Personal Injury and Social Security Disability Blog

Toyota Recalls Almost 4 Million Vehicles for Floor Mat Dangers

I  have written before about dangers presented by floor mat design in certain Toyota and Lexus vehicles. Toyota has now recalled almost four million vehicles because of this defect. If you have one of the affected vehicles, you need to remove the floor mats until Toyota comes up with a solution to the problem. Here are excerpts from an article by the Associated Press:

Toyota Motor Corp. said Tuesday it will recall 3.8 million vehicles in the United States, the company's largest-ever U.S. recall, to address problems with a removable floor mat that could cause accelerators to get stuck and lead to a crash.

The recall will involve popular models such as the Toyota Camry, the top-selling passenger car in America, and the Toyota Prius, the best-selling gas-electric hybrid.

Toyota said it was still working with officials with the National Highway Traffic Safety Administration to find a remedy to fix the problem and said owners could be notified about the recall as early as next week. Toyota spokesman Irv Miller said until the company finds a fix, owners should take out the removable floor mat on the driver's side and not replace it.

"A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop a vehicle, which could cause a crash, serious injury or death," Miller said.

"This is an urgent matter," Transportation Secretary Ray LaHood said in a statement. "For everyone's sake, we strongly urge owners of these vehicles to remove mats or other obstacles that could lead to unintended acceleration."

The recall will affect 2007-2010 model year Toyota Camry, 2005-2010 Toyota Avalon, 2004-2009 Toyota Prius, 2005-2010 Tacoma, 2007-2010 Toyota Tundra, 2007-2010 Lexus ES350 and 2006-2010 Lexus IS250 and IS350.

The Japanese automaker warned owners that if they think their vehicle is accelerating out of control, they should check to see whether their floor mat is under the pedal. If a driver can't remove the floor mat, Toyota advises drivers to step on the brake pedal with both feet until the vehicle slows and then try to put it into neutral and switch the ignition to accessory power.

For vehicles with engine start/stop buttons, Toyota said the engine can be shut off by holding the button down for three seconds.

For more information, consumers can contact the National Highway Traffic Safety Administration's hotline at (888) 327-4236, Toyota at (800) 331-4331 or Lexus at (800) 255-3987.

The Real Reason for "Excessive" Medical Tests

The Dallas Morning News has an editorial regarding medical testing that is relevant to the current health care debate. In my experience, "excessive" medical testing has more to do with medical professionals wanting to profit from the tests than with the defensive medicine so often mentioned by proponents of tort reform. That doesn't mean the medical tests aren't helpful in diagnosing the patient’s problem. I'm just saying that defensive medicine doesn't seem to be the driving force behind these additional tests. And that's one more reason why tort reform, besides being unfair to patients, is simply not the solution to the medical expense crisis. Here are excerpts from the editorial:

While looking at home health care, Texas lawmakers also should revisit the ease with which doctors refer patients to clinics they have an ownership interest in. We don't doubt that many physicians are above board in recommending tests. Still, a conflict of interest is bred into the referral, and patients should be aware.

Texas has a particular abundance of medical imaging operations that are ripe for question. The Dallas Morning News' Ryan McNeill reported last week that only California built more medical imaging centers than Texas from 2000 to 2007. And the centers are a new revenue stream for some doctors. The General Accounting Office reports that Medicare payments to cardiologists increased 13 percent from 2000 to 2006.

Opponents killed recent proposals in Austin to require licensing or accreditation of the machines. This year, the bill included a provision to study the volume of self-referrals in Texas by physicians.

The Legislature's health committees should use this interim period to craft a similar proposal for the 2011 session. And they should make it clear that doctors must let patients know when they own all or some of the clinic to which the patient's been referred.

Increasing Demand and Declining Funds for the Mentally Ill in North Texas

The current economic crisis has resulted in many more North Texans seeking taxpayer-funded mental health care as people lose both their jobs and, with it, health insurance.  At the same time, the company that runs the state program is preparing to cut its budget. Demand has increased by about 17 percent since July 2008 and 30 percent since January 2008 across the seven-county metropolitan area. Kim Horner of the Dallas Morning News reported at length over this local crisis in mental health care.

