Articles Posted in Court Access

Just after the Memorial Day holiday weekend, Governor Kate Brown signed HB 2027. This essential legislation has been making its way through the legislature since the beginning of the year, and goes a long way toward closing a legal gap I first wrote about last November.

As The Oregonian notes, quoting one of the bill’s sponsors, this “will give the Office of Child Care the tools to gather information, inspect facilities and hold providers accountable for meeting the highest standards of safety and quality care for children.” Specifically, the new law will strengthen oversight of the day care industry by giving the state Office of Child Care the authority “to issue subpoenas, take depositions, compel witness statements and require the disclosure of records during investigations,” according to the newspaper.

Perhaps even more importantly, it also prevents child care givers who face suspension proceedings from working in the industry.

A recent article in The Oregonian outlined what has become a depressingly common story: the abrupt disappearance of Saudi Arabian students facing criminal charges here in Oregon. The newspaper reports that it “has found criminal cases involving at least five Saudi nationals who vanished before they faced trial or completed their jail sentence in Oregon.”

The suspects “include two accused rapists, a pair of hit-and-run drivers and one man with child porn on his computer.” A 2014 case detailed by the newspaper fits the pattern: shortly after the man’s arrest a Saudi diplomat appeared at the local district attorney’s office to post bail for the accused student. Having made bail and been released the defendant later failed to appear for his trial. As the newspaper puts it, the “cases raise new questions about the role the Saudi government may have played in assisting its citizens fleeing prosecution in Oregon – or possibly elsewhere in the United States.”

Any conduct along those lines would be a serious violation of diplomatic norms. Questions like that lie outside the scope of this blog, but there are other issues raised by these cases that are of immediate concern to us here.

I have written on several previous occasions about corporate America’s systematic attacks on the class action system. A recent news item from the Associated Press offers a positive reason to revisit this topic. As the news agency writes, the huge insurance company State Farm reached a settlement earlier this month “in a federal class action lawsuit claiming the company funneled money to the campaign of an Illinois Supreme Court candidate.”

The preliminary $250 million settlement has its roots in a 1999 case that went against State Farm “for its use of aftermarket car parts in repairs.” Thousands of policyholders had sued the company alleging that its decision to pay for used (“aftermarket”) rather than new car parts when carrying out repairs on their vehicles violated the terms of the company’s contracts with customers. State Farm lost the original 1999 case and was facing the prospect of a $1.06 billion judgement against it. The company appealed, which is obviously it’s right and a reasonable thing for it to do. What was not right and proper was for the company to attempt to fix the final result of that appeal.

With the case making its way toward the Illinois Supreme Court, State Farm allegedly poured money into the campaign of a candidate for chief justice who, once elected, provided the key vote to reverse the trial court’s decision. In 2005 “the court ruled that the nationwide plaintiff class was improperly certified… It also contended using aftermarket car parts was not a breach of State Farm policyholders contracts.”

An effort by the Trump administration to roll back an obscure Medicare rule has provoked a loud, and unexpected, backlash according to multiple reports in The Hill, a newspaper that specializes in covering the federal government in general and Congress in particular. The paper reports in June an obscure regulatory body known as the Centers for Medicare and Medicaid Services (CMS) said it intends to repeal a “rule that prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court.”

This is an issue that I have been following for some time both in terms of this specific rule (click here to read my blog from last year when it was originally issued) and in terms of the broader question of arbitration ‘agreements’ that seek to deny ordinary Americans access to our courts when they suffer financial or physical neglect at the hands of a rich or powerful company (an issue I first addressed in 2013).

Thus, it is very heartening to see such a widespread backlash against the administration’s proposed rule changes. According to The Hill, 16 states and the District of Columbia filed formal objections to the policy change when these came due early last week. “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and to seek judicial redress for our claims,” the state attorneys general wrote in objecting to the proposed rule changes, according to The Hill. “This is especially true when consumers are making the difficult decisions regarding the long term care of loved ones. These contractual provisions may be neither voluntary nor readily understandable for most consumers.”

An important thing to understand about the US Supreme Court is that its rulings can often seem narrow and technical even as they have sweeping repercussions for every American. That was the case with two rulings that were issued late last month, just as the court’s annual term came to an end. In both cases the Court might have appeared to be focused on narrow issues that concern mainly other courts and lawyers when, in fact, it was issuing rulings that will have a profound impact on our justice system in general and on Americans’ ability to seek redress in our courts.

The first case, Ziglar v Abbasi focuses on the arrest and detention of hundreds of Muslim men in the wake of 9/11. Though most of the men were held for immigration violations they were treated as suspected terrorists and, in numerous cases, subjected to unusually harsh interrogations and prison conditions. A group of these men sued the government for damages, citing a 1971 Supreme Court decision that allowed state and local officials to be sued for damages when they violate a person’s constitutional rights. The legal question seemed fairly straightforward: one might assume that if state officials can be sued for violating people’s rights federal officials too can be sued when they do so. By a vote of 4-2, however, the Supreme Court disagreed (two justices recused themselves from the case and the newest justice, Neil Gorsuch, had not yet joined the court when the case was argued).

The important thing to understand is that as a legal precedent effecting ordinary Americans the fact that this case involved egregious rights violations in the aftermath of a terrorist attack is not the point. Using the national security implications of that extreme event as a pretext the court has made it far more difficult for any citizen to sue any employee of the federal government. Put simply: this is not about terrorism and national security, it is about our constitutional right to have access to the courts when a government official abuses his or her power.

