Injury Lawyers Reeling After Texas Supreme Court Decision

The recent Texas Supreme Court decision in Ruttiger has staggered injury lawyers everywhere after holding that plaintiffs cannot sue workers compensation insurers for knowing violations of the Texas Insurance Code or deceptive trade practices.  This dramatic overhaul of Texas law will have far-reaching consequences.

The Ruttiger case involved a plaintiff who was injured at work.  In trial, the carrier admitted that it did not follow its own guidelines by denying the claim when it failed to even contact the employee/plaintiff or plaintiff’s physician.  The jury found that this constituted a knowing refusal to conduct a reasonable investigation and held that the plaintiff was entitled to treble damages under the DTPA and Texas Insurance Code.

On appeal, the Texas Supreme Court disagreed and imposed a ground-breaking new rule that the Texas Labor Code precludes such a suit made under the Insurance Code or DTPA.  As a result, the workers compensation act will be the exclusive remedy, barring even knowing violations of the DTPA or Texas Insurance Code.  It appears that Texas injury lawyers and their clients are now facing yet another obstacle to recovering in the Lone Star State.

Personal injury lawyers and assault

Even though personal injury lawyers are concerned with injury to the body, they are also concerned about injuries to the mind.  One cause of action, called, "assault," involves injury to the plaintiff's mind.

Typically, personal injury lawyers take cases where a person was physically injured.  However, there are also cases in which the lawyer may sue for assault when their client suffered mental injuries.  For instance, say person X throws a baseball at person Y's head, but they don't intend to hit them, just to scare them.  If you think that's permissible, think again.  Person X just committed an assault.

The tort of assault is called a "common law" tort, meaning it's typically a cause of action that is not codified into law, but it is still recognized by most courts.  To prove an assault under the facts above, the personal injury lawyer or personal injury lawyers would have to prove that X intended to cause an imminent apprehension of contact and that Y was put in such imminent apprehension.  Under these facts, it would look like X committed an assault because he injured the mind of Y but putting him in an imminent apprehension of contact.

Keep in mind that assault has a different meaning in civil cases than it does in criminal ones, but it's one of the tools in the personal injury lawyer's toolbox.  It's also one of the many things that can make personal injury law a complicated and tricky matter.

Why Should I Talk to a Personal Injury Lawyer?

We are frequently surprised to find that most people think that unless they have a serious injury, they don’t need to talk to a personal injury lawyer.  To the contrary, an attorney, including one that practices personal injury law, can be a useful and inexpensive source of wisdom and advice.

Attorneys are also counselors.  In fact, the Texas Disciplinary Rules of Professional Conduct section II is titled, “Counselor.”  And Rule 2.01 states that a lawyer shall “render candid advice.”  This advice isn’t merely confined to technical, legal advice.  In fact, comment 3 to the rule states that lawyers are expected to refer to relevant moral and ethical considerations.

This means that lawyers can provide invaluable information for potential clients and actual clients alike.  Just because you don’t have a legal question, that does not mean an attorney can’t help.  Attorneys can provide insight into matters that aren’t often considered to be “legal” in nature, and sometimes an attorney can direct you to the professional you need.

That’s why we encourage the public to call a attorney if they have questions.  In fact, calling a personal injury lawyer may be the most cost-effective move you make because many lawyers provide free initial consultations.  So take advantage of that resource and ask away.  A good attorney is probably more than happy to help.

Dog Bites and Lillian's Law

Have you heard about Lillian’s law?  People who have suffered from dog bites may have legal recourse by means of this intriguing 2007 Texas law.

On November 26, 2005, Lillian Stiles, who was 76 years old, was riding her lawnmower in the front yard when she was viciously mauled to death by a pack of six Pit Bull/Rottweiler dogs.  Although criminal charges were leveled against the dogs’ owner, he was found innocent of criminally negligent homicide.  Outraged by the events, Texas Senator Eliot Shapleigh sponsored H.B. 1355, which imposed strict penalties for owners of violent dogs in Texas.  In memory of Mrs. Stiles, the bill was referred to as, “Lillian’s Law.”

