fees which far exceed the economic incentive to bring their dispute in the first place.

Arbitration Clauses are Sneaky:

Consumers must be on the lookout for arbitration clauses. Arbitration clauses are inconspicuous because they are usually set forth in the fine print of a contract or are contained in an ancillary agreement. Consumers and employees are often unaware that they have agreed to mandatory, binding arbitration by simply purchasing a product or taking a job.

If you can, refuse to sign a contract containing an arbitration clause, cross through the language of the clause or attempt to negotiate its terms. Where it is impossible to negotiate, with large companies for example, you should shop around before you sign.

Originally posted at InjuryBoard by Greg Cusimano

Good News from Minnesota in the Arbitration Battle

Jason Knowles — Fri, 11 Sep 2009 13:06:40 GMT

On July 14, 2009, Minnesota Attorney General Lori Swanson filed suit against the National Arbitration Forum (NAF) of Minnesota, the nation’s largest arbitration company for consumer credit disputes, accusing NAF of consumer fraud, false advertising, and deceptive trade practices by “misrepresenting its independence” and hiding its “extensive ties” to the collection industry. When filing the suit, Swanson said in a press release: “This is a classic case of the little guy being stepped on by fine-print contracts.”

For several years now, credit card companies, banks, retail lenders, automobile sellers, and cell phone service providers have been inserting mandatory pre-dispute arbitration clauses in the fine print of consumer agreements. In many cases, the consumer does not know or understand that he is waiving an important right.

Swanson’s lawsuit charged that NAF works behind the scenes, “alongside creditors and against the interests of ordinary consumers”, to convince credit card companies and other creditors to insert arbitration provisions in their customer agreements and then appointing itself to resolve the disputes. The lawsuit alleged the NAF pays commissions to executives to convince creditors to insert mandatory arbitration clauses in customer agreements, thus generating arbitration filings and revenue for itself.

Fortunately, within days after being sued, NAF agreed to stop handling cases involving banks and credit card issuers over unpaid bills. Under the agreement with the Attorney General, NAF will no longer be allowed to settle disputes between consumers and credit card companies.

This is a significant victory for American consumers.

(source: Saint Paul Legal Ledger)

Originally posted at InjuryBoard by Jason Knowles

Most Bankruptcies Caused By Medical Bills

Jason Knowles — Thu, 30 Jul 2009 13:04:34 GMT

The New York Times recently reported on an interesting bankruptcy study published online on June 4, 2009, in The American Journal of Medicine. According to the study, nearly two out of three bankruptcies arise as the result of medical bills. In 2007, medical problems contributed to 62.1% of all bankruptcies. And between 2001 and 2007, the percentage of all bankruptcies attributable to medical problems rose by 50%.

The data on medical bankruptcy, compiled by researches at Harvard and Ohio University, is based on a survey of 2,314 randomly selected bankruptcy filers during early 2007. Among families who were bankrupted by medical problems, those with private insurance reported average medical bills of $17,749, compared to those who were uninsured, who faced an average of $26,971 in medical costs. Those who had health insurance, but lost it in the course of their illness, reported average medical bills of $22,568.

The Times reported that hospital costs accounted for about half the expenses (48%), followed by prescription drugs (18.6%), doctor’s bills (15.1%) and insurance premiums (4.1%).

Given the current state of the economy, the full scope of the problem is probably even worse today than in 2007. Hopefully, Congress will deal reasonably and wisely with the healthcare issue and reform a broken system.

Originally posted at InjuryBoard by Jason Knowles

Under what circumstances may someone recover money damages for emotional distress?

Michael Roberts — Wed, 24 Jun 2009 15:09:56 GMT

The law varies depending on the jurisdiction, but many states permit such recovery. In Alabama, for example, damages for mental distress that accompanies a physical injury may be awarded by a jury where a person was wrongfully hurt. Thus, the worry and depression related to a disc herniation and its consequences can be the subject of a verdict award. Where there is no physical injury, and the other party is guilty of negligence, Alabama follows a "zone of danger" rule adopted by the Alabama Supreme Court in 1998. Under this rule, a company or person who negligently puts a person in immediate risk of physical danger (such as causing a fire from which a person escapes without an actual burn) is responsible for mental distress or mental anguish.

"Intentional torts" (where a party's conduct is worse than mere negligence, such as intentional assault, defamation, fraud or misrepresentation) can also warrant mental distress damage awards. In Alabama, breaches of certain types of contracts, such as some related to homes, can be the foundation of emotional distress damages. (For further discussion of cases, see Alabama Tort Law, 4th edition, Lexis Law Publishing.)

Originally posted at InjuryBoard by Michael Roberts