Yamaha ATV Bites the Dust – Too Little Too Late

My family and friends are accustomed to the constant level of vigilance I maintain regarding things that can harm us. That is a very nice way of saying I am a ____ (fill in your own word).

When I see a floor mat that is out of place, I put it back. Water on a floor? I go hunting for paper towels. And don’t even think of getting into my car without a seat belt. Does my paranoia make a difference? Well, I am fairly sure my superstitious practice of patting the side of an airplane twice does nothing to improve its airworthiness, but it has worked every time so far!

Why am I so on guard? There are two reasons. First, in my business, I see the wreckage of human misbehavior on a regular basis. Bad drivers, defective products, inattentive store owners, dangerous doctors, and the list goes on and on. My business can be discouraging, as my clients are suffering from the damage done by others. It comforts me to know I make a difference in the lives of victims by helping them obtain compensation for their injuries.

The other reason I am so attentive to safety is that our government does such a poor job of protecting us. The FDA, FAA, NTSB, CPSC, OSHA and all the other amalgamations of letters that represent governmental agencies charged with keeping you safe do a miserable job of preventing injuries.

But, every once in a while, a government agency does something right. From the Wall Street Journal Online (web link available at the following:
http://online.wsj.com/article/SB123850960193973809.html) on March 31, 2009 at 10:49 am EST:

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WASHINGTON — The Consumer Product Safety Commission said Yamaha Motor Co.’s U.S. sales arm has agreed to suspend sales of its Rhino 450 and 660 off-road recreational vehicles, and to offer free modifications to vehicles already in service that would make the vehicles less prone to rollover accidents.

The CPSC, in a statement, said owners of the affected Yamaha Rhino vehicles should immediately stop using them until the repairs are made.

The CPSC statement said the agency’s staff has investigated more than 50 incidents involving 46 driver and passenger deaths in these two Rhino models. The agency said “more than two-thirds of the cases involved rollovers and many involved unbelted occupants.”

Many of the accidents “involve turns at relatively low speeds and on level terrain,” the agency said. About 120,000 of the affected Rhino models have been distributed nationwide since the fall of 2003, the agency said.

The CPSC said Yamaha will install a spacer on the rear wheels and remove a rear antisway bar to help reduce the chance of rollover. The company will also continue to install half doors and additional passenger handholds on vehicles that don’t currently have those features.

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Hallelujah! The CPSC finally gets Yamaha to take two of its rollover-prone ATVs off the market. Of course, it only took “50 incidents involving 46 driver and passenger deaths” to get them to act. This is a classic case of “too little too late.” The government should ban all four-wheelers. They are unstable at all but the lowest of speeds, and people who ride them never want to go slow.

You know what I’m thinking? If there were 46 people whose deaths have been reported, there are others whose deaths have not yet come to light. And if this many people have died, there are hundreds who have been injured. Why didn’t the government act sooner? How must the family of the 46th victim feel, knowing there were 45 deaths before their loved one was killed in a rollover accident?

For that matter, why didn’t Yamaha act sooner? Why do big companies need a governmental agency to tell them to stop killing people?

My guess, and this is an educated guess, is that Yamaha made the decision to go along with the CPRC-requested recall for economic reasons. They probably figured the cost of doing business in these ATVs was too high. What caused the cost of killing people to be so high? Lawsuits. If Yamaha did not have plaintiff lawyers breathing down their necks, taking them to court and making them pay for their dangerous four-wheelers, do you think they would have yielded to pressure from the government?

The next time you hear some politician rail on against trial lawyers, ask him about the 46 victims of the Yamaha Rhino. How many more victims would there be if Yamaha did not fear the judgment of a court and jury? When you hear politicians talk about “tort reform,” what they are really advocating is closing the courthouse door in the faces of victims like the 46 families whose lives have been upended by an unstable ATV, a corporation that put profits about safety, and a government too feckless to stop them.

Steve Waldman – swaldman@gwlawyers.com

Wyeth Postscript – Drug Company Lawyer Adds Insult to Injury

I do not know if you read my prior post regarding the Wyeth v. Levine decision from the United States Supreme Court, but here is a postscript.

In an op-ed piece published in the Chicago Tribune under the heading “The Tragedy of Diana Levine,” (http://www.chicagotribune.com/news/chi-oped0313malpracticemar12,0,4620990.story), Wyeth lawyer Mark Hermann quoted the dissenting opinion from Justice Alito that the warnings already on the labeling for Phenergan were sufficient, and further warnings would have made no difference:

“As Alito wrote, ‘the physician assistant…disregarded at least six separate warnings that are already on Phenergan’s labeling, so (Levine) would be hard pressed to prove that a seventh would have made a difference.’”

Apparently, Justice Alito, along with sore losers Hermann and Wyeth, forget that the function of the jury in our judicial system is to make factual determinations regarding exactly these questions – whether a different course of action would have made a difference. In countries where there is no jury system, people (often women) who are victimized must rely upon other people (usually men) in black robes to tell them what the facts are. We have seen the judicial process differently for 220 years. We believe in juries, and the right of everyone to have their judged by a representation of their peers.

Mr. Hermann, Wyeth and Justice Alito are whining about the very core of American justice. They do not wish to argue a legal principle; they seek to relitigate the facts. They believe it is appropriate for a court of appeals to substitute its opinion for that of a jury. This is nothing short of hijacking justice. It is “judicial activism,” which conservatives – including those joining the chorus of Wyeth Wailers – have derided for years. Of course, as with everything else in politics, judicial activism is fine with Republicans as long as someone else’s ox is being gored.

