Personal Injury and Social Security Disability Blog

Consumers Beware - Pre-emption By Preamble Steals Your Legal Rights

Recent actions by federal regulatory agencies, combined with a U.S. Supreme Court decision are extremely troubling to consumer advocates. The gist of the problem is that federal agencies under the Bush administration are taking the stance that their rules trump state court verdicts.For example, if a federal agency said a prescription drug was safe, then a state jury verdict finding the drug to be unsafe would be void.

Aside from the overarching argument that federal agencies have no constitutional right to exert control over state courts, the problem with this approach is that political considerations can decide whether the agencies find certain products to be safe. If a giant pharmaceutical company makes a large contribution to a presidential candidate, there will be a natural tendency for the president to influence the federal agency to protect the financial interests of the pharmaceutical company. Some consumer advocates think that's exactly what's happening now.

Who gets hurt by this process? Consumers who have legitimate legal claims against manufacturers, but are prevented from filing those claims.

The Dallas Morning News ran an interesting story about this Pre-emption by Preamble." Here are excerpts.

If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can't sue the maker for injury if it met agency standards.

The Consumer Product Safety Commission says you can't sue a mattress maker if your mattress bursts into flame despite meeting commission standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration proposals for stronger roofs.

Plaintiffs' attorneys call it "silent tort reform." But it's part of tension existing since the nation's founding: conflict between state and federal law.

If they clash, state laws give way. That's in Article Six of the Constitution. But in areas where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. That includes product liability.

A developing body of judicial opinion could place new limits on the rights of those who buy or use products, consumer advocates say. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

What's riling plaintiffs' lawyers, consumer groups and some regulators is agencies' assertions their rules override state product liability laws. Most such claims are rooted in statements in the introductions to their rules, not the rules themselves.

"These pre-emption preambles may be only the beginning," New York University law professor Catherine Sharkey wrote in the DePaul Law Review. She projected preambles may "displace competing or conflicting state regulations or common law as a matter of course."

The practice varies by agency but is spreading. "It's absolutely a trend," said Deepak Gupta, staff lawyer for Ralph Nader's public citizen Litigation Group.

One example of what this means to the average person is found in NHTSA proposals for new SUV rollover rules.         

Attorneys general from 26 states asked the organization in 2005 to drop lawsuit protection from the rules, which could go into effect as early as July 1.

"State governments and the federal government will have to cover millions of dollars in health care costs which they will pass along to taxpayers, costs that, by all rights, should be the responsibility of manufacturers," the attorneys general wrote.

Sen. Patrick Leahy, D-Vt., at hearings last fall, said agencies have issued at least a dozen rules to shield drug and other product manufacturers from liability.   

Indeed, plaintiffs lawyers say "pre-emption by preamble" has been coming in waves during the Bush administration.

             

Government Now Helps Patients Compare Hospitals

The U.S. Department of Health & Human Services has just published a Web site that allows citizens to compare patient satisfaction with various hospitals. The site was described in a Dallas Morning News article today. Here are excerpts:

For the first time, the agency that runs Medicare and Medicaid posted online information (at hospitalcompare.hhs.gov) about patients' satisfaction with their care at particular hospitals. Most hospitals in the Dallas-Fort Worth area are included.

The information about hospital staff responsiveness, pain management, cleanliness, communication about taking medications and what to expect after discharge came from a 27-question survey that more than 2,500 hospitals around the country gave to adults sent home between October 2006 and last June.      

The goal was for each hospital to survey at least 300 patients, though some surveyed many more, said Herb Kuhn, the acting deputy administrator of the Centers for Medicare and Medicaid Services.

The patient data joins other information already available on the site comparing how hospitals perform on various treatments for heart attacks, heart failure, pneumonia and surgery.

"The ... data provides just one of many perspectives that a consumer can use when they assess with their physician what the right hospital is for their care," said Steven Campanini, spokesman for Dallas-based Tenet Healthcare Corp.