On Wednesday the US House of Representatives passed the misleadingly-named “Protecting Access to Care Act” on a largely party-line vote of 218-210 (all of the ‘yes’ votes came from Republicans; the noes included 191 Democrats and 19 Republicans). There is no indication yet whether the Senate will take up this little-noticed piece of legislation, but it is worth keeping an eye on, because the provisions of the bill could dramatically curtail patients’ rights. Earlier this month the Trump administration issued a statement of support for the bill – signaling that the President will sign the legislation if it ever reaches his desk.

Earlier this week the website HuffPost published a detailed analysis of the bill by a law professor from New York University. According to that article, the legislation would severely limit the “non-economic” damages that could be awarded in medical malpractice suits involving “injuries like permanent disability, mutilation, trauma, loss of a limb, blindness, sexual or reproductive harm, and other types of suffering and pain. HR 1215 would federally-mandate that if you suffer the most severe non-economic injuries, they are worth exactly $250,000 (no matter what the local jury finds).” In addition, the bill would impose an arbitrary time limit of three years on healthcare lawsuits, making it impossible for injured people to claim compensation for problems that emerged only slowly over a longer period of time.

The measure, in other words, would override state law to protect the economic interests of doctors, hospitals, the drug industry, medical device manufacturers and the insurers who cover all of them.

An Oregon Supreme Court ruling issued last week has received remarkably little coverage outside of the specialized legal press, but it deserves much more attention. In the case of Smith v Providence Health & Services (361 Or 456) the court reversed rulings from both the trial and appellate courts, and found that a legal doctrine known as Loss of Chance “is cognizable under Oregon common law.” In doing so, it significantly increased the rights of ordinary Oregonians confronted with failures or negligence on the part of the medical system.

As the Bend Bulletin, one of the few newspapers to have taken note of the case, aptly noted, the ruling means that Oregonians “can bring medical malpractice cases not only when they are injured but also when negligent care denies them a treatment with a potentially better outcome.”

The case revolved around a man “who went to a Hood River emergency room in 2011 concerned that he was having a stroke. Doctors discharged him without ordering an MRI or prescribing clot-busting drugs. By the time an MRI confirmed a stroke a week later (he) had incurred significant brain damage.” Both the article and court’s opinion note that had these precautions been taken there is a one-in-three chance that the plaintiff would have recovered substantially, perhaps even completely, from the stroke.

Last week a jury in St. Louis became the fourth in a year to award substantial damages to a plaintiff who believes that consumer goods giant Johnson & Johnson’s talcum power is linked to ovarian cancer. According to a Bloomberg News report, the Missouri jury awarded the woman $110 million in damages. This follows three jury verdicts of $55 to $72 million in similar cases last year (the company has won one case during the same period, according to Bloomberg). Appeals are expected in all of the cases.

The agency quotes the attorney for the plaintiff in the St. Louis case saying: “Once again we’ve shown that these companies ignored the scientific evidence and continue to deny their responsibilities to the women of America… they chose to put profits over people, spending millions in efforts to manipulate scientific and regulatory scrutiny.” In addition to the millions in damages from J&J the jury also Imerys Talc America, a separate company that manufacturers talc sold under the J&J label, to pay $100,000 in damages.

Bloomberg reports that more than 1000 cases alleging a link between J&J’s talc and ovarian cancer have already been filed. Though J&J is headquartered in New Jersey many of these cases have been filed in Missouri because that state’s laws allow for suits like these to be filed in its courts even when the plaintiff has no connection to the state (last week’s $110 million verdict involved a woman from Virginia). But is it necessary for all these cases to head for the Midwest? Are the product liability laws here in Oregon adequate to address cases like this?

The announcement last week that the federal government will bar most nursing homes and other care facilities from forcing clients to sign care contracts requiring them to settle disputes in arbitration is an enormous victory for ordinary Americans – one that deserved more attention than it received in both the national and local media.

As the New York Times noted: “With its decision, the Centers for Medicare and Medicaid Services, an agency under (the Department of) Health and Human Services, has restored a fundamental right of millions of elderly Americans across the country: their day in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term health care facilities in more than two decades.” Because virtually every nursing home and care facility in the country receives funds from either Medicare or Medicaid (and often from both) the rule is, effectively, universal. The rule change was essential to curb the spread of arbitration since a 2015 Supreme Court ruling (DIRECTV v Imburgia) which not only held that arbitration clauses are legal but also threw out state-level bans on the practice.

Obviously a federal law banning forced arbitration clauses can’t be passed in Washington’s present polarized political climate, but with last week’s decision the federal government effectively used the leverage that comes from being the largest single player in our healthcare system to put citizens ahead of corporate profits. The new federal rules effectively overturn the Court ruling in the area of nursing homes and related services.

John Oliver made a big splash last weekend by highlighting the unsettling, and ridiculously lightly-regulated, world of medical debt collection, but a much longer and more serious story published a few days earlier by NPR adds significant depth to reporting on this undercovered issue.

The NPR piece (linked below) details how non-profit hospitals across the country have abused their tax-free status to pursue poor Americans in court. When discussions about universal health care take place in this country it is stories like these that we need to focus on: people who are driven into bankruptcy or who do not get the health care they need because they lack the money to pay outrageous medical bills. That these people are being hounded in court by institutions that also enjoy tax-free status is simply unconscionable.

A search at ProPublica, the public interest journalism website, yields tax filings for dozens of non-profit hospitals here in Oregon. As Oregon Public Broadcasting recently noted, that tax status is predicated on the idea that hospitals which are not in business to turn a profit will do substantial charity work and forgive medical debt whenever it is practical. Yet as OPB documents, between 2014 and 2015 the funds devoted to charitable health care dropped by more than a third here in Oregon, despite the fact that during this time period Obamacare was bringing many more low income patients into our state’s hospitals.

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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