Justice Alito was nominated to the Supreme Court by President G. W. Bush precisely to counter the trend toward “activist judges” put in place by his predecessors (could he have meant to include his father?). Here we have Justice Alito, joined by other latter day judicial activists Chief Justice Roberts and Justice Scalia, dissenting because the rest of the Supreme Court refused to engage in the worst form of activism. They sought to “read into” (meaning rewrite) the law authorizing the Food & Drug Administration a provision that said any warning approved by the FDA preempted, or prevented, any state court from finding that warning inadequate. There is nothing in the law enacted by Congress that prohibits such lawsuits. Until there was a new majority of “conservative jurists” on the Court, drug companies never thought they had a prayer of making this preemption argument stick.

These three justices, however, sought to do more than rewrite a federal statute. They effectively tried to rewrite the Constitution itself. The Seventh Amendment to the Constitution grants a right of trial by jury in civil cases, and further states that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Nothing in the common law would allow the type of re-examination of the efficacy of the Wyeth warning attempted by Justice Alito. Perhaps we need our judges to focus on more of these Amendments than the Second. As with the Commandments, the Bill of Rights is a decalogue, and all ten are worth preserving.

There is one other point made by Mr. Hermann in his essay, and here is where he departs from exhorting about the way the law should be and gets downright mean. In criticizing a jury’s finding that Ms. Levine was entitled to $7 million in damages for the amputation of her arm (she was a professional musician), Hermann says the following:

“Although it is hard not to feel sympathy for Levine, it is equally hard not to be disturbed by the court’s decision. Levine had already obtained compensation for her injury—her $700,000 malpractice settlement—from her health-care providers. She needed no more from a second lawsuit.”

Excuse me, but who died and made Hermann king? Is he truly making the point that $700,000 is a fair value for the loss of an arm, after two painful surgeries, a lifetime of phantom pain, and the loss of a musical career that included writing and performing classical music for children? Would he deem it a fair exchange if we were to cut off his arm and give him $700,000? I expect he, unlike Ms. Levine, could continue his career in law with only one arm. How does he justify imposing his view of the value of human suffering on others? How can he justify giving the government that power? If the government can second-guess a jury’s decision as Hermann wants the Supreme Court to do, we will soon have the government deciding in advance what a human life is worth. Imagine that – having the value of a human life placed on a chart, like a Blue Book for Used People.

Do you think that is just imaginary? Well, friends, it is not in Texas. In Texas, our legislature has decided exactly what your life is worth, but only if you are killed by a doctor or hospital. In Texas, you are worth $250,000. In almost all medical malpractice cases, you can recover your lost income and medical expenses (subject, of course, to the drastic limitations on malpractice coverage offered by most carriers who cover doctors in Texas). But the value of you – your life, your pain and suffering, the love and guidance you give your children – has been set by our legislature at a quarter million dollars, dead or alive. After attorney’s fees and expenses, you or your heirs may see $100,000 of that.

In Texas, Ms. Levine would have lost twice. She likely would have recovered far less than the $700,000 settlement she received from the hospital, unless her lost income and medical expenses totaled $450,000, and I expect they did not. She would have lost a second time because our legislature has passed a law that creates FDA preemption where the Supreme Court says it does not exist.

Mr. Hermann would undoubtedly love it here in Texas.

Steve Waldman – swaldman@gwlawyers.com

Wyeth Not Such Good News for Texans

On March 4, 2009, the Supreme Court of the United States (SCOTUS, to those “in the know” and Tom Clancy fans) issued a landmark ruling in Wyeth v. Levine. The issue was “Preemption,” the doctrine that (according to Wyeth) mandates that when the federal government (acting through that bastion of patient safety, the Food & Drug Administration) says a product is safe, mere mortals in the state courts are powerless to say otherwise. Drug companies, and many other industries regulated by the federal government, have been asserting the preemption defense for years. The Bush Administration loved preemption, and its lawyers were cheerleaders (and often brief-writers) in support of big industry against individuals maimed by dangerous products.

In a 6-3 decision that pleasantly stunned many of us who represent victims, SCOTUS held that FDA approval of a product’s labeling did not preempt a “failure to warn” claim against Wyeth regarding its anti-nausea drug Phenergan (“Promethazine” to those in the generic world). You could hear the consumer advocates and trial lawyers shout and holler praise at this decision. We finally won one before SCOTUS! Even Clarence Thomas voted for us!

Those of us in Texas, however, could only manage a muted “Hip Hip” but not a “Hooray,” for this decision did nothing to undo a nasty bit of legislation, passed by the Tort Reformers of the Texas Legislature in 2003 (“TROTSK3” to those reading this blog), that enshrined in Texas statutory law the very idea of FDA preemption that SCOTUS just rejected. Section 82.007 of the Civil Practice & Remedies Code (“CPRC” to those in the law biz) creates a “rebuttable presumption” that any warning blessed by the FDA is adequate under Texas law and cannot be the subject of a lawsuit based upon the manufacturer failing to warn a health care provider (doctor or nurse) or a consumer of a danger inherent in the drug. The full text of the section is reprinted below. The CRPC, by the way, is the place where Texas lawmakers write laws that affect lawsuits. In other words, it is a breeding ground for mischief by those folks who have the money to get (I did not say buy) the votes in Austin to advance their political-economic interests. Yes, I’m talking about TROTSK3s. Read the whole CPRC and you will need a large dose of Phenergan.

But, with apologies to the late, great Paul Harvey, we should review the rest of the story.

