My goodness, to read the coverage in today’s Oregonian, one would think that the towns, cities and universities in the state face near-certain bankruptcy because of yesterday’s Oregon Supreme Court opinion. (See yesterday’s entry for summary and citation on Clarke v. OHSU.)

In today’s Oregonian, Ashbel Green relates that the sky is falling. Here is the link:  www.oregonlive.com/news/oregonian/index.ssf?/base/news/1198900517209320.xml&coll=7

The problem with the report is that it misses a key legal concept. The Court ruled that the cap was unconstitutional as applied to Jordaan Clarke’s case. That “as applied” detail is very important. The cap remains the law, except in very rare cases, like Jordaan Clarke’s, when the harms and losses caused by profound injuries dwarf the maximum amount recoverable.

Jordaan Clarke suffered profound brain damage caused by the negligence of OHSU medical providers. The profound injuries confined him to a wheel chair, left him in need of round-the-clock care, and triggered future medical expenses in excess of $11 million. These facts are admitted by everyone.

In the case decided by the Supreme Court, Jordaan Clarke could recover no more than $200,000, even though his harms and losses exceeded $10 million. Jordaan’s case is exceptional by any measure.

The problem with the cap is that it applies one size-fits-all justice to all cases. In the case of Jordaan Clarke, the limits were so severe that they violated the Oregon constitution’s guarantee on the right to a remedy. If the Court had gone the other way, it would have said to OHSU, “Don’t worry; no need to be careful. We won’t hold you for whatever harms and losses you cause to your patients.” Anyone who has ever raised a child knows that this is a horrible message to send. Fortunately, the Oregon Supreme Court got it right.

This isn’t the stuff of falling skies, and the Oregonian is doing a disservice to all by the alarmist report.

David F. Sugerman

In a remarkable decision today, the Oregon Supreme Court concluded that the Oregon Tort Claims Act is unconstitutional, as applied in a case involving profound injury. The case, Clarke v. Oregon Health Sciences Univ., involved a profoundly injured child who suffered brain damage as a result of negligent care at Oregon Health Sciences.

Despite the fact that the baby’s lifetime medical needs would cost over $11 million, the Oregon Tort Claims Act limited the baby’s recovery to $200,000. The Oregon Supreme Court concluded that the limits deprived the child of a remedy guaranteed by the Oregon constitution.

Here is the link to today’s opinion: www.publications.ojd.state.or.us/S053868.htm
It’s an interesting decision. The Oregon Supreme Court strives to decide cases unanimously. And while all of the participating justices agreed to the outcome, two joined in a concurring opinion that carefully suggested how the legislature might consider fixing the constitutional problems.

The case will likely mean different things to different interests. For severely injured consumers, it means that injuries caused by the government are not artificially capped by limits that are low and outdated.

But the opinion also leaves open many questions. For example, all the justices agreed that the $200,000 maximum was constitutionally inadequate in Jordaan Clarke’s case. But what happens when the injuries are profound but don’t total $11 million in economic damages? For the present, it looks like the Court will be addressing that question on a case-by-case basis. I suppose this isn’t the end of the world, as legal systems, lawyers and judges exist specifically to frame and decide these evolving questions.

To be sure, both opinions reveal keen wisdom about the role of the judiciary as a co-equal branch of our system. The court narrowly decided the case and invited the legislature to fix the problem with specific observations that provide legislators with some guidance on how to go forward. I don’t particularly agree with how the court got there or a number of the specifics in both the majority and concurring opinions. Even so, I have to say that the court handled a tough case with grace.

Where we go from here should prove interesting for those of us who represent consumers.

David F. Sugerman

There isn’t much more horrible than watching your child die. Reported in today’s news is the case of 17-year old Nataline Sarkisyan. She died after her health insurer, CIGNA, refused to approve a liver transplant. Her doctors said the transplant was necessary to treat her leukemia. CIGNA refused and then later relented after protesters showed up outside CIGNA’s offices.

Here is the link. www.msnbc.msn.com/id/22357873/

We like to think that playing by the rules and providing for our families will protect us and our loved ones. Here is a working family that provided health insurance for itself. Given the costs of coverage today, that is no small feat. And yet, hard work and sacrifice and resources weren’t enough because greed got in the way.

CIGNA refused to pay for the transplant because “there was a lack of evidence” that it would be effective. But her doctors concluded it was necessary.