Since then, victims of dog bites have been able to take advantage of the 2007 law.  Specifically, the bill enacted section 822.005 of the Texas Health and Safety Code.  This law punishes owners who, with criminal negligence, fail to secure their dog and the dog makes an unprovoked attack at a location other than the owner’s property.  The punishment is a third degree felony unless the attack results in death, in which case, it is a second degree felony.

So to owners of dangerous dogs, beware: you could face stiff criminal penalties for the attacks of your dog and possibly even find yourself in civil court for  negligence.  And to those who are victims of unprovoked dog attacks, remember Lillian’s law; it may just help you to protect your rights.

Dallas Injury Attorneys Face New Law

After months of debate and controversy, Governor Perry finally signed H.B. 274 into law. This will mean that, beginning September 1, 2011, dallas injury attorneys will see some significant changes.

First, much of the law will not apply to actions brought under the family code.  Some relevant aspects of the new law include:

-Revisions that encourage the use of the settlement provisions of the Civil Practice and Remedies Code, including a change that would allow the recovery of reasonable deposition costs;

-Requirement that the Texas Supreme Court adopt rules that will expedite certain civil actions in which the controversy does not exceed $100,000;

-Requirement that the Texas Supreme Court adopt rules to encourage the dismissal of actions that have no basis in law or fact, and providing for reasonable and necessary attorney’s fees for the party that prevails on a motion to dismiss; and

-Changes to responsible 3rd party designations.

Although the new law is a compromise of good and bad, we believe it is a much better version of the “Loser Pays” law than what was originally proposed.  While Dallas Injury Attorneys will face some difficult legal battles ahead, this may not be the dreaded tort reform we originally feared.

Texas Child Support Update

Effective immediately is a new law that will help countless individuals who wish to legitimately contest their Texas child support obligations.  Specifically, S.B. 785 allows individuals who successfully contest paternity through DNA testing to be relieved of future child support obligations.  You may be shocked to learn that although convicted criminals could be exonerated through DNA testing, putative fathers were, until now, not allowed to escape child support obligations through DNA evidence.  Presumably, this is part of the reason the law passed with widespread support.

Although our office remains committed to personal injury matters, we are also committed to the idea that only adoptive or biological fathers should be saddled with the financial burdens that come with paying Texas child support.  Consequently, we our happy to assist those who wish to challenge these obligations with DNA testing.  We invite anyone with questions or concerns about this issue to call our office for more information.

Texas Lawyer Liability with Tort Reform

We want to thank those of you who commented on our blog earlier.  H.B. 274, which until very recently, contained provisions that would punish a Texas Lawyer who files a pleading that a jury determines to be an “abusive civil action.” Fortunately, the Judiciary & Civil Jurisprudence Committee and the Texas House have removed that provision.  We hope it will not reappear in the Senate, and we remain cautious about some of the other “loser pays” remnants of H.B. 274.

This is a volatile period for H.B. 274, as many changes have been made.  We are working as quickly as possible to address those changes, but naturally, responding to these changes take time.  Currently, some of the core principles of H.B. 274 remain.  In particular, the current bill delegates to the Texas Supreme Court the duty to enact rules to quickly and efficiently resolve civil claims.  The bill also contains a provision that would eliminate implied causes of action unless unambigiously indicated by statue.

Fortunately, however, the portion of the law that would punish a Texas Lawyer for filing an abusive civil action has, for now, been removed.  The Texas Disciplinary Rules of Professional Conduct already deter attorneys from filing frivolous pleadings, so the “abusive civil action” provision was not only harsh but unnecessary.

Although we are relieved, there are no doubt future developments that will occur, and we will act as promptly as possible to cover them as they become available.

Car Accidents Likely on LBJ

North Dallas is likely to see more car accidents on LBJ Freeway, as a 5-year reconstruction project has just begun to expand the already-burdened highway.  The project costs $2.7 billion and is one of the biggest in Dallas history.