Wyeth, a big pharmaceutical company that has recently been acquired by Pfizer (the Viagra® folks), manufactured, marketed and sold Phenergan. Many of us have taken Phenergan, and it has probably helped a few of us overcome that sickening feeling we get from anesthesia, a bout of the flu, or reading stock quotes. Phenergan can be administered in a number of ways, including by injection, pill or suppository. When injected, it is commonly injected into an IV line in a manner where it mixes with the saline solution that constantly flows into the vein. The patient receives all the medication, but not in a concentrated dose.

Ms. Levine, who suffered from migraines that often are accompanied by nausea, was treated with Phenergan injected by “IV push,” which means she was given a big shot of Phenergan through her IV line. Phenergan, like many other drugs, can cause a reaction when it is injected directly into a vein, particularly if it is injected too quickly. Another risk of IV push administration is that the nurse will miss the vein and hit an artery, which is even more dangerous. This is what happened to Ms. Levine. She suffered a severe reaction to the Phenergan, developed gangrene and had her forearm amputated. She sued Wyeth in Vermont state court. Wyeth claimed a “preemption” defense, and neither the jury, the trial court, nor the Vermont Supreme Court agreed Wyeth should get away with failing to properly warn health care providers of the dangers of IV-push administration of Phenergan.

Wyeth appealed to SCOTUS, and a great deal of money (not just in this case) was riding on the expectation that the August Justices on SCOTUS would toss Ms. Levine and her case out on preemption grounds. SCOTUS had recently decided a different preemption case in favor of a medical device manufacturer. One can just imagine the cases of champagne chilled and ready to serve at Wyeth – or shall I say Pfizer – headquarters.

When the decision in favor of Ms. Levine was announced, the legal world stopped rotating on its axis (I did not say “of evil”). This was the equivalent of Casey hitting the home run instead of striking out. There was a brief moment of silence and then a huge upwelling of cheers from the American Association for Justice (www.justice.org), and other pro-consumer and victims’ rights organizations. At the same time, Forbes, the Wall Street Journal and other folks who only like lawyers when they need one (and when they need one, they don’t want any silly little laws interfering with their right to hire counsel), began wringing their hands. As if there were not enough other issues in the world for them to wring their hands over.

Truthfully, CPRC §82.007 might not have prevented Ms. Levine from winning a lawsuit in Texas. Her lawyers may have been able to overcome the rebuttable presumption by showing that Wyeth hid evidence or misrepresented the results of its research to the FDA. Drug companies are legendary for their secrecy and the extreme measures they take to lock down their research. One of their big, nasty secrets – that they have had numerous doctors on their payroll for promoting their drugs and doing “unbiased research” into the effects of their products – is presently being unraveled. Perhaps Ms. Levine’s lawyers were good enough to dig behind the veil of secrecy and uncover some gem of hidden evidence or misrepresentation and show that the FDA’s approval was based upon “lies, damn lies and statistics.”

From where I sit, Ms. Levine was a very unfortunate woman. She has migraine headaches, an unfortunate condition that is difficult to treat. She needed medicine, and she unfortunately received Phenergan. Her nurse injected the Phenergan into her IV line, and instead of allowing it to mix with the saline solution, she unfortunately used the “IV push” method. Ms. Levine suffered an unfortunate reaction that led to gangrene and the tragically unfortunate amputation of her forearm.

About the only thing that happened to Ms. Levine that was not unfortunate is that she did not live in Texas.

Steve Waldman – swaldman@gwlawyers.com

CPRC § 82.007. Medicines

(a) In a products liability action alleging that an injury was caused by a failure to provide adequate warnings or information with regard to a pharmaceutical product, there is a rebuttable presumption that the defendant or defendants, including a health care provider, manufacturer, distributor, and prescriber, are not liable with respect to the allegations involving failure to provide adequate warnings or information if:

(1) the warnings or information that accompanied the product in its distribution were those approved by the United States Food and Drug Administration for a product approved under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), as amended, or Section 351, Public Health Service Act (42 U.S.C. Section 262), as amended; or

(2) the warnings provided were those stated in monographs developed by the United States Food and Drug Administration for pharmaceutical products that may be distributed without an approved new drug application.

(b) The claimant may rebut the presumption in Subsection (a) as to each defendant by establishing that:

(1) the defendant, before or after pre-market approval or licensing of the product, withheld from or misrepresented to the United States Food and Drug Administration required information that was material and relevant to the performance of the product and was causally related to the claimant’s injury;

(2) the pharmaceutical product was sold or prescribed in the United States by the defendant after the effective date of an order of the United States Food and Drug Administration to remove the product from the market or to withdraw its approval of the product;

(3) (A) the defendant recommended, promoted, or advertised the pharmaceutical product for an indication not approved by the United States Food and Drug Administration;

(B) the product was used as recommended, promoted, or advertised; and

(C) the claimant’s injury was causally related to the recommended, promoted, or advertised use of the product;

(4) (A) the defendant prescribed the pharmaceutical product for an indication not approved by the United States Food and Drug Administration;

(B) the product was used as prescribed; and

(C) the claimant’s injury was causally related to the prescribed use of the product; or

(5) the defendant, before or after pre-market approval or licensing of the product, engaged in conduct that would constitute a violation of 18 U.S.C. Section 201 and that conduct caused the warnings or instructions approved for the product by the United States Food and Drug Administration to be inadequate.

Just Who Is My Car Insurance Protecting – And Is It Enough?

