24 March 2011

Oh, What Some Lawyers Do; And Other Tales

Not so long ago, I read a book titled An Honest Calling, about the law practice of Abraham Lincoln. And that's what the practice of law is, a calling, and an honest calling.

In an organized society, lawyers play a central role. They are John Adams who was paid only 18 guineas for more than two weeks of near-continuous work defending British soldiers accused of the Boston massacre, one of the most inflammatory and unpopular defenses ever raised. They are Andrew Hamilton who, in 1735, kept Peter Zenger out of a dungeon-like prison for seditious libel by sassing the King's hand-picked Judge and daring to ask a jury to find someone innocent because it was the right thing to do even if the Government wanted him gone. They are Abraham Lincoln who, in his practice, did such important cases as those which resolved the right-of-way disputes between the river freighters and the railroads with their bridges. Lawyers wrote the Constitution. Lawyers stand in the way of the government or the mob (frequently the same people) attacking the individual. Seldom is the law a pathway to great wealth, and anyone who goes into it expecting the contrary is likely to be disappointed.



I’m getting damn sick and tired of the blame, the slams, the disdain, the lies, and the intentional distortions, driven by those who have a reason to fear just treatment and often driven by hidden economic power.

But, oh, what some lawyers do…

Monday’s edition of the Times-West Virginian contained a full page ad placed by a law firm which has offices in several states, but not in West Virginia. The banner at the top of the page read “IMPORTANT NOTICE” and continued, “If you or your loved one was is a resident of one of these [nursing home] facilities, they have been cited for multiple deficiencies including:”


[Note: I mention only in passing that the opening neither makes logical sense nor is grammatical. Whether facilities are cited is not dependent on whether your loved one is a resident there. “They” presumably refers to the facilities rather than your loved one, but I could be wrong.]

The full-page ad then lists numerous “deficiencies” existing in two (related) nursing homes which are located right up the road from No. 3.

The nursing home industry is fairly heavily regulated. The great majority of nursing home fees are paid by Medicare and Medicaid. To qualify for Medicare/Medicaid reimbursement, facilities have to abide by a hefty set of rules and are subject to frequent inspection. Inspections are exceedingly thorough. If there is a dirty spoon in the kitchen, you get gigged for it. If the nursing notes do not clearly document all aspects of care, you get gigged for it. (Whoops, there I go committing the same grammatical error as the law firm. “You” don’t get gigged for it, the facility does.) Of course, there are different levels of violations. Fatal medication errors, blocked fire exits, scalding bathing water, dropping patients and so forth are failing grades. Inspection results are reported very generally on the Medicare website. You cannot tell from looking at them if there was a dirty spoon for the whole kitchen was one big petri dish.

Back to the ad – beneath each facility’s name is a list. Every entry begins with “FAILURE:” Among the “failures,” we find a host of things, including:



  • FAILURE To provide care in a way that keeps or builds each resident’s dignity and self-respect.

  • FAILURE To follow all laws and professional standards.

  • FAILURE To at least one a month have a licensed pharmacist check the drugs that each resident takes. [I’m not sure who splits infinitives, the government or the law firm.]

  • FAILURE To provide proof that all residents’ personal money which is deposited with the nursing home is secure.

  • FAILURE To have a program to keep infection from spreading.

  • FAILURE To tell the resident, doctor and a family member if: the resident is injured, there is a major change in the resident’s physical/mental health, there is a need to alter treatment.

  • FAILURE To hire only people who have no history of abusing, neglecting or mistreating residents; or report and investigate any acts or reports of abuse, neglect or mistreatment of residents.

  • FAILURE To make sure that the nursing home area is free of dangers that cause accidents.

  • And so forth.


The banner at the bottom of the ad warns:

"POOR CARE CAN LEAD TO BEDSORES, BROKEN BONES… EVEN DEATH."

And then, of course, the aggrieved reader is invited to call the law firm’s toll-free number for a free evaluation.

At the outset, let me say that I’m not in competition with these lawyers. I’ve never done a nursing home liability case (see below), never expect to and, for that matter, never want to.

Since lawyers don’t know a whole lot about advertising, sometimes it is merely tasteless or silly. (“Don’t take a knife to a gunfight.” “Ever try arguing with a woman?”) As a whole, the idea is thoroughly legitimate and proper. “These are the kinds of cases I do, I’ve done a lot of them, I’m good at it, and I’d like to talk to you about yours.” In other words, I want a share of the market of the cases out there where people need lawyers. Perhaps it is unfortunate that people need lawyers. But they do.

But some lawyer advertising goes farther – it creates cases. I cringe whenever I see ads that start out with "Did your loved one take Tri-Mumble-Chloride tablets and get warts? If so, YOU may be entitled to money!" Surely, some legitimate cases will be discovered, along with a whole lot of dogs. This was also the case early in the asbestos cases. Now, however, those are mostly restricted to patients with mesothelioma which is a cancer almost exclusively caused by asbestos exposure. How many bogus cases are created, though?

Nursing homes are good targets for this kind of advertising. Potential plaintiffs are very sick people. Nursing home residents are, with very few exceptions, guaranteed “a poor outcome.” The Bible refers to this as an allotment of one’s threescore and ten, but in nursing home context that is quite grim. “Dignity” is not happening in a nursing home and anyone who pretends otherwise may have other fantasies. Nursing homes have patients always with diminished physical capacities and usually diminished mental capacities and working with the patients is quite challenging. And then there’s the family dynamic. The family was introduced to Mr. Reality who told them that they cannot care for Grandma in a home setting. Most families are feeling really guilty about that. Then they realize it’s a load off their shoulders, and so they feel guilty about being relieved. Some families worry about the expense of the nursing home and the effect on inheritance. So there you have guilt because nothing is too good for Grandma, and so forth. And then when there is the inevitable “poor outcome,” how attractive it is to have a “they” who did in Grandma, which gets God and Life and the family off the hook.