Every day, LBJ carries 100,000 more drivers than it was designed to manage.  And each day, 270,000 cars travel the LBJ segment between U.S. 75 and 35-E.  This means more congestion, more waits, and most likely, more auto accidents.

With car crashes likely, Drivers may end up scrambling to find a Dallas attorney.  Grapevine is already undergoing a construction project that is only about half the size of the LBJ reconstruction project.  And even there, Mayor William Tate reports that car accidents have doubled in the last year.

North Dallas drivers should heed the advice of the LBJ project builders: know before you go.  It’s a good idea to stay informed about the changes that will hit LBJ over the next 5 years to avoid an accident.

One Year Later

It's hard to believe it has been a whole year since the BP oil spill in the Gulf, possibly the worst environmental disaster this nation has experienced.  As a result of the blowout, 11 employees died, and the coastal and gulf ecosystems were irreversibly devastated as 206 million gallons of oil emptied into the Gulf; that's 19 times more than the infamous Exxon Valdez spill.

And in the year since that tragic disaster, the blame game has already started.  BP has filed suit in federal court against Cameron International, alleging negligent design of the blowout preventer.  On Wednesday, BP sued cement contractor Halliburton for fraud and negligence.  BP has also sued Transocean, the owner of the rig, for over $40 billion in damages.  You can read more about the legal battles here.

Unfortunately, the blame game does not help the rig workers' families and business owners who have had to close shop in the aftermath.  As NPR reported earlier this year, BP has been slow in its efforts to compensate families with the $20 billion compensation fund that was created.  Only $3.5 billion in compensation has been provided, and many families and businesses are struggling while BP adjusters decide whether and how much to pay out claimants.

NPR covered the story of two sisters who saw their profitable beach-wedding business go under due to the BP spill.  After closing their doors, the sisters had a $240,000 loss on their hands.  After six weeks waiting on BP, the sisters received a check for $7,700.  No explanation was given for that figure.

This tragic story illustrates some of the problems that result by giving negligent corporations the power to create and oversee compensation plans like the one BP is still administering.  We have already discussed House Bill 2031, which would encourage other BP-like voluntary compensation plans.  The bill has now passed committee.  Hopefully the lessons of BP will teach our Texas congressmen and congresswomen that compensation plans are not the answer.

The Results Are In

Many politicians are looking to Texas as a rolemodel, particularly in terms of the blessings that resulted from our 2003 wave of medical malpractice reform.  According to an article here, this view is flawed.  There is no disputing that soaring medical costs are a problem that frequently overburden families throughout the country.  Nevertheless, Texas is a lesson in how malpractice reform is not always the answer.

For instance, Alex Winslow of Texas Watch, a consumer rights advocate, states that health care costs have soared faster in Texas than anywhere else in the county.  As a result, Texas has the lowest number of insured individuals in the country; about one in four Texans has health insurance.  Many news sources have reported on the exodus of physicians swarming into Texas.  While there is some truth to this, The Center for Public Integrity reports that Texas ranks 41st in the number of doctors per capita, indicating the doctors are still badly needed in the Lone Star State.

Many will point out, as several news sources have long indicated, that Doctors have seen a 25% drop in medical liability insurance rates.  Nevertheless, the fact remains that ordinary consumers are finding it more difficult to find insurance and more expensive to pay their medical bills.

Consequently, Texas is not the idyllic example of the advantages of medical malpractice reform.  There are some benefits, but there are significant drawbacks as well.  You can read The Center for Public Integrity article here.

Voluntary Compensation Plans in Texas

As you may know, several Texas congressmen and congresswomen have proposed bills in an effort to promote more tort reform.  A couple of these bills involve "voluntary compensation plans."  In a nutshell, these plans would be offered by individuals and corporations that, for one reason or another, are concerned they could be liable in court.  Consequently, they would create a voluntary compensation plan to allow those who were injured by the plan creators to receive some sort of financial compensation under the plan rather than duke it out in court.  If you are confused, consider the Deepwater Horizon oil spill last year.  As a result of that spill, a compensation plan was created to aid victims of the Gulf Coast disaster.  Similarly, Texas House Bill 2031 and Senate Bill 21 would effectively encourage those who are injured to settle instead of resorting to litigation.