A few high points of her article are shared here:

∙           ValueOptions of Texas Inc., a company that runs the region's mental health program, plans to cut $10 million from its program after being denied additional funds from the state. The program that serves homeless and poor residents was already stretched thin before the increase in people seeking help.  Area mental health providers who also depend on money from ValueOptions will likely be forced to lay off employees and reduce services to some of the most ill people in the community.

∙           Liam Mulvaney, president and CEO of LifeNet Community Behavioral Healthcare, a mental health provider, said last week to the North Texas Behavioral Health Authority that LifeNet currently spends about $300 a month per patient that is soon to be cut to $140 per month. Mental Health America’s public policy director, Janie Metzinger, noted the false economy of reducing services is a lack of treatment will cause more people to get sicker and end up in emergency psychiatric care costing taxpayers even more money down the road.

∙           Dallas Police Senior Cpl. Herbert Cotner, who has trained hundreds of officers on how to deal with people with mental illnesses, said mental health care should be treated and funded just as any high priority safety issue.

Surgical Sponge Cases to Test Time Limits on Texas Medical Malpractice Lawsuits

An article in the Austin American-Statesman details two cases before the Texas Supreme Court. The cases will give the Court an opportunity to correct one glaring injustice in medical malpractice law. Many plaintiff lawyers are not too optimistic that our ultra-conservative, pro-insurance Supreme Court will even recognize that there is an injustice, much less take steps to correct it. Here are excerpts from the article:

Surgical sponges left inside two Texas women — but undiscovered for years — will test state laws that place fairly strict time limits on suing doctors and hospitals for malpractice.

One woman's lawsuit was thrown out because the sponge, so grown over with fibrous tissue that it could not immediately be identified, wasn't found for nine years, long after the two-year statute of limitations had expired.

The second woman's lawsuit survived, however, despite an 11-year gap between her hysterectomy and the sponge's discovery during exploratory surgery in 2006.

Both cases are before the Texas Supreme Court, which will decide whether their legal challenges should continue.

The women argue that enforcing the lawsuit deadlines would deny them access to the courts — a right guaranteed by the Texas Constitution — because they had no way of knowing that misplaced sponges were causing their health problems until a surgeon found and removed the objects.

But doctors and hospitals say time limits for lawsuits — intended by the Legislature to lower malpractice insurance rates and attract more doctors to Texas — provide a public benefit that outweighs the rights of individual plaintiffs.

What's more, they say, the deadlines protect medical professionals from problems that bedevil old claims, from faded memories to dead or missing witnesses, while shielding retirees from lawsuits after many have stopped paying malpractice insurance.

The two Supreme Court cases belong to a special class of medical malpractice claims known in legal shorthand as "sponge cases" — foreign objects left inside patients after surgery.

Unlike many lawsuits about misdiagnoses or mistreatment, in sponge cases there is no question that a medical mistake was made and usually no question about who was responsible.

But like all medical malpractice lawsuits, sponge cases are subject to two legislatively created deadlines:

• The statute of limitations, which gives patients two years to file suit after a disputed treatment — unless they can prove they did not have a reasonable opportunity to discover the problem before the deadline. Because "reasonable" is subject to interpretation, this is not as easy as it may sound.

• The statute of repose, a lesser-known deadline that bars any malpractice lawsuit filed 10 years after treatment.

Each of the two sponge cases — argued before the Texas Supreme Court on Sept. 9 — challenges a different time-limit statute, giving the court's eight justices (minus Scott Brister, who recently resigned to return to private law practice) an opportunity to expand or shrink a patient's ability to sue.

A ruling isn't expected until next year. The cases are Walters v. Cleveland Regional Medical Center, 08-0169, and Methodist Healthcare System v. Rankin, 08-0316.

U.S. Bill Would Apply Antitrust Law to Medical Insurers

The Reuters news agency reports there is legislation introduced in the House and Senate that would at long last end the antitrust exemption for health insurance and medical malpractice insurance companies. This comes in the midst of a vigorous, to say the least, debate over health care reform and concerns about health premiums rising far faster than the rate of inflation. Here are excerpts from the article:

The bill, introduced by the chairmen of the Senate and House of Representatives Judiciary Committees, would repeal an exemption granted in 1945 and make health insurance and malpractice insurance companies subject to antitrust laws that forbid price fixing, bid rigging, and dividing markets between them.

