Personal Injury and Social Security Disability Blog

ATLA's Comments On State Of The Union Address

This post is a copy of an e-mail received from the Association of Trial Lawyers of America

Facts Don't Match Bush's Rhetoric on Lawsuits; Federal Tort Trials Down 79%

As the Associated Press recently reported, White House officials have indicated that the President will include in his State of the Union address a call for limits on compensation for injured Americans. Attacking the civil justice system is nothing new for President Bush.

President Bush has railed against "frivolous" or "junk" lawsuits more than 180 times since taking office, and has called for limiting the rights of people injured by negligent corporations in his last three State of the Union addresses. He has blamed trial lawyers and the civil justice system for everything from problems with public schools to the rising federal budget deficit to high health care costs. But the facts tell a very different story.

The Congressional Budget Office (CBO) reported that medical malpractice costs amount to less than 2 percent of overall health care spending in the United States.

The President's claims that lawsuits are clogging our courts are undermined by facts released by his own administration last summer. According to the U.S. Justice Department, federal tort (personal injury) trials have decreased by 79 percent since 1985. And a recent survey of federal judges - including those appointed by Bush - found that an "overwhelming majority" do not believe that so-called "frivolous lawsuits" are a major problem in our civil justice system.

Summary of Dept. of Justice Study

On the Hill

With major challenges facing the country and Congress in 2006 - from national security to millions of uninsured Americans - Senate Majority Leader Bill Frist has announced his intention to spend the coming weeks focusing on a bill that would hurt American workers and hand a $20 billion bailout to asbestos corporations. The asbestos bailout bill, S. 852, is opposed by every major asbestos victims' organization, organized labor, the insurance industry, and a large portion of the business community; it is being pushed by a small group of large, politically-connected corporations that stand to get the multi-billion-dollar bailout.

See why asbestos victims oppose S. 852

By the Numbers

79%: Decrease in tort cases resolved in U.S. District Courts between 1985 and 2003, according to a report by the Department of Justice.
[Source: U.S. Department of Justice]

Less than 2%: Percentage of health care spending attributable to medical malpractice costs, according to the Congressional Budget Office (CBO).
[Source: Congressional Budget Office, "Limiting Tort Liability for Medical Malpractice"]

Update On Leonel Garza Texas Vioxx Trial

As reported by Reuters, the plaintiff's attorney in the Rio Grande City, South Texas Vioxx trial told the jury that Merck knew about the risks of its pain drug Vioxx and failed to warn doctors and consumers when it brought the drug to market in 1999.

The family contends that Leonel Garza's fatal heart attack was caused by Vioxx, which he stopped taking three weeks before he died, and that Merck did not warn him or his doctors of the risk.

Three previous Vioxx trials ended in one victory for each side and one mistrial. Merck's loss came in Angleton, Texas, where a jury returned a $253 million verdict against the company. Merck is appealing.

Merck's attorneys say the company acted responsibly in working with the Food and Drug Administration to develop Vioxx and in pulling the drug from the market in September 2004 after a study showed increased heart risk in some long-term users.

Searching For Information On This Blog

I am going to experiment with various search programs to make it easier for you (and me) to find information on this blog. For now I have the Google search bar on the left side of the page.

Visitors come to this blog after doing a Web search for various terms or phrases, and they land on one particular post. Now they will be able to search the blog for additional posts on the same topic.

Link of the Day - Friday Fun

There seems to be a calendar now with just about every kind of monthly photos -- cats, dogs, sunsets, whatever. But I bet you've never seen a calendar filled with drunk Russians!

Congress Tries To Protect Big Drug Companies From Lawsuits

An article at TomPaine.com provides as clear an explanation as I've seen about the methods and motives of the current Congress and Administration to protect the pharmaceutical industry from liability for negligence resulting in injury or death.

The article, which I am attaching to this post, reviews the proposed bill that shields drug companies from any lawsuit regarding a drug that received approval from the Food and Drug Administration. The argument for the bill is that if the government approves a drug, then the manufacturer shouldn't be held responsible for any problems that use of the drug causes.