During my 28 years of practicing law, I have represented hundreds of people injured in car accidents. These cases are all different, even though the issues are often the same. Back and neck injuries are often involved. Strains, sprains and ruptured disks are common – bad backs and necks are responsible for more lost time from work than anything other than the common cold (and new research on the rhinovirus may result in the cold becoming less common). Productive people become “patients,” at the mercy of doctors, hospitals and therapists (Oh my!). If they are fortunate and have health insurance, they must navigate the confusing and often impossible world of deductibles, co-pays and EOBs (Explanations of Benefits). Approximately half of all personal bankruptcies are due to uninsured medical expenses. People who cannot work can quickly become destitute. On the medical side, my clients often face conditions that do not respond to “conservative” (i.e. nonsurgical) treatment, and in some cases, surgery is either not offered or too frightening to consider. My clients stress out over all these issues, and it affects their peace of mind and their relationships with their families.

So what makes these cases all different? The clients. Plain and simply, they are all individuals. Like fingerprints and snowflakes, no two clients are alike. In a world that classifies, stratifies and tries to dehumanize people by making them “claimants,” “plaintiffs” and “covered persons,” we lawyers are challenged to remember that these folks are unique. When they get out of bed and hurt, they are not part of any group, classification or file. Pain and uncertainty make people lonely, even when surrounded by loving family. They often turn to us for help beyond our abilities. Many of us have heard, “I would trade anything to go back and not be hurt.” Until time travel is a reality, our role is to help our clients pick up the pieces and move forward.

So that does all this have to do with car insurance?

Here is how: I can help you avoid a future travesty built upon a tragedy by helping you review your car insurance policy. This may sound off topic, but I see what happens when people are underinsured, as most of you are. If someone you love is critically and permanently injured in a car accident, it is likely there will not be sufficient insurance to cover his or her losses. The usual result is a claim that only recovers a fraction of the person’s economic losses. The news that there is not enough insurance to pay for the harm my client has suffered, and will suffer in the future, is difficult to deliver, and even more tragic to receive.

This blog will address the types of car insurance people can purchase in Texas, and what that insurance will do for them in the event of a car accident. It will not prevent anyone from being involved in a car accident, suffering physical injuries or losing a job. However, this advice may keep you from losing your savings, and your mind, by informing you how to properly and adequately insure yourself.

The summary below is a bit dry; it is difficult to be witty when talking about insurance. However, it is important, and it can help you.  Remember – all the following statements relate to TEXAS law and insurance coverage available in Texas.  Other states’ laws, and the coverage available in those states, may vary significantly.

First, understand that insurance is not for the good times. When things are going well, insurance is just a line item in the family budget that costs too much and provides no benefit. The term “insurance” has become generalized to mean anything that protects you from the unknown, meaning bad things that have not happened, at least not yet. We pack an extra shirt when traveling, as insurance in case we spill ketchup on ourselves. We leave a set of house keys with a friend, in case we lock ourselves out or the alarm company calls. Extra batteries, bags of ice in the freezer, candles, flashlights – all are insurance for the next hurricane.

Car insurance is required by law. Currently, you must have minimum bodily injury liability insurance limits of $25,000 per person, and $50,000 per accident, along with property damage liability limits of $25,000 per accident (that minimum went up effective for policies taken out or renewed after April 1, 2008, so you may still have slightly lower limits). Do you know what all that means? Do you know about the different forms of insurance coverage that are available to you, and the protection they provide if bad things actually happen?

Well, go no further. The answers all lie within this blog. Print it and paste it on your refrigerator. Forward it to your friends. What I am about to tell you can save you a pound of heartache at an ounce of cost.

A. LIABILITY COVERAGE: When someone makes a claim against you, alleging your negligence caused an accident, your liability coverage comes to your rescue up to the limits of the policy. Your “Good Neighbor” will pay claims from their “Good Hands” to the person you injured, up to the amount of your limits. Limits? What do I mean limits? Those numbers on your policy represent the maximum amount your insurer can be required to pay in the event you injure (or cause the death of) another person, or damage property. So, if you have the current minimum limits, you have bodily injury limits of $25,000 per person and $50,000 per accident, and property damage limits of $25,000.

That means no single person may recover more than $25,000 from your insurer for their injuries. If more than one person is injured due to your fault, all the people you injure can recover no more than $50,000 from your insurer, and no single person can recover more than $25,000 from your insurer. The total amount of property damage that can be recovered from your insurer is $25,000.

The key words are “from your insurer.” You can be sued for more than your coverage. If you injure three people, and each of them has $50,000 in damages, they can obtain a judgment against you that will far exceed your limits of coverage. What happens with the amount in excess of your limits? That is for you to pay, if you can. The same is true for property damage – you can run into a Mercedes and cause $75,000 in property damage. Your insurer, however, will only get stuck with $25,000; you get stuck with the rest. If you are sued, your insurer will be “on your side,” and they should provide an attorney to defend you. However, the insurance company will not be responsible for one penny more than your limits.

ADVICE: If you have assets worth protecting, you should consider raising your liability limits. See the discussion of uninsured motorist coverage below for an even more important reason to raise your liability limits.

B. PERSONAL INJURY PROTECTION/MEDICAL PAYMENTS COVERAGE: These are two forms of “no fault” insurance that pay you in the event you are injured in your vehicle, regardless of whether the injury was someone else’s fault. The minimum amount of Personal Injury Protection (PIP) coverage is $2,500. PIP will pay your medical expenses (at 100%) and lost earnings (at 80%), up to your limits of coverage. Medical payments coverage differs in two ways. First, it does not cover lost earnings. Second, if you recover your medical expenses from a third party (another driver), your “medical payments” insurer has a right to be paid back, but your “PIP insurer” does not.