"Many factors go into selecting a hospital."    

American Hospital Association president Rich Umbdenstock hailed the emergence of "a much more balanced scorecard for the public."

He said it will help hospitals improve care and customer service.    

In the health care industry, Mr. Leavitt said, there's no way for consumers to compare prices and judge who's good.      

Though banks and airlines have adopted standard measurements for consumers to use, together with easy-to-use Web sites, health care providers have not, he said.

The survey and the other online information announced Friday are a step toward giving consumers the same kind of measurement for the health care industry, he said.

Featured Link - The American Chronic Pain Association

The American Chronic Pain Association has a great deal of information and resources on their Web site. Many of our personal injury clients and Social Security disability claimants must deal with chronic pain for long periods of time, and sites like this help our clients cope with their pain.

Here is the Mission Statement of the American Chronic Pain Association:

• To facilitate peer support and education for individuals with chronic pain and their families so that these individuals may live more fully in spite of their pain.
• To raise awareness among the health care community, policy makers, and the public at large about issues of living with chronic pain.

Friday Fun

This Shift game has great potential, but I'm awful at it. Someone do well, and tell me how you did it.

Roadside Assistance On Texas Highways

Have you received an e-mail saying that the Texas Department of Public Safety offers free roadside assistance and that the phone number is on the back of your Texas driver license?

That's sort of true, but not exactly. If you have a roadside problem (NOT an emergency like  a major car wreck), you can call that number on the driver license and DPS will pass along your information to the nearest local authorities, who may or may not offer roadside assistance. Any any rate, the motorist will be responsible for any charges for towing or repairing a flat tire, etc.

Here is the information from the DPS Web site:

The public needs to be aware that an erroneous e-mail is being circulated about the Texas Department of Public Safety Roadside Assistance Hotline.

The toll-free line has been operated by DPS since 1989 for motorists to use when reporting non-life-threatening situations on Texas roads and highways.  DPS then passes the information along to the appropriate local police agency or DPS office.

If a tow truck is ultimately dispatched, the motorist is responsible for any costs incurred. Some cities and agencies do have courtesy patrols and roadside trucks to provide non-towing services and they may be dispatched by the local agencies when appropriate. These two points are misrepresented in the widely-circulated e-mail that has led to an increase in inquiries to the Roadside Assistance Hotline.

The number, 1-800-525-5555, is printed on the back of virtually all Texas driver licenses and identification cards. Customers of participating wireless companies - ALLTEL, Nextel, Cingular Wireless, Houston Cellular and Verizon Wireless - can dial *DPS (*377) free of airtime charges anywhere in Texas.

Examples of when a motorist should call the Roadside Assistance Hotline include: stranded with car problems, hazardous road conditions, debris in the roadway, suspicious activity at a rest area, and obviously intoxicated or dangerous drivers.

The Roadside Assistance Hotline is not intended to replace 911 as an emergency number; 911 should still be the first option for emergency situations.

To better assist our communications operators please have the following information ready:

• Your name, cell phone number (and vehicle description if applicable);
• Highway location (mile marker would be helpful); and
• County location, or city location if inside city limits.

Danger Ahead For The Social Security System

According to a CNN story today, Treasury Secretary Henry Paulson is warning about the same dangers I mentioned in a January post on this blog — we're about to run out of money for Social Security and Medicare. Here are excerpts from the article:

Treasury Secretary Henry Paulson, saying that Social Security is "financially unsustainable," called Tuesday for quick action to keep the system strong and released a report detailing the program's funding shortfalls.

The federal government will have to start paying back what it owes the Social Security trust fund in 2017 so the program can continue paying 100% of benefits. By 2041, if the system is left unchanged, Social Security will only be able to pay out 78% of benefits promised to future retirees.

Shoring up Social Security is one of the main economic issues that will face the next president. Most proposals involve raising taxes or reducing benefits. Democrats typically have opposed benefit reductions while Republicans have opposed tax increases. 

