Monthly Archives: March 2008

 

March 28th, 2008

Rounding Up Some Round-ups

Doing a round-up is a great way to get known in your particular niche of the blogosphere. And that lesson is not lost on:

Blawg Review #152 The TechnoLawyer, demonstrating how the blog carnival is an extraordinary form of social networking;

Monash Medical Student, giving the best of the medical blogosphere for the week at Grand Rounds;

Carolyn Elefant, of My Shingle and Law Blog Watch fame , as seen in this Legal Times article: Carolyn Elefant Wants to Be the Voice of Solo Lawyers;

InsuranceYak.com, who hosts insurance issues this week at The Cavalcade of Risk; And, of course…

Brooks Schuelke hosting this week’s Personal Injury Law Round-Up, in one of his best round-ups done to date, chock full of stories and commentary from the week gone by;

And one last thing, related to round-ups only by virtue of my having used running as a theme for a round-up; Running does, in fact, make you high.

 

March 26th, 2008

Punitive Damages: Why America is Different than Europe

In the New York Times, Adam Liptak writes that in Europe punitive damages are not viewed the same way they are here (see: Foreign Courts Wary of U.S. Punitive Damages). The idea of punitive damages “was so offensive to Italian notions of justice that it would not enforce [an] Alabama judgment” in a case Liptak uses to illustrate the point.

In the U.S., of course, punitive damages are a crucial part of our judicial system, where private litigants can punish others for reckless wrongdoing that causes injury. Not so elsewhere, where the idea of punishment and deterrence is strictly a government function. The essence of Liptak’s piece is this:

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors.

Why the difference? I think it’s easy. America was founded from the time of the Revolution on limiting the power of government. The political tension between those that want larger government and those that want smaller is seen to this day, and will likely be seen so long as the republic exists. It is seen every time the issue of taxes is broached, for example, because larger government means more payments to government employees, and the money has to come from somewhere.

While I don’t profess to be a scholar of European governments, I think most would agree that they are significantly more interventionist in the private lives of the people than here. You see that in nations that restrict free speech or grant universal health care, as two examples. Our notions of freedom are not always the same as elsewhere.

Intervention means not only larger government with larger powers. It also means higher taxes to pay for it. So wrongdoing is handled by the government, which the people pay for.

While comparing tax rates is exceptionally difficult because of all the exemptions and complications, not to mention state and local tax issues, I see that the top rate in Italy is 43%. Our top rate is 35%. And Italy isn’t spending bazillions on two wars. A comparison of tax rate changes in the 80s and 90s can be seen in this government report (chart on p. 17). We are clearly at the low end of industrialized nations, despite our significantly higher military expenditures.

So we could, in theory, create criminal penalties to take the place of civil wrongs, and spend much more on criminal prosecutions of those wrongs as they do elsewhere. But we have to pay for that, and money has to come from somewhere if you care about fiscal responsibility.

Or we could let the private sector regulate itself by empowering people to bring the wrongdoers to court themselves, and let the private sector handle the costs. And the public, instead of paying, receives not only the benefits of stopping reckless conduct, but the financial benefits by taxing the punitive damage award.

Now here is the irony in this: Those that want to kill off punitive damages in the U.S. come from the right side of the political spectrum. But in doing so, they are not advocating changes in laws to criminalize civil wrongs and increase taxes to pay for enforcement.

It seems to me that a little ideological consistency is in order, because all I see when arguments pop up for eliminating punitive damages, is hypocrisy.

Your thoughts on the subject are welcome in the comments….

 

March 26th, 2008

California Delays Plan to Track Prescription Drugs

Bad news for prescription drug users out of California. The pharmaceutical industry has once again beaten back attempts at greater consumer safety.

The state had put together a bill to electronically track prescription drugs from the manufacturer all the way to the consumer, to insure that the supply chain was not infiltrated by counterfeit drugs. Every bottle of pills sold to consumers would be tagged. The plan was to go into effect on January 1, 2009, but according to today’s New York Times, the drug companies have been given a two year reprieve. The electronic pedigrees were first supposed to have been in place on January 1, 2007, so this is the second delay that they have won.

Drug manufacturers and wholesalers complained that such safety would cost them money.

But if you think the battle for increased safety is over with the new date in place, you would be wrong. Pfizer is claiming they need another five to seven years, though they have somehow managed to put such practices in place for their high revenue drug Viagra.

And for those looking at the big picture of trying to determine when drugs will finally have documented pedigrees from manufacturer down to consumer, the first legislation on the subject was the Prescription Drug Marketing Act of 1987. That dealt with paper pedigrees and was never put into place.

So the industry has thus far succeeded in delaying for 21 years. And I’m guessing that 21 years from now we still won’t have it. As Stan Goldenberg, a Los Angeles pharmacist and member of the state’s Board of Pharmacy said in today’s Los Angeles Times, “In 2011, they’ll want 2013. In 2013, they’ll want 2015. They’ll keep the ball in the air until something bad happens.”

And when something bad does happen (as it did to Tim Fagan), you can be sure, as sure as the lord made little green apples, that the drug companies will find ways to ask for immunity from the inevitable lawsuits. And they will try to blame “greedy plaintiffs’ lawyers” for the fall out.

For more info:

 

March 25th, 2008

NY Medical Malpractice Task Force and the "Illusion of Inclusion"

New York’s new governor, David Paterson, was sent a joint letter yesterday by several consumer groups over the state’s medical malpractice insurance issues. Contention arose when former Gov. Eliot Spitzer, in response to a 14% malpractice rate hike (see: Why New York Medical Malpractice Insurance Jumped 14%) created a task force under the supervision of Insurance Superintendent Eric Dinallo to come up with solutions. The commission, however, was stacked with more than 20 medical and insurance interests and just three consumer interests.

A press release was issued yesterday from the Center for Justice and Democracy indicating that the groups were “gravely concerned that any recommendations that are the product of such process will not serve the public interest” due to the stacked deck.

The letter itself details a failure by the task force to turn over information to consumer advocates and that a “major reform proposal” will be unveiled shortly despite the fact there have been no meetings for months. Consumer groups, it appears, are only superficially a part of the task force. The groups claim they are “mere window dressing, to be used as stage props to create the illusion of inclusion.”

Given Spitzer’s pro-physician bias, the conduct of the task force comes as no surprise (see Eliot’s Mess: The Ramifications for Medical Malpractice “Reform” in New York). Hopefully, Gov. Paterson will deal with issues with an even hand.

The letter was sent by: Center for Justice & Democracy, Center for Medical Consumers and Citizen Action of New York (members of a task force) as well as by the statewide consumer group NYPIRG, medical malpractice victim group PULSE, and CURE-NY, a statewide coalition of 13 public interest groups.

See also: It’s Not Just Wall Street That’s Happy To See Spitzer Go (Mother Jones Blog)