With $2,500 in PIP coverage, you provide protection for yourself and your family members. Each occupant of your vehicle who is injured, and each family member (who resides in your home) injured while occupying someone else’s vehicle, has $2,500 in PIP coverage. PIP is the best value in your insurance coverage. However, in today’s world of high health insurance deductibles and co-pays, $2,500 is often too little to insulate you from a substantial cash outlay. Raising your PIP rates is a low-cost solution.

ADVICE: Raise your PIP limits to $5,000 or $10,000.

C. UNINSURED/UNDERINSURED MOTORIST COVERAGE: This is another coverage that affects you and your family. Uninsured motorist (UIM) coverage is usually purchased in the same manner as liability coverage (a minimum of $25,000 per person, $50,000 per accident, and $25,000 in property damage). If you suffer an injury due to the negligence of another person who has no insurance, or too little insurance to cover your damages, your UIM coverage steps in and pays you. Again, you are only covered up to the limits of your coverage. So, if you have $100,000 worth of damages, and your injuries are caused by a person with $25,000 in liability coverage, you have a $75,000 shortfall. If your UIM limits are $25,000, that is not enough. You will have an uninsured loss of $50,000. In order to prevent that shortfall, you should raise your UIM rates.

But, there is a catch. Your insurance company cannot be required to offer UIM coverage limits in excess of your liability limits. So, to purchase $100,000 in UIM coverage, you must also purchase $100,000 in liability coverage. Here is where they get you coming and going. With the cost of medical care and the number of drivers with minimum coverage or no insurance at all, you need as much UIM coverage as you can afford. However, (by example), to get $100,000 in UIM coverage, you must purchase $100,000 in liability coverage.

ADVICE: Buy as much UIM (and liability) insurance as you can reasonably afford.

When you price insurance coverage, you will find that liability insurance is much more expensive than PIP or UIM coverage. However, remember that your first goal of obtaining insurance coverage is to protect you and your family. PIP and UIM coverages protect you. Liability coverage only protects your assets. As much as we all want to cover our assets, we need to think about protecting ourselves and our family members.

Finally, let me offer a word about the independent insurance agent. For many years, I have worked with my good friends at the GEM Agencies in Houston. Ed Schreiber and his staff have worked very hard to find me the best coverage from the best companies at the best price. If you buy insurance from a company agent (Allstate, State Farm, etc.), you may receive outstanding service and excellent coverage. However, you will only have the opportunity to buy that company’s products. An independent agent has access to more companies, and with an independent agent like Ed, even if you pay a little more, you have someone whose good hands are always on your side, regardless of whether or not they are your neighbors. And Ed did not ask for this plug, although I ran it by him to make sure he did not mind (he didn’t!).

One last note about insurers and agents. As with all other professionals, not all independent agents are alike. And there are some automobile insurance companies that are downright awful to deal with if you have a claim. Some agents have only one goal in mind – getting your business by offering you the cheapest coverage available. Remember that you get what you pay for. Cheap coverage is often insufficient coverage with a lousy insurance company. Check out your agent and the insurance company he or she is trying to sell you. The Texas Department of Insurance (http://www.tdi.state.tx.us/) has resources that will help you learn more about an insurance company. There are complaint databases, and a great deal of information regarding any agent or insurance company you are considering. The Department of Insurance also has a staff whose job includes helping you decipher the information available on the website. Don’t be afraid to call or email them.

Steve Waldman – swaldman@gwlawyers.com

My Coat and Other Losses

Recently, I discovered I had lost a sport coat. It was a greenish-brown corduroy jacket that was warm and went well with jeans. Apparently, I left this jacket on the back of a restaurant chair, or at a party. I looked everywhere, called the cleaners, contacted the store (to see if I had forgotten that I had taken it in for alterations) and even dropped a few hints to friends and family. Nothing. I hated losing that coat. In part, I regretted the loss of the garment; we are still going through the “cool snap” others in points north refer to as “winter.” More significantly, I hate losing anything – a silver pen my wife gave me for our anniversary; my glasses; even a piece of paper. One of the reasons I am so obsessive-compulsive (it’s just a character trait, not a disorder, or so I am told) is because losing anything just aggravates me to no end.

Perhaps it is appropriate that I am a trial lawyer representing people in personal injury and wrongful death cases. You could say I am in the loss business. Every day, I pick up files and deal with other people’s losses. My clients have lost the ability to work, or the use of an arm or leg, or in the worst cases, the ability to kiss their child good-night. When I stop to think of the sadness my clients experience on a daily basis, the constant reminders they have of what they once had and will never have again, it is breathtaking. The responsibility I feel is so palpable, it is difficult to explain. I am frequently reminded that the bumps in the road of my daily life, like losing a sport coat, are tiny and insignificant.

Part of my job is helping people cope with their loss. I am not a therapist, but the degree says “Doctor of Jurisprudence,” and the license calls me and “Attorney and Counselor at Law.” My clients call me to ask where they should go for medical care and what treatments they should have. They talk to me of the troubles they are having with their finances, their families and their self-image. They vent. They emote. They let me know how much they are counting on me to do something to make things better.

My clients are smart people. They know I cannot fix their real problem. I seek an economic recovery for them which, in our socio-legal system, is all that can be done. If I could undo the harm, go back in time and make the accident never happen, or even guarantee the defendant would never hurt anyone again, I would. Those options are not available. All we can do in the tort law is to compensate people for their loss. People in politics like to say you cannot cure a problem by “throwing money at it.” The truth is that, for most people who have been wronged, there is nothing else we can throw at them. Every single one of my clients – over 28 years – would trade every penny of their settlement for the ability to undo the harm they have suffered.

So, why does my work day involve more than just preparing the cases for trial, negotiating settlements and the other tasks of prosecuting a claim? Why do I take these calls, and more importantly, why do these people call me for advice, or as a sounding-board?