"This year's Social Security Report again demonstrates that the Social Security program is financially unsustainable and requires reform," Paulson said at a briefing. "The sooner we take action ... the less drastic needed changes will be."

Borrowing from the future

For years, the Social Security program has been taking in more in payroll taxes from existing workers than it needed to fund benefits. The government borrowed that surplus and promised to pay it back with interest by issuing special issue bonds to the program.

But the proceeds from those bonds are finite, which is why the trustees estimate that the trust fund will run dry by 2041. Without that cushion, Social Security would only be able to pay out the money it collects in payroll taxes.

Demographics are a major reason for the funding shortfall. The number of workers, compared to retirees, has begun to shrink. That means the system will produce a smaller surplus, then none at all, and eventually it won't be able to pay out all benefits promised to future retirees.

Last year, the trustees also estimated that the government would need to start paying back the program in 2017, and that the Social Security trust fund would be exhausted by 2041.

Currently, the first $102,000 of wages are subject to the 12.4% payroll tax that funds Social Security. Typically, half the tax is paid by workers, and the other half is paid by employers.

To keep the system solvent over the next 75 years, the trustees estimated that the Social Security payroll tax rate would need to increase to 14.1%, up from the current 12.4%. Or lawmakers could bring it into balance by cutting benefits by 12%.

Nonpartisan experts say the pain of fixing Social Security can be lessened in two ways: Make changes soon so that they affect more people but in a less dramatic manner, and implement a combination of tax increases and benefit reductions so that neither is particularly steep.

Medicare a bigger problem

Medicare, which was also addressed in Tuesday's report, has an even larger and more immediate funding deficit to address.

The Medicare program is already taking in less than it has committed to pay out, and the trustees forecast that the Medicare trust fund will be depleted by 2019, at which point Medicare would only be able to pay out 78% of costs.

Medicare was designed to be funded by three sources: payroll taxes; Medicare premiums paid by beneficiaries; and general revenue or money from income taxes.

The payroll tax portion of that funding comes from a 2.9% tax on all wages - half of which is paid by workers and half by their employers. To make Medicare solvent over the next 75 years, the trustees estimate that 6.44% of wages would need to be taxed.

Health Insurance Companies Cut Back On Medical Tests - Does This Help Or Hurt Patients?

The Associated Press is running a story today in papers across the country, documenting cutbacks health insurance companies are making in the number of medical tests they approve. Actually, the carriers are requiring pre-approval for more and more tests, which has the effect of cutting back on the total number. The insurance companies say this is for the protection of the patients (to reduce unnecessary exposure to radiation), but doctors say patients are endangered because they're not getting sufficient testing before diagnoses are made. Here are excerpts from the story:

Insurance companies are taking a harder look at advanced medical scans like CT scans, citing spiraling costs and safety concerns. And some doctors agree that there’s emerging evidence that these scans are being over-prescribed.

“Costs are soaring in this area, quality concerns are mounting, and safety concerns are mounting,” said Karen Ignagni, the chief executive of the trade group America’s Health Insurance Plan.

Health insurers are requiring more preauthorizations before patients can have these scans, and setting other restrictions including mandating that the imaging equipment and medical staff be credentialed in advance.

Insurers fear that some patients are being exposed to dangerous radiation levels from having repeated CT and PET scans, which use many times the radiation of a regular chest X-ray. Sometimes, scans are repeated because the first ones were not done properly because of outdated equipment or poorly trained technicians.

But doctors say that the bigger problem with medical imaging tests is the insurance red tape needed to get them.

“Is this a preauthorization process, or are these (insurance) companies practicing medicine?” asks Dr. Arl Van Moore, the board chairman at the American College of Radiology, the specialists in medical imaging.

Moore cited another reason for increasing costs: Doctors sometimes order a diagnostic test that doesn’t need preauthorization - even if it provides less-helpful information than the one they prefer - then try to get approval for a more advanced test if the first one shows that it’s needed.