When you have a fragile population, the opportunities for negligence which actually causes injury are many. Medication errors, scalds and falls happen in nursing homes and one that causes damages calls upon our system of justice to have the negligent party repair the damages insofar as they can be repaired with money. Usually this is done through insurance. In nursing home cases, insurance companies have the very ticklish issue of how to offer the argument that damages for a younger person may entitle that person to a larger verdict than damages for an injury to an older person who was already severely ill and facing a limited lifespan. Cold? You bet. That’s why most lawyers shy away from those arguments.

For that matter, in one of the nursing homes subject of this week’s ad (when it was operated by some other company and something like 25 years ago) there was an incident of negligence which caused the death of a patient. Somehow a patient got smoking materials and caught his or her (I forget which) bed on fire. We were cruising nearby, so beat the fire department to the scene, evacuated the burn patient and evacuated the wing where the fire had taken place. The victim’s family filed a lawsuit and while I lost track of that, I’m sure that there was a settlement or verdict. And justifiably so.

That was a no-brainer. But what about cases related to the conditions in this inflammatory ad? For these facilities’ failures, we’re in the dark. For instance:

  • FAILURE To follow all laws and professional standards. Which ones? The murder statutes? Littering?
  • FAILURE To at least one a month have a licensed pharmacist check the drugs that each resident takes. [I’m not sure who splits infinitives, the government or the law firm.] Did someone go 32 days without a check? Was someone forgotten? Was there a serious med error?
  • FAILURE To provide proof that all residents’ personal money which is deposited with the nursing home is secure. Damfino how that will break bones, but they should keep track.
  • FAILURE To have a program to keep infection from spreading. Does that mean they didn’t write everything down or that staph was rampant?
  • FAILURE To tell the resident, doctor and a family member if: the resident is injured, there is a major change in the resident’s physical/mental health, there is a need to alter treatment. What actually happened? What was the omission?
  • FAILURE To hire only people who have no history of abusing, neglecting or mistreating residents; or report and investigate any acts or reports of abuse, neglect or mistreatment of residents. Oopsie, this is a big one - Did they hire someone and muff the background check? Or fail to document an investigation? Sometimes there is real harm. Mental deterioration often includes fear and misperception of harm. Which?
  • FAILURE To make sure that the nursing home area is free of dangers that cause accidents. Did they fail to document something? Were there banana peels laying around?

We Just Don’t Know. Where there is smoke, there is smoke and it’s hard to see.

Who wins? Some patients are actually harmed and to the extent that they can be compensated or appreciate the compensation, they can win in a nursing home suit. Families of patients likewise can benefit as to actual losses. The monetary losses probably will not be large – most patients in nursing homes will not return to the status of “breadwinners” for a family. (On another day, we will discuss the justice of money for non-economic damages, particularly for those who did not sustain injury.) Counsel for the injured people certainly gain, usually on the order of 1/3 to 40% of the recovery. The particular law firm which placed the ad boasts it has achieved nearly $1/2 billion of verdicts and settlements. The defense lawyers benefit significantly, although very strict controls placed on them by insurance companies are driving some of the best of them to the plaintiff side. And, finally, the insurance companies themselves always can use a few scarecrows to justify premiums. Notably, in places where there has been “tort reform,” there is been little or no rollback of insurance premiums.

Who loses? Well, who pays? Who always pays? What creates value from which payment is made? Right, value is created by people doing work. We have decided on a system of risk distribution so that we all pay a little so that injured people will receive just compensation. At some point it crosses the line from just compensation to rampant wealth redistribution, and every step of the redistribution exacts its own little tax on the process. That is only feebly related to the concept of justice which has grown up “around the council fire” as our civilization has matured.

And we lose respect for the system of justice. We acquire some jaded disdain for orderly compensation to injured people, and so other genuinely injured people suffer from hostile and thick minded juries and mean-spirited judges who deny them even a modest just compensation.
This law firm is done nothing wrong in its advertising. This is the First Amendment at work.

I’m still glad I’m a lawyer. I’m still glad pickup the hammer and tongs and played on behalf of people who need me.

But, oh, what some lawyers do.


Nukes?

Continuing with the newspaper, today's “person on the street” column asked about the future of nuclear energy after the Japan reactor emergencies. West Virginia is, of course, a major coal producing area. The answers all called for using coal and all but one called for “clean coal technology.”

There is a problem with that. "Clean coal" does not exist in a commercially viable form for power generation. As matter is changed to energy or matter changed to different matter, there is a transfer of energy involved. To change coal into something which burns cleanly requires energy put into the conversion process which will not then be available for the end-use, power generation. That conversion is also expensive. So you take a lump of coal with a certain chemical energy within it, and spend money to reduce the available energy to make it burn more cleanly, meaning it will burn and release fewer particulates and lower amounts of harmful chemicals. But the amount of carbon liberated (which eventually will be taken up as carbon dioxide) remains the same.

This is just one brick in a very complicated wall. There are no simple answers to energy.

Pippa passes.

R

1 comment:

Robert said...

The "argue with a woman" ad is/was silly. Whenever I saw that billboard, I cringed.

I have mixed feelings about the nursing home litigation. Those feels are based on having an elderly relative spend time recently in one, so your point is well taken.

Interesting post.