My clients call me to share their suffering because I have agreed to take on their cause. I am in it with them, fighting for the justice that is available under the law. I try to convey to them how much I care, and apparently that message is getting through, because they keep calling. As little as my legal education prepared me to be a doctor or a counselor, I do the best I can to share the limited knowledge and insight I have gained from my personal and professional experience. It is often not enough, and I am constantly reminding my clients of what I am not (a doctor or a psychologist). I am regularly made aware of my shortcomings, and the cracks in our medical treatment system through which people’s emotional needs and mental health issues fall almost without notice.

So, when I lose a coat, my work life suggests I rejoice in all of the truly important things I have not lost. Perspective is so valuable. All of us should be thankful of the blessings in our lives. If we are not dealing with an overwhelming loss, we should reach out to friends and family members who are. We should be there for each other. And we should realize that losing something as small and insignificant as a sport coat – even a really nice, comfortable sport coat that I really would like to find – is just not that big a deal.

Steve Waldman – swaldman@gwlawyers.com

And Now, A Word From the Children

My nephew, Marshall, participated in a program with the Tchefuncte Middle School called K.I.S.S. (Kids Interacting with Seniors Successfully).  Their group is now in the finals of the State Farm Service Learning Solutions Showcase.  These fifth grade children began regularly visiting the residents at the Heritage Manor Nursing Home in Mandeville, Louisiana.  Each child was assigned a “buddy,” and the positive impact upon the lives of the children and the seniors is so gratifying, I hope you will all take a moment and watch the video:

http://www.youtube.com/watch?v=2T8I4B-vPoM&feature=PlayList&p=76AFEACF064C53E1&index=4

Of course, we want you to vote for Marshall’s school too!

In the hustle and bustle of our lives, we often forget how important human contact, compassion and friendship are to those whose lives are not going so well. These kids learned that people with infirmities need love just as much as the rest of us, and they delivered.

As much as like to write long blogs, I think I will just let the kids speak for me.

Steve Waldman – swaldman@gwlawyers.com

When Is an Illness an Illness?

My newspaper often barks at me. Like my dog, only silently. Something I read will reach out and grab my attention, whether I want it to or not.

The latest cacophony concerned fibromyalgia. Apparently, this “murky disease” is getting a lot of run of late, primarily because it is generating a lot of profits for the drug industry. Here is a story from the AP:

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WASHINGTON (AP) — Two drugmakers spent hundreds of millions of dollars last year to raise awareness of a murky illness, helping boost sales of pills recently approved as treatments and drowning out unresolved questions — including whether it’s a real disease at all.

Key components of the industry-funded buzz over the pain-and-fatigue ailment fibromyalgia are grants — more than $6 million donated by drugmakers Eli Lilly and Pfizer in the first three quarters of 2008 — to nonprofit groups for medical conferences and educational campaigns, an Associated Press analysis found.

That’s more than they gave for more accepted ailments such as diabetes and Alzheimer’s. Among grants tied to specific diseases, fibromyalgia ranked third for each company, behind only cancer and AIDS for Pfizer and cancer and depression for Lilly.

Fibromyalgia draws skepticism for several reasons. The cause is unknown. There are no tests to confirm a diagnosis. Many patients also fit the criteria for chronic fatigue syndrome and other pain ailments.

Experts don’t doubt the patients are in pain. They differ on what to call it and how to treat it.

Many doctors and patients say the drugmakers are educating the medical establishment about a misunderstood illness, much as they did with depression in the 1980s. Those with fibromyalgia have often had to fight perceptions that they are hypochondriacs, or even faking their pain.

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The article features a photograph of Fredrick Wolfe, Director of the National Data Bank for Rheumatic Diseases (whatever that is) and “one of the nation’s most prominent critics of fibromyalgia.” The “rest of the story” is available at the following link:

http://www.chicagotribune.com/business/sns-ap-fibromyalgia-drug-companies,0,535128.story.

Take a look at the AP article, and you will find a wealth of information about how disease and treatment are marketed to the general public in a Fox-News “you decide” format. You can discern the following from this article:

Some people (critics of fibromyalgia) regard the condition as “murky,” meaning shrouded in mystery and therefore unproven. In other words, bogus.

Two drugmakers, Eli Lilly (the Cialis folks) and Pfizer (the Viagra folks) are making so much money selling drugs to people with fibromyalgia, they are “donating” over $6,000,000.00 to “nonprofit groups for medical conferences and educational campaigns.” That is in addition to their advertising budget. Big bucks are at stake, which in the world of Global Corporate Healthcare, is much more important than actually helping people.

Whenever you see a comment such as, “Experts don’t doubt the patients are in pain,” followed by “Those with fibromyalgia have often had to fight perceptions that they are hypochondriacs, or even faking their pain,” rest assured there are plenty of “experts” (i.e. hired medical guns) calling people who claim to have fibromyalgia a bunch of crazy fakers. I was unable to get to the bottom of where Dr. Fredrick Wolfe and his National Data Bank get their money, but I think the people who have a vested interest in opposing funding for fibromyalgia research or, more importantly, compensation or coverage for its victims, is the leader in the clubhouse.

All of this is complicated by these apparent facts: “The cause is unknown. There are no tests to confirm a diagnosis. Many patients also fit the criteria for chronic fatigue syndrome and other pain ailments.” This means the doctors do not know what they are doing with this condition. For all their research, big hospitals and Wednesday golf games, they might as well be bleeding these people.