As a kid, I grew up reading Mad Magazine, and one of my favorite features was something called, “What They Say/What They Really Mean,” or something like that. This one is ripe for the old Mad Mag treatment. What they said was that, “There was a lack of evidence that the treatment would be effective,” and what CIGNA really meant was, “Hey we’re the insurance company, and we know better than the doctors who have examined and treated Natalie. It’s our money, and we don’t want to spend it.”

Giving it the Mad Mag treatment is probably inappropriate for the simple reason that a family lost their sister and daughter and all the beauty and life and energy that every kid brings into the world. Through the years, I have represented parents who have lost children, and all have told me the same thing.

There is nothing worse than burying your child.

David F. Sugerman

Someone at the EPA needs to be reminded that “P” stands for “Protection.” Today’s news: The EPA rejected Oregon’s new rules requiring auto dealers to meet tighter emission standards for cars sold in Oregon.

The feds’ beef is that Oregon, California and other states are setting standards too tough. Of course, if EPA did it’s job, then the states wouldn’t need to set tougher standards. The EPA action was accompanied by the declaration that it was “moving forward” to create a uniform national standard. Moving forward? Can’t help but wonder when they’ll get there.

California’s Republican Gov. Schwarznegger and Oregon’s Democratic Gov. Kulongoski reportedly plan to challenge EPA action.

David F. Sugerman

I’m guessing Allstate policyholders’ premiums are going to go up.

Here’s a summary of an interesting news report from yesterday’s Kansas City Star. An Allstate insured is suing Allstate in Missouri because the company failed to pay on his policy after he struck and injured another motorist. The insured, Mr. Aldridge, requested documents relating to a consultant’s report in the case, and the trial court ordered Allstate to produce them.

Allstate appealed all the way to the Missouri Supreme Court, and the Supreme Court ruled that Allstate must produce the consultant’s papers. Allstate is still refusing, so the trial court levied fines. Reportedly, the fines are $25,000 per day for the refusal.

Here is the link: www.kansascity.com/news/local/v-print/story/409641.html

Allstate seems to have concluded that it can ignore the rulings and orders of the courts. It doesn’t like the result, so it will just refuse to comply. The fines don’t seem to be a problem. After all, they can just pass them through to policyholders.

When an injured person gets a large verdict, the media machine for the tort reform industry throws out terms. You’ve heard them: lawsuit lottery, frivolous lawsuit, and judicial hellhole. So what do they call it when Allstate simply refuses to comply with an order of the court? I don’t hear the American Tort Reform Association putting out any press releases on this issue. Nor do I hear the politicians who hate the jury system system condemning Allstate. All I hear is a variation on the golden rule. As in, “We’ve got the gold, so we make the rules.”

I’ll be watching carefully for that next series of Allstate’s commercials to hear them explain how they take care of policyholders. Who knows? Maybe they’ll explain this one in a new TV ad with that guy who tells us about Allstate’s stand.

I can hardly wait.

David F. Sugerman

Interesting report on MSNBC today about doctors in rehab in California who are allowed to obtain confidential drug and alcohol treatment while continuing to provide patient care. Here’s the link: www.msnbc.msn.com/id/22314486/

Oregon has a similar program of confidential drug and alcohol treatment for physicians. Here is the url for the Board of Medical Examiners summary of the program: oregon.gov/BME/healthprog.shtml. The statutes codifying the Oregon program are ORS 677.615-677.677.

The MSNBC article notes that many drug and alcohol treatment professionals and the American Medical Association support these types of programs. According to the AMA, allowing an impaired physician to continue treating patients encourages impaired doctors to seek treatment. Of course, the article also notes that California is ending its program because a review revealed that the confidential program failed to protect patients. And it also failed to encourage doctors to receive treatment.

The California experience provides hard data that undermines the AMA’s position. My perspective is surely colored by representing patients, but even so, there is something horrifying about a patient not knowing about a doctor’s impairment.

If you have any doubt about this in the abstract, consider a fairly simple hypothetical question. Would you want a surgeon who is addicted to drugs performing surgery on your child? If the answer is, “Of course not,” then it’s easy to see the problem with letting impaired doctors continue treating patients.

The AMA should be advocating for quality of care, and the California experience makes clear that the current system delivers lower quality care. An impaired doctor can be dangerous to patients. If the impairment is kept confidential, the very least that should happen is that the doctor should take a leave so that patients have confidence in their physician. Alternatively–and it’s a radical alternative–remove the confidentiality so that patients can choose. I imagine the radical alternative would horrify the AMA and the Oregon Board of Medical Examiners. I could see that reaction. But if you’re not going to give patients the information they need to protect themselves, then you surely should take the impaired physician out of circulation.

