Throughout modern history, women have suffered disproportionately from the effects of dangerous and defective drugs and medical devices. Women take more medications than men, respond differently to them, and are more likely to suffer adverse drug events. Because of the recent Riegel v. Medtronic (2008) and PLIVA, Inc. v. Mensing (2011) rulings by the U.S. Supreme Court, women injured or killed by dangerous drugs and medical devices may not be able to hold these manufacturers accountable.
Women were historically excluded from Phase 1 clinical trials, rendering many gender-specific risks unknown. Though this policy was changed in 1993, women remain consistently underrepresented in drug and medical device evaluations. Reckless corporations have long taken advantage of this situation. Drugs and medical devices marketed specifi cally for women have long skirted the edge of responsible medicine.
The Reserving Practices and Record Profits of Large Medical Malpractice Insurers
During the early part of the last decade, many academics, insurance industry executives and policymakers were concerned with an apparent medical malpractice insurance crisis. The “crisis” appeared in the form of dramatic increases in physicians’ malpractice insurance premiums. News stories highlighted price hikes as high as 600 percent in one year.
In hindsight, it has become clear that despite the predominant storyline at the time, the crisis was not caused by an up swell of litigation. Claims severity – the average amount paid in medical malpractice claims – did increase during this time, as to be expected when such claims largely constitute medical costs that are subject to high levels of inflation. However, claims severity increased gradually, and not in a manner that would explain a sudden spike in claims costs. Moreover, claims frequency – the number of medical malpractice claims insurers were having to pay – actually decreased.
The Institute for Legal Reform (ILR), an arm of the U.S. Chamber of Commerce, has the sole mission of restricting the ability of individuals harmed by negligent corporations to access the civil justice system. According to the multinational corporations that finance ILR, American businesses are hindered by too many lawsuits. Yet these same corporations show no hesitation in liberally using the courthouse themselves.
Since 1980, the Medicare Secondary Payer (MSP) system has protected Medicare funds by ensuring that Medicare is reimbursed for costs that other entities have primary responsibility for paying. That system has become a poster child for inefficient bureaucracy. It is plagued with difficulties that range from posing inconveniences to causing genuine economic harm. Insurance companies, small businesses, municipalities and even other federal agencies have to spend millions of dollars to navigate MSP’s web of red tape. The system is so dysfunctional that even Medicare is harmed by its own bureaucracy, unable to recoup taxpayer dollars from people who are trying to give money back to the government.
Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. Any discussion of medical negligence that does not involve preventable medical errors ignores this fundamental problem. And while some would prefer to focus on doctors’ insurance premiums, health care costs, or alternative compensation systems – anything other than the negligence itself – reducing medical errors is the best way to address all the related problems. Preventing medical errors will lower health care costs, reduce doctors’ insurance premiums, and protect the health and well-being of patients.
Playing with Safety: Dangerous Toys and the Role of America’s Civil Justice System
Since 1974, the Consumer Product Safety Commission (CPSC) has issued more than 850 recalls for toy products, many for hazards like magnets, lead and other dangers hidden in our children’s toys. Between 2004 and 2008, toy-related injuries increased 12 percent. Also, The CPSC is woefully under-resourced to cope with the flood of new products entering the U.S. marketplace.
The result of such corporate negligence and regulatory powerlessness is that dangerous products can be sold on shelves for years before the public has any idea of their hazards. In the face of such risks, and with so few resources at hand, the nation has come to rely on parents, consumer groups and the civil justice system to serve both as an early warning system and an enforcement mechanism against negligent corporations and their dangerous toys.
For years, the U.S. Chamber of Commerce has led the charge to undermine and destroy America’s civil justice system. The Chamber has spent hundreds of millions of dollars financing efforts to close the courthouse doors to American consumers through massive lobbying campaigns, advertising and bankrolling anti-consumer political candidates. It has its own multimillion dollar affiliate, the Institute for Legal Reform (ILR), whose sole mission is to restrict the ability of individuals harmed by negligent corporations to file suit.
Yet ironically, the Chamber is also one of the most aggressive litigators in Washington, D.C., appearing in hundreds of lawsuits a year, entering lawsuits at a rate of twice weekly. The hypocrisy is striking. In almost every case, the Chamber’s litigation on behalf of corporations has come at the expense of Americans’ health or financial security.
There are many laws and regulations aimed at protecting seniors, yet government agencies, non-profit watchdogs and media organizations consistently report that serious problems exist in our nation’s nursing homes. The same is true of insurance companies that mislead and defraud vulnerable seniors. Insurance industry regulators protest that they can do nothing. Even when they do raise their hands, they more often than not strike deals to keep fines to a minimum and settlements secret.