Several years ago, I attended a conference on fibromyalgia. A doctor friend of mine, Dr. Richard Rubin, was speaking. The conference was attended by a hundred or so people, mostly women, all of whom were desperate. At that time, no drug company had figured out these people had money and were willing to pay for anything that might make them feel better. Without Cialis and Viagra money supporting their plight, these people were on their own, fighting against the insurance industry. My bet is that those “critics of fibromyalgia” were insurance company goons, hired to prove that fibromyalgia did not exist, was a figment of the imaginations of deranged and tortured souls who may be experiencing pain, but whose pain was due to being slighted by their mothers. Why else would anyone be a critic of a disease?

I have seen this in my practice. I have represented people with fibromyalgia and reflex sympathetic dystrophy (RSD). RSD got such a bad rap, it had to change its name to Complex Regional Pain Disorder. This is like an illness going into the Witness Protection Program. Why would anyone force an illness to go underground, change its name or fight for recognition?

The answer, as usual, is to follow the money.

People with illnesses often want some form of compensation. They may want to prove their condition was caused or aggravated by a physical trauma in a lawsuit. Others may seek disability payments from Social Security or an insurance policy. However, many people just want to feel better.

In one of my RSD cases, I had an “expert” designated against me, and his sole role in the case was to testify that RSD did not exist. It was not an “entity.” He had a plethora of other possible explanations for why people might think they have RSD; he could not be sure about an of those. What he was absolutely certain of, however, was that RSD was not real. This guy was making a pretty good living going around the country debunking RSD. He was being paid to do so by insurance companies defending lawsuits like mine, where people lost the use of one or more extremities (arms or legs) because of trauma that disrupted their sympathetic nervous system. My client’s arm was a swollen cold, lifeless lump of flesh that caused terrible pain, was hypersensitive to heat or cold and was generally useless for anything other than making her life miserable. She was not upset at her mother. She was injured. This “expert,” with all of his degrees, was selling his opinion that, whatever she had, it was not RSD. He knew she had the burden of proof in her case, and unless she could explain what she had, she could not win. Just by saying, “I don’t know,” he argued against her.

Fortunately for her, no one believed this “expert,” not even the defendants in the case, who paid a generous settlement rather than have to present this man’s opinions in court.

Our courts have been busy with fibromyalgia. The United States Court of Appeals for the Fifth Circuit (one step below the Supreme Court of the United States) ruled in Vargas v. Lee, 317 F3d 498 (2003) that fibromyalgia is not caused by trauma. That may seem odd that a court would pass judgment on a medical issue, but there it was, in black and white. Actually, what the court said was that medical proof was so absent on the causal relationship between trauma and fibromyalgia, there could be no proof of cause and effect as a matter of law. When a court shuts you down like that, it is time to pack up your briefcase and go home.

The real news behind today’s story on fibromyalgia is that two forces with huge resources are apparently taking each other on. This is like watching Darth Vader and his goons taking on the Klingon Empire in a WWF-style grudge match. It not for the victims caught in the middle of this fight, I might actually enjoy the show.

So, how does this concern you? What can a single citizen do about all this mess? Truthfully, not a whole lot.

However, there are three things you can do, and they may make a difference.

First, do not vote for candidates who oppose the rights of consumers and victims of corporate malfeasance. Tort reform is a myth brought to you by the same folks who want you to believe people with fibromyalgia are really just crazy. These candidates, by the way, pass the laws that make it impossible for victims to obtain justice, and they appoint judges who make decisions such as the one in Vargas v. Lee.

Second, let your representatives in the state legislature and Congress know you are sick and tired of them putting the interests of big companies ahead of what is right and fair for consumers, patients and victims of corporate malfeasance. Perhaps if we continue to send this message to our politicians, they will get the message.

Third, when you get that jury duty notice, go and stand up for the little guy. You, by the way, are a little guy, and if it is ever your turn to stand in a courtroom and ask a group of jurors to find in your favor in a case against the insurance or drug industry, you will realize just how little of a guy you are.

As for the doctors, the best they can do is try to find something that works for their patients. If that is a medication, wonderful. If it is acupuncture, massage or psychotherapy, they should tell their patients they do not know how to heal them, but here are some suggestions. Don’t tell your patient she or he is crazy, or does not have a real illness. Confess your ignorance, tell them the little you know and then wish them well.

Steve Waldman – swaldman@gwlawyers.com

How Malpractice “Tort Reform” Affected You

A recent Dallas Business Journal article (2/4) reports, “A house bill that passed the Texas Legislature in 2003 is now receiving credit for getting emergency physicians back into the ER” and “the Texas College of Emergency Physicians held a press conference in Austin on Tuesday, thanking lawmakers for the passage of House Bill 4 six years ago — a move they credit for establishing the tort reforms needed to revamp medical malpractice suits in a fashion that would encourage more physicians to practice emergency medicine in the state.”

Before you shout and holler praise for the good work of the legislature, understand what the new law means to you and your family members, if they are treated in an emergency room.

The 2003 changes to medical malpractice law severely restricted damages recoverable in medical malpractice cases. With the exception of lost wages and medical expenses, the recovery is capped at $250,000 in most cases. That may sound like a lot of meny, but that number was set low enough to discourage lawyers from taking these cases. Most seasoned lawyers will not even look at a medical malpractice case unless there is a death or permanent disability of a wage earner, or a catastrophic injury resulting in enormous future medical care costs. Most cases involving injuries to or deaths of the elderly, children, stay-at-home moms, or injuries that do not diminish the ability to work are falling by the wayside. When you spend up to $50,000 or more developing a case, and then charge a client a fee for your time and effort, even with a victory, no one is happy. Since the fee and expenses are contingent, if the case is lost, the lawyer eats the expenses and gets nothing for his time.