From our perspective, there is nothing inherently wrong with the idea.  But there are some significant problems with the way these bills are laid out.  First, they are fuzzy on what kind of compensation these negligent corporations would have to offer.  Advocates of these plans would say that the plan inherently has to be reasonable because there are certain cost-shifting mechanisms involved in the legislation.  However, these mechanisms appear to disproportionately benefit the plan creators.  And in cases where the plan offers a grossly inadequate amount, claimants could be forced to wait before litigation could ensue if the defendant elects to abate or suspend the lawsuit.

We are also concerned that the bills would discourage victims from seeking legal advice from qualified attorneys.  Under the proposed law, attorneys who represent injured individuals would have to inform their clients that, "if the claimant or potential claimant seeks compensation from the plan without the assistance of the attorney, the claimant or potential claimant will not owe the attorney any fee for services in connection with that claim for compensation." Our concern here is that needy clients who are desperate for immediate results would be encouraged to forgo their legal rights and settle for less without the assistance of an attorney.

We think HB 2031 and SB 21 make for bad law.  But we encourage Texans to come to their own decisions and read the bills for themselves.  You can access the text of HB 2031 here and SB 21 here.

Loser Pays?

The political machine "Texans for Lawsuit Reform" is working hard to get Texas Republicans to line up and support tort reform, particularly, House Bill 274 and Senate Bill 13.  Rick Perry, Representative Brandon Creighton, and Senator Joan Huffman are getting out the word that "Loser Pays" is a winner.  What is "Loser Pays"?  Simple: those who lose in court are required to pay the other party's attorney fees, travel expenses, court costs, and other various fees.

What they aren't telling you is this: the legislation doesn't apply to "losers," it applies to defendants.  Period.  That means that plaintiffs will toss in the cards because they know they have even more to lose in this plaintiff-unfriendly state.

The loser bandwagon claims that tort abuse (personal injury claims, for instance) is a big problem in Texas.  That's wrong.  Throughout the country, and in Texas, tort claims have steadily decreased while all other causes of action have remained the same or risen.  The National Center for State Courts, a nonpartisan collective of judicial resources, have concluded that from 1997 to 2006, tort claims have plummeted 21%.  This is despite an overall increases in litigation of 8% across the country.  In short, tort claims are the only area that have continually fallen, including medical malpractice (8% drop), products liability (4% drop), motor vehicle accidents (23% drop), etc.  The report can be found here.

But wait, doesn't that mean that the frivolous claims are disappearing, and tort reform is weeding out the bad cases?  Apparently not.  Take medical malpractice.  According to the Texas Medical Board, despite medical malpractice reforms and the documented decrease in medical malpractice cases, administrative medical malpractice investigations have skyrocketed at a 61% increase through 2009.  This suggests that injured patients are being told by Texas attorneys they can't win, and so their only means of recourse is to file grievances with the medical board.  That is a sad state of affairs.

The loser bandwagon also doesn't want to mention one final thing.  All of these advocates for the "Loser Pays" system received generous paychecks written by Texans for Lawsuit Reform.  Brandon Creighton received $10,000 from TLR for his 2010 campaign.  So did Senator Huffman and Senator Deuell.  Finally, Rick Perry, who championed the benefits of "Loser Pays" last February received $158,025 from TLR in 2010.

This is only a component of the tort reform initiative underway.  We will report more on the other aspects of H.B. 274, S.B. 21, S.B. 13, and S.B. 1856.

So That Explains It

We've recently been covering the tort reform developments in the Texas Congress.  It looks like the big player again is "Texans for Lawsuit Reform" (TLR).  For those who don't know, TLR claims to be comprised of "small business owners, homemakers, and community volunteers."  Truth be told, TLR is one of the most affluent political action committees in Texas.  In the 2000 election cycle, TLR spent $1.4 million to pass tort reform. Now they're back, and they have spent over $5 million from January '09 to September 2010.  This likely explains some of the recent tort reform efforts that are underway. 