David F. Sugerman

In Seattle last week, Judge Bruce Hilyer approved a class action settlement for auto glass workers who claimed to suffer vibration injuries from use of the Chicago Pneumatic CP 838. The case is Boos v. Chicago Pneumatic Tool Co., State of Washington, King County Superior Court Case No. 02-2-16730-6SEA.

Disclosure: The author of this blog served as lead counsel for the class, and Paul & Sugerman has been involved in auto glass workers’ product liability claims against Chicago Pneumatic since 1995.

In Washington, approximately 120 workers made claims and will receive compensation in the Boos settlement. In earlier cases in Oregon, approximately 75 workers made claims and received compensation for vibration injuries. It’s been a long fight, and some good has come out of it.

Success in the case would have been impossible without a great team, and I close by acknowledging and thanking the rest of the team who made the case a success: Eric Boos and Jim Rasmussen, the two class representatives, and my colleagues in the trenches, Steve Sitcov, Candice Rutter, Rick Klingbeil and Bernie Jolles.

David F. Sugerman

Willamette Week’s Dave Mazza reports in this week’s issue about a rash of student complaints at Portland’s Western Culinary Institute. According to the article, some 800 students pay $39,000 for culinary training. According to the article, students claim that the trade school promises a rich and rewarding career in the restaurant business. The story details problems with program, including over crowded classes, limited facilities and over-promised rosy futures.

Those who know the food and restaurant trade will tell you that the average kitchen job rarely pays more than modest wages. Celebrity TV chefs are the exception. According to the article, many of these young men and women are incurring substantial debt and leave the school with limited options beyond low-paying work.

Here’s the link : wweek.com/editorial/3405/10113/

While it’s hard to draw conclusions based on a single news story may, if the report is accurate, a number of these students may have various consumer claims. Thankfully, Oregon law provides a number of different avenues for those students who might choose to seek relief.

David F. Sugerman

A recent news report reveals that at one prominent Rhode Island hospital, three different brain surgeries performed by three different surgeons involved surgery on the wrong side of the head. Same hospital. All in one year. Here’s the link: www.msnbc.msn.com/id/22263412/

The report details how surgeons and nurses failed to comply with safety procedures designed to ensure that surgery is done at the correct site. The regulating agency, Joint Commission on Accreditation of Hospitals gets 8 reports a month of wrong-site surgery, but the Commission notes that hospitals are not required to report these incidents. As a consequence, the rate of error from this type of medical mistake is believed to be 10 times higher than the reported rate.

If you think about it, surgery is a fairly intense way to treat a big medical problem. To cure, the surgeon is literally cutting into the human body and removing and restructuring the body. That’s a bit obvious, of course, but it’s an important concept when thinking about what it means to do surgery at the wrong site. It’s another form of unnecessary surgery, and that’s no small thing for the patient.

When we undergo surgery, patients literally surrender all control to the doctor and medical staff. We’re put under and have no way to gently say, “Excuse me, doctor, but it’s the other hip.”

The best outcome would be that the surgical team review and re-review the patient’s chart to make sure that surgery is being performed where it is needed. Failing that, the patient’s only recourse is the civil justice system. This is the only place where ordinary people have the ability to call wrongdoers to account. This is true even when the wrongdoer is rich and powerful.

So next time you hear a politician ranting about the “malpractice crisis” or “frivolous” lawsuits, it might be wise to remember that serious mistakes happen, and the system needs to remain open to address those errors.

David F. Sugerman

The Washington Post reports today that Maryland is demanding repayment of $84 million from a physician insurer because–here’s some news–the medical malpractice “crisis” wasn’t actually a crisis.

Back in 2004, then Gov. Ehrlic convened a special session to deal with what he termed the malpractice crisis. Maryland began to provide subsidies.

The insurer recently announced that it had a surplus and would pay some of the money back to the State and the rest to doctors in the form of a rebate for next year’s coverage. State regulators weren’t thrilled and instead demanded repayment of the $84 million which had been raised by a surcharge on HMO subscribers.

It’s nice to see a state government stand firm and demand return of public money. It might be interesting to take a look back at who was fanning the flames on the non-crisis.

David F. Sugerman