The counter-argument, of course, is that the Administration is slashing the FDA budget, and appointing drug industry cronies to top FDA management positions. The FDA will turn a blind eye to potential drug problems, approve drugs without adequate testing, and the drug companies will be off the hook.

This is a dangerous bill for all Americans -- except of course the CEOs of the big drug companies.

Social Security Disability Trial Work Period

I noticed this question and answer at the Akron Beacon Journal Web site. The answer is dangerously incomplete because it doesn't warn that a Trial Work Period is limited to nine months, and the nine months need not be consecutive. If a Social Security disability recipient exceeds the allowable Trial Work Period and is not notified promptly by the Social Security Administration, the recipient will be facing an overpayment situation.

Q: I am getting Social Security disability benefits. If I try to return to work, will that affect my checks? I read that people on Social Security could earn up to $12,480, but I don't expect to make that much. F.M., Uniontown

A: The $12,480 limit doesn't apply to disability cases. The disability program uses special rules called ``work incentives'' that allow a person to keep their cash benefits and Medicare coverage while attempting to return to work. A disabled person returning to the workforce is protected by one work incentive called a ``trial work period.'' As long as the work activity is reported and the person continues to have a disabling condition, their full Social Security benefit will be paid regardless of how much they earn during the trial work period. After the trial work period ends, benefits will stop if the earnings are considered "substantial.'' For Social Security purposes, substantial means earnings of $860 or more per month in 2006. For more information about work incentives, visit Social Security's Web site at http://www.socialsecurity.gov/ or call 800-772-1213 and ask for the publication, Working While Disabled: How We Can Help.

Texas Jury Selected In Fourth Vioxx Trial

As reported by the Associated Press, a jury of ten men and two women were selected Tuesday to hear the nation's fourth Vioxx trial, in South Texas. Jurors may be deciding if 71-year-old Leonel Garza's fatal heart attack was the end result of 23 years of heart disease or the Vioxx he took for arm pain for less than a month.

In previous trials, Merck lost a case in a Texas court and won in a New Jersey court. A federal trial ended in a mistrial.

This trial will be unusual because the judge travels among several sparsely populated counties, and plans to hold court for only one week per month. So even though this is the fourth Vioxx trial to begin, another lawsuit scheduled for February in New Jersey may actually finish before the South Texas case.

Texas Governor Perry's Misleading Television Commercial

If I started pointing out every misleading political ad, I'd never have time to do anything else. Pretty much EVERY political ad is misleading in some way. But one running on TV now especially troubles me, because our Texas Governor has made a point to demonize trial lawyers at every possible opportunity.

The consumer group Texas Watch has put out a rebuttal of sorts to Governor Perry's ad. The full article goes into great detail, and I think it's important enough to include in a continuation of this post. Here are some excerpts:

The Script: Rick Perry's 30-second television advertisement entitled "Proud of Texas"

I've never been more proud to call myself a Texan.

In Texas we set the national standard for economic development. We've gained 300,000 new jobs, and lawsuit reform is bringing better healthcare to millions. We've invested 10 billion new dollars in our public schools, while improving standards, accountability and student performance.

Our people are compassionate, our visions bold, our values strong. The best is yet to come. I'm proud of Texas, How about you?

The Relevant Claim: "And lawsuit reform is bringing better healthcare to millions."

The Support: Source — Texans for Rick Perry Campaign

1. According to the Texas Board of Medical Examiners (TBME), more than 3,000 doctors have begun practicing in Texas since the passage of Proposition 12, the major medical malpractice reform measure approved by voters two years ago.