A separate report released on Tuesday found that U.S. workers who get health insurance for their families through their employers have seen their premiums more than double in the last decade.

The Kaiser Family Foundation said the average premium for a company-provided family health insurance plan rose from $5,791 in 1999 to $13,375, a 131 percent jump.

Separately, the Business Roundtable, an organization that represents large U.S. corporations, said per-employee health costs would jump to $28,530 in 2019 from $10,743 currently if nothing is done.

Friday Fun

This is a great list of 100 Things Your Kids Will Never Know About. Stuff that either has disappeared or is on the way out. Sadly, I not only remember when we had almost all the things on this list, but I also remember a time before we had some of these things. For instance, DOS is one thing on the technology list. But I started using computers before DOS was invented. Back then, we used the CP/M (Control Program for Microcomputers) operating system. And before we had 5.25" floppy discs, we used 8" floppies. Those things were enormous!

Anyway, check out this list and see what you remember.

Tort Reform: A Bad Bargain That Won't Fix Health Care

In an excellent blog post at The Huffington Post, AAJ president Anthony Tarricone makes the case that tort reform is bad for Americans and will not solve the health care dilemma. The entire article is well-worth reading, but here are the opening paragraphs:

On Friday, the Associated Press reported that a southern Illinois woman died after catching fire on the operating table during surgery. This woman unfortunately joined the least discussed, but most far-reaching statistic in health care: according to the Institute of Medicine, 98,000 people die annually from preventable medical errors.

To put this into perspective, 98,000 deaths is like two 737s crashing every day for a whole year. If this were the case, would lawmakers consider giving the airlines immunity, or make air travel safer instead?

As part of a "grand bargain" to create a bipartisan health care bill, some have said tort reform should be included. For most people, the term "tort reform" is empty and meaningless. But here's what it means: taking away the legal rights of patients, injured through no fault of their own, and preventing them from obtaining legal recourse. And it isn't fact-driven or grounded in reality; rather, it's just part of the Washington sideshow to distract from what really plagues our country's health care system.

Look at what the actual data says: 98,000 people dead every year from preventable medical errors, at a cost of $29 billion. Countless more are seriously injured with astronomical costs. The Congressional Budget Office and Government Accountability Office have looked at tort reform multiple times, and said it will save practically no money. They also found no evidence of so-called "defensive medicine," finding that doctors run more tests because of the fee-for-service structure, or because of the benefits extra tests have on patient care.

Additionally, a 2006 study from Harvard found that 97% of cases were meritorious, totally debunking the idea that frivolous lawsuits plague our courts. And while 46 states have enacted some kind of tort reform, health care costs have continued to skyrocket, while injured patients or their families often can't seek justice.

It's no coincidence that the same people who have hijacked our health care system -- the insurance companies -- are the same folks who want tort reform. Insurers charge exorbitant amounts for malpractice coverage, raking in billions of dollars off the backs of doctors. Then, the insurance companies lobby for tort reform, and promise to pass the savings onto physicians and consumers. Of course, the savings never materialize, while injured patients are left holding the bag. We've been fooled once before, and shouldn't let it happen again.

Featured Link - National Punctuation Day

Today is National Punctuation Day, and it couldn’t come soon enough for me. I get so tired of seeing improper punctuation coming from people who should know better. Misplaced quotation marks and unnecessary apostrophes just drive me crazy. Do yourself a favor and visit this site or buy a book on grammar and punctuation. You know who you are!

Survey Suggests Fatigued, Stressed Hospital Residents Make More Major Medical Errors

MedPage Today (9/22, Walsh) reported, "Internal medicine residents who report higher levels of fatigue, sleepiness, and distress are at greater risk for reporting major medical errors," according to a study in the Journal of the American Medical Association. Researchers issued questionnaires to residents who had enrolled in a "Mayo Internal Medicine Well-being Study between July 2003 and February 2009." Among the "356 participants, 139 (39 percent) reported making at least one major medical error." Of those who reported an error, "68.7 percent screened positive for depression at some point during the study." The researchers also found that "one-point increases on the fatigue and sleepiness scales were associated with 14-percent and 10-percent increased likelihoods of an error being reported during the subsequent three months."