These days, TLR has been launching an all-out assault on injured plaintiffs.  If you still don't believe it, believe this: just last October, the right-leaning Dallas Morning News reported that TLR contributed almost $108,000 to then-GOP-challenger Cindy Burkett (who won).  TLR also doled out nearly $101,000 on Stefani Carter (who also won).  Finally, TLR spent a combined total of almost $150,000 on the campaign for GOP candidate Kenneth Sheets (again, who also won).  That's just the tip of the iceberg.

Despite its "salt of the earth" reputation, TLR is a massive corporate enterprise that wields enormous influence in Texas politics.  What does this mean for 2011?  We will have more later.

What Are Plaintiffs to Do?

We are shocked to find that no one has commented on the introduction of Texas Senate Bill No. 1856 since it was filed on March 11, 2011.  This bill, if enacted would have appalling consequences for injured plaintiffs throughout Texas.

In essence, S.B. 1856 would rewrite Texas Civil Practice and Remedies Code Section 41.0105 such that injured plaintiffs can only recover what they actually paid to the hospital or physician that rendered services.  Based on the literal meaning of the bill, Plaintiffs who are too injured to earn a paycheck and pay off their outstanding balances are out of luck because those remaining bills are not recoverable.

Most litigating attorneys know all too well the long history behind Section 41.0105.  Initially, the statute was part of 2003's wave of tort reform.  The statute stated that plaintiffs' recovery for health care expenses was limited to the amount "actually paid or incurred."  This raised a number of legal questions.  One of the questions was whether plaintiffs could recover the gross medical charges when some of the charges were written off.  That is, many claimed that if plaintiff had a $1000 bill, of which $500 was written off, the plaintiff should still recover the full $1000.  Unfortunately several courts of appeal disagreed, holding that plaintiffs were limited to recovering the remaining $500.

In 2007, the Texas House tried to clear up the confusion with HB 3281, which would have overturned the court cases and make section 41.0105 applicable only to medical malpractice claims.  The House unanimously passed the bill, and only 2 Senators opposed it.  Unfortunately, the bill was promptly vetoed by Governor Perry, thus precluding plaintiffs from recovering medical bills that were adjusted out.

Now the text of the proposed bill is not abundantly clear, and we will have to see what the legislative intent is behind the text.  But, based on the bill's plain meaning, S.B. 1856 would apparently prohibit plaintiffs from recovering outstanding balances, or amounts actually "incurred" (hence, the bill strikes the word "incurred," which was previously part of 41.0105).  Instead, plaintiffs would be limited to recovering what they actually paid to a physician or health care provider as a full payment of their medical bills.  If this reading is correct, the results would be disastrous.  Plaintiffs who are so injured that they cannot return to work and therefore cannot pay their medical bills would be precluded from collecting for the outstanding balance (which they would need to pay that balance) If this is the intent behind S.B. 1856, what are plaintiffs to do?

It isn't hard to see the reasoning behind S.B. 1856.  Senator Deuell was himself a practicing physician and today is a vocal and ardent conservative.  Senator Deuell is also a strongly favored by the Texas Medical Association.  These ties make for a bad bill and bad public policy.  This bill would punish only the poorest and most injured people while rewarding medical facilities and negligent individuals throughout the state.  Hopefully, S.B. 1856 will not pass, but we will be paying close attention to later developments.

Fallout over "Shpoonkle"

Initially, our office was unsure whether this story would take off, but apparently it has generated a lot of controversy since the news hit earlier this week.  A 21-year-old NYU law school student is preparing to launch "Shpoonkle," a reverse auction site in which consumers would post their legal problems and lawyers would bid the lowest possible price to win the client's case.  Proponents of Shpoonkle claim it would allow the indigent more access to attorneys, who often charge exorbitant prices on an hourly basis.  However, detractors are calling this a race to the bottom, where the least qualified attorneys are going to prey upon the least sophisticated individuals.  According to the ABA article here, several attorneys have already signed up with Shpoonkle.  Still, doubts linger whether Shpoonkle will ultimately survive.  There seem to be a quandary of ethical problems involved with such a site, which probably explains why so many similar sites have been shut down in the past (as noted here).