Medical malpractice cases have a high failure rate. The 2003 laws impose huge procedural hoops lawyers must jump through to get a case to a jury. Juries often exonerate malpractice defendants who are clearly at fault, often because they feel doctors should not be held civilly liable unless there was an evil intent. That is not the law, but juries have been known to take the law into their own hands. Numerous counties in Texas have never had a verdict in favor of a malpractice plaintiff. Ever. And the record of our Supreme Court of Texas is dismal in reversing jury verdicts for patients.

The ER provision of the 2003 laws gives doctors, nurses and others who provide emergency care in a hospital an immunity for their negligence. To win an ER case, you must prove the doctor, nurse or other provider is guilty of “willful and wonton negligence.” This is a “gross negligence” standard. Most lawyers who look at these cases have thrown up their hands and concluded that, absent the most egregious of circumstances, emergency care providers get a freebie. When you or a loved one goes into an ER, you are truly on your own.

That may sound great for hospitals trying to recruit ER doctors. However, this law does nothing to protect patients or foster higher standards in emergency care.

There were other solutions available to resolve the “malpractice crisis” the doctors, hospitals and insurance industry convinced many Texans existed. Among them would have been requiring greater quality control in hospitals; increasing enforcement of medical, nursing and hospital standards; and requiring every practitioner have adequate liability insurance coverage, offered at reasonable rates by companies that profit greatly from writing other forms of casualty insurance. Finally, if a cap on damages was deemed necessary, that cap should have been set high enough to allow victims to find lawyers to take their cases.

The 2003 changes to medical malpractice law may have enhanced the practice of medicine in Texas (although there are many disagreements on that point). Regardless of whether or not that is true, the price paid by Texans who are consumers of medical services was too extreme, as the bar for winning a lawsuit has been raised too high, and the damages that are recoverable have been set too low.

If you believe some sanity must be restored to medical and hospital negligence law in Texas, start by contacting your state senator and representative. Tell them you want changes made that will protect consumers. If they do not go to bat for those changes, vote for others who will.

Steve Waldman – swaldman@gwlawyers.com

A New Beginning

At this time of renewal and rededication of our nation to its founding principles, we pause and reflect on where we have been and those who have brought us to this moment. Yesterday, we saw an African American sworn in as President of the United States of America. It was a surreal moment for those of us who remember Jim Crow and the ugliness of the civil rights struggle. Having been born into a culture where blacks were looked upon as second class members of society, whose destiny was to serve whites, I stared with amazement as this brilliant, graceful and eloquent man took the oath of office, with his beautiful wife and children looking on. The face of America has changed for the better, and the world is a more hopeful place.

The sweetness of this moment would have been impossible without the ragged history that preceded it. We must acknowledge all that has gone before, and recognize that there can be no redemption without suffering. In their contrasts good outshines evil, joy overcomes sadness, and pride eclipses shame. We have endured much as a people to reach this point, and our path has been uncertain and difficult.  The election of Barack Obama is a triumph of the American spirit and a victory for democracy that extends throughout the land.

President Obama’s inaugural address directed us toward the daunting tasks ahead, and the work and sacrifice we must all accept to fulfill our duty to protect and preserve the American dream. Having established his candidacy with lofty oratory, this President’s speech was a call to action and commitment. We must put away those “childish things” such as petty partisanship. We must understand that we live in an interdependent society and a global economy.

I have no doubt that this man will succeed. I have seen faith and hope written on the faces of so many people, and I pray for our people, our country and our new President. God bless America.

Steve Waldman – swaldman@gwlawyers.com

History Has Been Made…Now Let’s Go to Work!

All Americans witnessed history in the making last night. Some of us were thrilled by the election of Barack Obama as the 44th President of the United States, while others were, to be polite, less than thrilled. Regardless of your political stripe, America broke through barriers of all kinds. This man is not just an African American. He has the middle name Hussein. In post-9/11 America, the second fact may be more meaningful than the first. After all, 9/11arguably shifted the focus of the fears of white America away from the black community toward others, namely Middle Easterners. Barack Obama’s name was virtually his only legacy from his father, who was apparently a non-practicing Muslim.

For those of us who grew up in the segregated South, the election of an African American represents a true revolution. This day was inevitable, but many of us thought we would never see it in our lifetime. The realm of the possible is boundless in America, and this election is dramatic evidence of the greatness of our country and our people.

People will be writing about this day for years to come. Many will be drawn to the task of analyzing and celebrating or bemoaning the Obama win. The vast majority of us, however, are now left with the same country we had on November 3. Our economy is a mess, our foreign policy fragmented, and we are embroiled in two wars. We may have loved or hated the President-Elect’s victory speech, but speeches do not solve problems. It is now time for our new government to roll up its sleeves and get to work.

In the truest spirit of patriotism, Senator McCain offered his support for our new President. This is a familiar loser’s refrain, but in McCain’s case it sounded genuine. Hopefully, his offer will be accepted. Regardless of how far off center his message veered during the campaign, John McCain has demonstrated a willingness to work across the aisle. Personally, I hope he is offered a position in the new administration, such as Secretary of Defense.

The work ahead is not just for our politicians. President-Elect Obama called upon all of us to engage in a new spirit of service and sacrifice. I think he means it. We should expect opportunities to participate in the rebuilding of our economy and the pursuit of a new energy policy. Whether we are asked to turn our thermostats up in summer (or down in winter), drive more fuel-efficient cars, or participate in community activities, we should all be prepared to be called upon. When the call comes, we can have but one response: Yes we can.

Steve Waldman – swaldman@gwlawyers.com