With the regulatory and legislative bodies unable to cope with a groundswell of neglect and abuse, the civil justice system has stepped into the breach. Attorneys who represent our nation’s seniors, and their families, play a critical role in uncovering abuse and neglect, and are the most effective force to compel corporate nursing homes to fix their conduct.
Trial attorneys have long been on the front lines of the environmental movement, opposing corporate plans to wipe out forests, cut down mountain tops, and destroy entire ecosystems. When corporate acts have resulted in devastation for ecosystems and communities, the initial outcry of politicians and regulators has often died out as time has gone by. However, the attorneys seeking justice for such acts fight on, sometimes over decades and against the most powerful corporations on the planet.
When the environmental movement was born in the 1960s and 1970s, a slew of laws were passed to protect the outdoors. But lax enforcement left corporations little incentive to comply. Ultimately, trial attorneys sought justice for communities destroyed by corporate polluters. The BP oil spill will undoubtedly result in long-term devastation. Given the history of corporate behavior in the wake of such disasters, it is clear trial attorneys and the civil justice system will play a vital role in holding BP accountable and helping to return the Gulf to the state it once was.
Few have ever heard of it, but the American Legislative Exchange Council, or ALEC, is the ultimate smokefilled back room. On the surface, ALEC’s membership is mostly comprised of thousands of state legislators. Each pays a nominal membership fee in order to attend ALEC retreats and receive model legislation. ALEC’s corporate contributors, on the other hand, pay a king’s ransom to gain access to legislators and distribute their corporate-crafted legislation. So, while the membership appears to be public sector, the bankroll is almost entirely private sector. In fact, public sector membership dues account for only around one percent of ALEC’s annual revenues. ALEC claims to be nonpartisan, but in fact its free-market, pro-business mission is clear. The result has been a consistent pipeline of special interest legislation being funneled into state capitols. Thanks to ALEC, 826 bills were introduced in the states in 2009 and 115 were enacted into law. Behind the scenes at ALEC, the nuts and bolts of lobbying and crafting legislation is done by large corporate defense firm Shook, Hardy & Bacon. A law firm with strong ties to the tobacco and pharmaceutical industries, it has long used ALEC’s ability to get a wide swath of state laws enacted to further the interests of its corporate clients.
In the wake of Toyota’s sudden acceleration scandal, automobile safety is once again a hot-button issue. After internal documents showed Toyota knew about potential defects, hid them from regulators, and even bragged about saving money from limiting its recalls, Toyota received the largest fine ever levied against an auto manufacturer. After 50 deaths and 8.5 million recalled cars, this saga is yet another example of regulation as an incomplete safeguard and manufacturers that put profits over safety. Unfortunately, this scenario has been repeating itself for decades.
In the 1960s, court cases began highlighting the dangers of car design and the willful negligence of manufacturers in designing cars that they knew to be unsafe. Since then the civil justice system has worked hand-in-hand with regulation to protect Americans, while spurring generations of safety innovations. Litigation will ultimately play a key role in identifying what went wrong with Toyota. These findings will aid regulators and legislators in protecting the American public in the future. By holding manufacturers accountable, the civil justice system will continue to spur safety innovations, as it has done for half a century.
Every day there is another recall or warning of a product that turned out to have design flaws or unexpected problems - a drug with an unanticipated side effect, a toy with a sharp piece that can injure a child, or a popular food product that may have been contaminated in production. These recalls and warnings are so frequent that consumers are no longer surprised. What would surprise consumers is the fact that sometimes those who are responsible for these dangers know about the problem and do nothing about it. People find it hard to believe that anybody would cover up a product's danger and then market that product to the very people it is likely to kill or injure. Yet, that is exactly what happens time and time again. The following pages contain true stories of corporations that have known their products were dangerous, sometimes deadly, but continued to push them onto unsuspecting consumers.
Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse
Insurers are increasingly using tough tactics against cash-strapped consumers to boost profits, according to a new report that investigates claims data, policies, and news accounts. The report details tactics that target policyholders, insurance companies that are engaging in these practices, and what consumers can do to prevent abuses and fight back. The current economic turmoil, which is greatly affecting the insurance sector, will likely spark insurers to use these tactics to maximize their bottom lines.
Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability
In a stealth effort coordinated at the highest levels of the Bush administration, multiple federal agencies were repeatedly ordered to usurp state law and undermine consumer protections, according to documents obtained through repeated FOIA requests by the American Association for Justice (AAJ). The documents detail how helping corporations escape accountability for dangerous products has been the administration’s top priority. The FOIA documents detail a Bush regulatory strategy called preemption. In short, the Bush administration has decided that federal rules should usurp – or preempt – the rights of states to protect their citizens with stricter safety standards. In turn, consumers can no longer use the state protections when harmed by negligence or misconduct, giving total immunity to corporations instead.
The Ten Worst Insurance Companies In America
To identify the worst insurance companies for consumers, researchers at the American Association for Justice (AAJ) undertook a comprehensive investigation of thousands of court documents, SEC and FBI records, state insurance department investigations and complaints, news accounts from across the country, and the testimony and depositions of former insurance agents and adjusters. Our final list includes companies across a range of different insurance fields, including homeowners and auto insurers, health insurers, life insurers, and disability insurers. One company stood out above all others. Allstate’s concerted efforts to put profits over policyholders has earned its place as the worst insurance company in America.
The Truth about Torts: Regulatory Preemption at the National Highway Traffic Safety Administration
Following the Supreme Court’s influential decision in Geier v. American Honda, the National Highway Traffic Safety Administration (NHTSA) has claimed that a number of new federal safety standards preempt state tort law. Meanwhile, auto manufacturers have attempted to convince state courts to dismiss lawsuits filed by injured motorists, claiming that the suits are impliedly preempted by existing safety standards. If federal courts start accepting these arguments on a broad scale, consumers will be deprived of the important protections provided by state common law. The Center for Progressive Reform’s report, The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety presents an overview of the preemption movement that has taken root in Federal regulatory agencies.
The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety
In recent years, the Bush administration has launched an unprecedented aggressive campaign to persuade the courts to preempt state tort actions. Widespread preemption of state tort law would significantly undermine, if not eliminate, the rights of individuals to seek redress for injuries caused by irresponsible and dangerous business practices and to hold manufacturers and others accountable for such socially unreasonable conduct.
The Case Against “Health Courts” Executive Summary
This report evaluates a proposal to replace the current civil justice system for compensating patients who have been injured by medical malpractice with a system called “health courts,” in which claims that were not settled in response to an apology and offer of settlement on behalf of providers would be adjudicated by medically-trained decision-makers employing pre-established guidelines and schedules. The report concludes that the health court proposal is ill-conceived, that it would be unfair to patients, that it would be unlikely to achieve its objectives, and that such of its goals as are reasonable can be achieved more fairly and with greater efficiency under the existing civil justice system. This report was prepared under a grant from the American Association for Justice Robert L. Habush Endowment. The authors of the report are Maxwell J. Mehlman, Arthur E. Petersilge Professor of Law and Director of the Law-Medicine Center at Case Western Reserve University School of Law, and Professor of Bioethics at Case Western Reserve University School of Medicine; and Dale A. Nance, Professor of Law, Case Western Reserve University School of Law.
Pattern of Greed 2007
Hurricane Katrina swept across the Gulf Coast, leaving historic levels of death and destruction in its wake. The storm caused an incredible $135 billion in damages, leaving thousands homeless, jobless and bereft of hope. Facing their darkest hour, many of the survivors found themselves victimized a second time by an insurance industry offering pennies on the dollar, refusing to honor many agreements, and claiming that the destruction had nothing to do with wind damage, which is covered under most policies, but was caused by floodwater, which is not. Shockingly, in the two years after the nation’s worst natural disaster, insurance companies have reaped more than $100 billion in profits.
Pattern of Greed 2006
In the year since Hurricane Katrina swept across the Gulf Coast, leaving historic levels of death and destruction in its wake, some in the insurance industry still haven’t made good on their promise to compensate area residents who find themselves near ruin. While the insurance industry enjoys record profits and bulging bank accounts, too many people are left waiting for the settlements that will help them get back on their feet. It’s no surprise. As this report relates, the insurance industry has made a practice of collecting billions of dollars from policyholders over the years and then stiffing them in their time of greatest need. Hurricane Katrina is just the most recent example.
Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry
This report demonstrates that the premise on which the insurance industry based its “tort reform” campaign of the last several years--that malpractice claims payments have been increasing--is false. Specifically, the data reveal that the amount the leading malpractice insurers project they will pay out in claims in the future has declined; that the amount they have actually paid out in claims has declined; and that their surplus--the extra cushion they have accumulated over and above the amount they have set aside to pay claims in the future--has increased to an all time high. In addition, the data reveal that notwithstanding the record surplus and profits of these carriers, they have generally declined to issue any dividends to their policyholders.