No doubt there are well-paid attorneys who are objecting to Shpoonkle because it would presumably affect their bottom line.  But regardless of that, the idea appears to have its problems. 

To my mind, I see it like this: If I were a doctor, and there were a site (and there might be one) where patients post their medical problems online and physicians bid as low as possible to retain the patient, I would want no part of it.  And if that seems unethical and predatory for licensed physicians, it would seem no different for licensed attorneys.

Ten Things to Do If You Are in an Auto Accident

1)      Call the Police and Request an Accident Report. 

First and foremost, always call the police and get the responding officer to complete an accident report, even if you think one is unnecessary.  Far too often, we meet clients who, for one reason or another, decide to work it out between themselves and the other driver without the assistance of an outside third party.  Sometimes, this can result in the liable party changing stories, and without the aid of an accident report, it comes down to one person’s word against the other.  Even though calling and waiting for the police is inconvenient and time-consuming, sometimes it is mandatory.  In fact, Texas law requires you to report certain accidents, including those involving bodily injury or involving damage to a vehicle to the extent that it cannot be normally and safely driven.  So before continuing on your way, call the police.

2)      Consider Calling for an Ambulance.

Your health is of paramount importance.  Granted, the cost of going to the emergency room is steep, and ambulance bills are often several hundreds of dollars.  But if your injuries are severe and you need urgent medical attention, take care of yourself first.  If you are bleeding profusely, you do not have the time to look for eyewitnesses or take notes about the other driver.

3)      Keep Your Cool.

Car accidents are nerve-racking experiences.  This can compromise your judgment, and you can make poor decisions.  If you follow this general tip, you will be less likely to make mistakes that could hurt your case down the line.  If you aware rational about your situation and realize that you need to calm down and be objective, you will be doing yourself a big favor.

4)      Get All the Information from the Other Driver You Reasonably Can.

Typically, an accident results in both drivers exiting from their vehicles, exchanging insurance, and moving on.  Just trading insurance information can be risky.  First, if you end up having to file a lawsuit and the information is in some way unreliable, it can be difficult to track down the other driver.  Get a name and ask to see their driver’s license.  If you followed step 1 and obtained an accident report, this will document just about everything you will need.  Also note what the driver was doing.  Was he/she on their cell phone?  Did they have food in the car?  Did they appear intoxicated?  Were they in a hurry?  These are all questions that become more and more difficult to answer as time goes by.  So noting them now will help you later.

5)      Watch What You Say!

Everyone says foolish things from time to time, particularly in stressful situations (see point number 3).  If you apologize or deny it was the other driver’s responsibility, those statements could potentially be admissible down the road.  Although the Texas Rules of Evidence protect against the admission of hearsay, there are exceptions where one person’s admission of liability or offer to pay for medical assistance may, in certain circumstances, be admitted in court.

6)      Try to Find Eyewitnesses.

You never know when you may need someone to corroborate your side of the story, especially when the other driver denies fault.  Although this can be an awkward process, you may be surprised by the kindness of others, as people are often more than happy to give their name and number and even write a brief statement indicating what happened.  This can also help reduce the chances of going to court; if the other driver’s insurance realizes they have to fight not one but several individuals, they may be more inclined to settle without the need for litigation.

7)      Wait Before You Decide That You Are Injury-Free.

Car accidents do not always involve immediate, life-threatening injuries.  Frequently, motorists will be involved in an accident, feel fine, and then start noticing symptoms that night or the next day.  This is because many accidents involve soft-tissue injuries, which are not immediately visible to the naked eye.  For this reason, if you begin developing pain, you should carefully consider seeing your doctor before dismissing it as a fluke occurrence.

8)      If Possible, Make Notes of What Transpired After the Event.