Medscape (9/22, Barclay) added that other factors associated with subsequent error were "burnout, depersonalization, emotional exhaustion, lower personal accomplishment, a positive depression screen," and a diminished overall quality of life. The study authors concluded that "in addition to the national efforts to reduce fatigue and sleepiness, well-designed interventions to prevent, identify, and treat distress among physicians are needed." Still, they stressed that "additional research is necessary to determine the most effective strategies for accomplishing these goals."

HealthDay (9/22, Reinberg) noted that Dr. David J. Birnbach, director of the UM-Jackson Memorial Hospital Center for Patient Safety, said that although "changes in how doctors are trained are making things better for doctors and safer for patients," he is concerned that "no system exists to monitor whether they are tired or whether the hospital is complying with current regulations." Notably, in another study in the medical education-themed issue of Journal of the American Medical Association, "doctors who participated in a program that included meditation, self-awareness exercises and stories of 'meaningful clinical experiences' improved their well-being, had more empathy toward patients, and were less 'emotionally exhausted' or burned out, the researchers found."

Reuters (9/23, Fox) also covers the resident-fatigue study, pointing out that although most US hospitals have reduced the typical 100- to 120-hour resident work-weeks, most training hospitals still require at least 80 hours per week.

From the American Association for Justice news release.

Health Care and the Myth of Tort Reform

The St. Louis Post-Dispatch has an interesting editorial commenting on the recommendations of some politicians to make "tort reform" a part of any new health care legislation. Those of us who have spent years involved in the medical malpractice claims process and have read many studies on the subject understand that medical malpractice claims amount to a tiny percentage of health care costs. A bigger problem, and a better way to look at this situation, is the exorbitant insurance premiums charged doctors and hospitals by the major carriers. These premiums often have less to do with actual malpractice claims than with the profit or loss of the insurance companies' investments in the stock market. Here are excerpts from the editorial:

Plenty of reasons exist to support medical malpractice reform. Doing it to slow the dizzying growth in health care spending isn't among them.

Whatever form those projects might take, few economists believe tort reform by itself — even the most radical tort reform — would significantly reduce what
Americans spend on health care. Most experts say the big reasons for high U.S. health spending are chronic illness, expensive new medical technology and an
aging population. Lawsuits are far down the list.

The most authoritative estimates put the direct cost of malpractice litigation — insurance premiums, lawyers fees and awards to injured patients — at about 2
percent of overall health care spending. Premiums make up about half of that.

Even the most aggressive tort reform wouldn't save all of the direct costs. The biggest portion of malpractice settlements and jury awards are not for "pain
and suffering" or punitive damages, but for actual damages — lost income.Ned future medical treatment.

Meanwhile, insurance companies providing malpractice insurance are doing pretty well. Last year in Missouri, they paid out only $1 in awards for every $5 they collected in premiums. The number of claims in 2008 was the lowest in the 30 years.

In states that have enacted some measure of tort reform, including Missouri, which limited so-called non-economic damages in 2005, health care spending is
rising just as fast as it is elsewhere. It hasn't declined in any state, no matter what legal reforms were put in place.

A 2006 report by the Congressional Budget Office found that there were no reliable studies that showed tort reform by itself reduced health care spending.

One point made by tort reformers is undeniably true: Some people awarded damages under the current system aren't victims of malpractice; they're victims
of bad outcomes. Even with the best care, people sometimes die or suffer serious injuries. Those patients deserve sympathy, not compensation.

It also is true that many, if not most, victims of malpractice never file suit, often because the cost of bringing suit is more than what they could hope to
recover. Those patients deserve compensation for their actual injuries.

Many opponents of Mr. Obama's reform plans point to tort reform as a kind of silver bullet to reducing health care costs. Like many of their claims, the facts don't bear that out.