2. More doctors are serving in underserved areas.

3. More emergency room physicians and medical specialists are practicing in Texas now in relation to two years ago.

The Rebuttal: Source — Texas Watch, American College of Emergency Room Physicians

1. The governor is right. According to statistics collected by the TBME, between 2003-2005 (post-Prop 12), roughly 3,000 more doctors were licensed to practice medicine. But those same statistics reveal that between 2001-2003 (pre-Prop 12), roughly 3,000 additional doctors were licensed to practice medicine. With the same growth in the number of doctors both pre- and post-Proposition 12, attributing the cause of that growth to tort reform seems a stretch.

2. The rate of growth in the number of new doctors by region in traditionally underserved areas such as rural Texas and South Texas is lower now than it was before Prop 12. Only the major urban areas have seen any increase in the rate of growth. That largely may be due to factors not linked to medical malpractice, namely better facilities, fewer Medicaid patients and physicans' lifestyle choices.3a. Even if more emergency room doctors are practicing in Texas, it doesn't mean they are delivering "better health care." According to a state-by-state report card conducted by the American College of Emergency Services, the state received near-failing grades in three of four categories: a D+ access to emergency care; a D+ in care/patient safety; and a D in patient safety. The state's overall average was helped by its grade in medical liability reform: A+. Because of tort reform, Texas ER physicians only can be sued for gross negligence rather than simple negligence.3b. Supporters of Prop 12 claimed during the 2003 campaign that 60 percent of Texas counties were without obstetric and gynecology services. Today, more than two years after Prop 12 was implemented, roughly 60 percent of counties are still without those services.

The Index: Accuracy index rating — 2.4

Sorry Guv, but cause and effect on this issue is near-impossible to prove. And how can you say that lawsuit reform is bringing better health care to millions without acknowledging that one out of four Texans remains uninsured (highest rate in the nation), state spending on hospital care ranks near the bottom (41st in the nation) and there are huge shortages of board certified ER docs (44th) and registered nurses (48th)? We know you only had 30 seconds to make your pitch, but half the facts are worse than no facts at all.

Blackberry Appeal Rejected By Supreme Court

The news is all over the Internet today about the Supreme Court's rejection of Blackberry's appeal of a patent-infringement suit. If I used a Blackberry, rather than my Treo, I'd be worried.

The court's refusal to hear the appeal means that a trial judge could impose an injunction against the company and block BlackBerry use.

Next Vioxx Trial Starts This Week

As reported in a Dallas Morning News article, the next Vioxx trial is about to start in South Texas, an area referred to as the Rio Grande Valley, or just the Valley. This is one of the very few areas of Texas with a reputation of being friendly to plaintiffs in injury trials. That may play a large part in the outcome of this trial, because the facts are actually quite weak for the plaintiff.

Excerpts from the article:

Leonel Garza was 71 when he died of a heart attack, 23 years after being diagnosed with heart disease and decades after a heart attack and a quadruple bypass. But his lawyers who are suing Merck & Co. say it was the Vioxx that he took for arm pain for 17 days that killed him.

Even though the New Jersey pharmaceutical giant is facing hundreds of lawsuits from people who took the once-popular painkiller before it was pulled from the market, Mr. Garza's case would have little hope of making it to trial anywhere but the Rio Grande Valley, some legal experts say.

"What you're seeing is a case that is strong in the merits for Merck but has got to be balanced on the challenges Merck will face in that jurisdiction," said Peter Bicks, a New York City lawyer who has successfully defended large companies in Texas.

"This jurisdiction has been viewed as one of the toughest jurisdictions for corporate defendants in the country."

But Leila Watson, a Birmingham, Ala., plaintiff attorney with about 70 Vioxx cases, said Mr. Garza was "exactly the kind of patient there should of been a warning for."

"Nobody should have given this patient Vioxx, and I don't fault the doctors," she said.

Merck & Co. withdrew Vioxx from the market in September 2004, when a study showed it could double the risk of heart attack or stroke if taken for 18 months or longer. However, it says no such risk has been shown for shorter periods.

According to Mr. Garza's lawyers, he was given Vioxx on April 4, 2001, and suffered a fatal heart attack 17 days later.