The sooner you can take notes of what happened, the better.  If you have life-threatening injuries that require urgent medical care, you will not have time to take notes of what happened.  But when you can, taking notes can be essential to your case.  Litigation can take years, and over the course of time, memory fades and people forget the details.  By keeping a journal of what took place, you can help yourself recollect what transpired when those details become important later.

9)      Keep Records of All Your Bills and Other Paperwork.

Documenting pharmacy receipts, medical records, and vehicle repair work can be invaluable to bolstering your case should litigation occur.  Although your attorney will eventually need to authenticate these records, you can start early and do your part to assist the attorney do his or her job.  Get a file folder and keep everything related to the accident in there.  Staying organized essential to protecting your rights; your attorney knows!

10)  Talk to an Attorney Before Signing Anything.

When offered a check to pay your medical expenses, it can be tempting to simply cash it and move on.  However, you should be careful not to sign away your rights for the sake of quick cash, particularly when the extent of your injuries may be unknown.  As noted in point 7, soft-tissue injuries can take years, and may never fully heal.  Therefore, you should take care to talk to a professional before signing anything.  Move quickly to find an attorney who is willing to discuss your situation.  There are many qualified attorneys out there who are willing to help.  Take advantage of those resources, that is what they are there for.

GOP-lead House Tries to Scrap Product Safety Database

In case you aren't aware, the Consumer Products Safety Commission (CPSC) keeps a registry of consumer's complaints about defective products, for instance, children's toys containing lead.  As it stands, the only way to obtain this information is for individuals to file a public records request with the CPSC.

Not too long ago, Congress recently enacted a bill that would change all that by publishing a public database where consumers could openly share and access these complaints via an online forum, which was supposed to launch next month.  The bad news?  Yesterday, the Washington Post reported that House GOP members are trying to scrap the database.  Read more here. 

Apparently, Kansas House member Mike Pompeo (R-Kan.) offered and won support for an amendment that would cut the finances for publishing the online database.  His argument was that the database would "drive jobs overseas," and "increase the cost for manufacturers and consumers" because of false and misleading complaints, which would hurt a manufacturer's reputation.

This argument appears unfounded.  The article indicates that in February, the CPSC performed a "soft launch" or trial-run of the database; and, after investigating some 900 consumer product complaints, only 4 appeared to be inaccurate.  

Presumably, GOP members are also attacking the database as too expensive.  However, the online forum would only cost $3 million.  This is hardly a drop in the bucket compared to the approximate $1.5 trillion federal deficit reported by the Congressional Budget Office. 

In any case, it appears that an initiative that would have helped inform and educate consumers on product safety will be defeated.

House of Representatives Proposes Draconian Medical Malpractice Reforms

Last month, U.S. House sponsors Phil Gingrey, M.D. (R-Ga.), Lamar Smith (R-TX), and David Scott (D-Ga.) introduced H.R. 5, "The Health Act."  Not only is this bill of questionable constitutionality, it imposes harsh liability caps regardless of the severity of injuries or egregiousness of the defendant's conduct.  Section 4 of the bill, ironically titled, "Compensating Patient Injury," forces a staggering $250,000 cap on all plaintiffs' non-economic damages, "in any health care lawsuit," "regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought." 

The bill is shocking in breadth. This 250K cap would apply to federal and state court cases, and it protects not only negligent physicians, but health insurance companies and pharmaceutical manufacturers as well, apparently applying in any matter "concerning the provision of health care goods or services or any medical product affecting interstate commerce."  The American Association of Justice described the bill as "beyond extreme.  Its authors should focus on real measures that will improve patient safety, not provide welfare to drug and insurance companies that stand to gain the most from this proposal."

To make matters worse, President Obama expressed interest in reviewing proposals like H.R. 5 that eliminate "frivolous" medical malpractice lawsuits. Fortunately, the bill is not projected to pass the Senate.  However, consumers and consumer advocates everywhere should be paying close attention to the bill, which could have devastating consequences across the country.

You can access the text of the bill at: http://www.govtrack.us/congress/billtext.xpd?bill=h112-5

The American Association of Justice has commented on the bill here.