Worse yet, sometimes patients end up getting a riskier, more invasive test than what they really need, Hendel said. For example, cardiologists wanting to assess blood flow and blockages inside a patient’s heart arteries would prefer a nuclear cardiology test. With that, a small amount of a radioactive substance is injected in the blood and tracked using a camera.

Some doctors will instead order a cardiac catheterization, which doesn’t require advance authorization, Hendel said. But that involves threading a catheter through a blood vessel up into the patient’s heart - and carries a 10-times higher risk of complications such as a heart attack or stroke, he said.

Featured Link - NoEthics.net

The Web site NoEthics.net is interesting, to say the least. It reports information on lawyers, judges, and legislators deemed by the site's author to be unethical.

I applaud this effort, and wish there was more public awareness of such ethical lapses as mentioned on this site. My concern with some similar sites is that often people forget that anyone can file an ethics complaint against a lawyer, with or without a valid reason. It's important that we not libel or slander lawyers who have done nothing wrong, simply because a disgruntled client makes up a false complaint.

Here is the mission statement from NoEthics.net:

The Committee continues to focus primarily on exposing attorney and judicial misconduct. The Committee is neither interested in nor engaged in the sport of lawyer bashing. However, the Committee is interested in performing a service for the public that the legal profession is loath to do. Which includes, exposing attorney and judicial misconduct, providing advice on various legal matters, and discussing the numerous faults in our legal system and suggesting improvements.

I formed the Committee in 1993 after realizing the legal profession was not really interested in exposing misconduct or incompetence of it's members. After repeated victimization by several dishonest attorneys from 1980-1991, I discovered that the Toledo Bar Association and Ohio Supreme Court were not interested in disciplining it's own. Therefore, I decided to act in their stead. For any individual to take on the legal profession as I have done and continue to do is tantamount to engaging in sado-masochism.

My Web Page allows the browser the opportunity to review detailed treatments on the following subject matters, some of which are completed and some of which are under construction:

• Advice on the need for and employment of an attorney.
• Advice on settling your own claims without employing an attorney.
• Advice on how to determine your legal rights.
• Advice on determining if your attorney is dishonest or incompetent.
• Your legal rights to no-fault benefits if you reside in a no-fault state.
• Names and locations of dishonest and/or incompetent attorneys which are listed by State and/or Regions.
• Exposing attorney and judicial misconduct.
• Why contingent fee contracts should be declared unlawful.
• Why the jury system should be changed.
• Why losers in civil cases should pay.
• Why election of Judges should be declared unlawful.
• Why the procedures to discipline attorneys should be revamped.
• Anatomy of a Venal, Vindictive and Dishonest Judge.
• Expose on the Misconduct of Chief Justice Thomas A. Moyer of the Ohio Supreme Court.
• Anatomy of a Dishonest Psychologist.

Friday Fun

How could you NOT love a game named Shuffle Snake Bites?

Featured Link - SearchSystems.net

SearchSystems.net is a great collection of searchable databases. You can get access to many of them for free, but for less than $50 per year you can have full access to more than 40,000 searchable databases that contain tons of information about you that you thought was private.

This site can be a great help to lawyers who represent personal injury clients and Social Security disability claimants and who need to locate or verify personal information about either our own clients or about defendants and witnesses. Here is a statement from the site:

Welcome to Search Systems - the original, largest, most up-to-date and reliable directory of public records and best resource for background checks and criminal records on the Internet. Online since 1997 and ranked Number One for public records since 2001, SearchSystems.net continues to be by far the best resource of business information, corporate filings, property records, deeds, mortgages, criminal and civil court filings, inmates, offenders, births, deaths, marriages, unclaimed property, professional licenses, and much more. Easy access to billions of records!

Browse the site, then Sign up for DirectPass to access our directory AND get discounts on our Premium database of over 300 million state, national, and international criminal records (the largest on the Internet), and a database of over 100 million bankruptcies, judgments, and tax liens.

Now over 41,212 Searchable Public Record Databases!