ThePopTort will be taking a bit of a breather over the holidays.  In the meantime, enjoy our list of Top Ten Civil Justice Triumphs Of the Decade!  The full post can be found at the Huffington Post, but below is a quick list, in no particular order.

And if you haven’t already voted, please give a shout-out to ThePopTort, selected by editors of the ABA Journal as one of the top 100 legal blogs (out of a possible 2,500!), by voting for us as your favorite legal blog.  You do not have to be an ABA member to vote, but you will need to register.  Voting ends December 31 at 5 p.m. CT.  Thank you, and Happy Holidays to all.

 And without further ado, here are your top ten civil justice triumphs of the decade!

1. Utter Failure of President George W. Bush to Extinguish Patients’ Rights.
2. Rights Restored for Victims of GM and Chrysler Defects.
3. Repudiation by the U.S. Supreme Court of Bush “Preemption” Policy.
4. Washington State Turns the Tide, Twice.
5. Finally, Arbitration Gets the Bad Name it Deserves.
6. ThePopTort is Born.
7. A New Batch of Books Put the Lie to “Tort Reform” Myths.
8. Insurance Reform Works!
9. Big Problems at the U.S. Chamber of Commerce.
10. The Center for Justice & Democracy Survived!

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If you obliterate patients’ rights, they will come (the doctors, that is).  And if you don’t, they’ll leave.  So goes the oft-repeated promise – and threat – of the insurance industry and medical lobbies.  We’re all too familiar with how the “access to care” issue tends to be discussed – couched in hyped-up fear-mongering, not facts. “Who Will Deliver Your Baby?” said the scary, glossy Texas brochure in 2003, with industry arguing that the only way to solve doctor shortages in rural Texas was for patients to relinquish their constitutional rights – which they proceeded to do. 

But facts are stubborn things, as the Texas Observer first pointed out in 2007.  No, the docs were not coming back to these areas.  Not that anyone should be surprised, given the wealth of evidence showing why not.  But that hasn’t stopped politicians from continuing to mislead the public about what happened in Texas, repeating the myth the doctors have returned to underserved areas now that everyone’s legal rights have been stripped away.  

But here come those stubborn facts again!  According to a recent analysis of Texas Medical Board data in the Fort Worth Star-Telegram, “[t]he number of new doctors in family practice, the area most in demand, has increased by only about 200 [since 2003], about 16 percent, and more than 130 counties still did not have an obstetrician or gynecologist as of October [2009].”  Meanwhile, of the new doctors who have chosen to settle in Texas since 2003, more than half have chosen to “settle in the state’s largest urban areas, not in rural areas, where the shortage has been most apparent.”  And twenty-two Texas counties have no doctor at all.

Similarly, the New York Times reported yesterday that in Texas, “180 counties do not have enough physicians, 70 percent of patients cannot obtain a same-day visit with their primary care doctor, and 79 percent of emergency room visits are for routine problems.” 

Ultimately, as Alex Winslow, executive director of Texas Watch, observed: "Consumers [in Texas] are much worse off today….Not only have they not seen the benefits they were promised in healthcare, but now they’ve lost the ability to hold someone accountable. I think that puts patients at greater risk."
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Clearing the way for the real squeaker 60-40 Senate vote on health care at 1 a.m. this morning, was another key weekend Senate vote – the 2010 Defense Appropriations bill – which passed Saturday night by a less squeaky margin 88-10.  The bill kept in tact Senator Al Franken’s amendment, which prohibits the Defense Department during this appropriations year, from contracting with companies that prohibit rape victims from accessing the courts.  It will now be sent to the White House where President Obama is expected to sign it into law. (It already passed the House.)

The most shocking thing about all of this was not just that it was needed in the first place, but that lots of Senators voted against it with the apparent backing of the U.S. Chamber of Commerce.

In an op-ed published in today’s Minneapolis Star Tribune, Franken writes passionately about the company’s policy of denying such victims the right to bring lawsuits against those responsible, forcing them into mandatory binding arbitration.

No corporation -- no matter how powerful, how well-connected, how seemingly impenetrable -- should be permitted to rob its workers of their rights.

But that's exactly what happens when someone signs up to work for companies like KBR. Most people don't realize it when they're signing a stack of employment papers, but they're agreeing to give up their right to have their day in court.

In arbitration, there is no public record of the proceedings, no transparency and no accountability. It's the employer that typically pays for -- and in some cases, even selects -- the arbitrator. That's why in rape cases, the outcome of the binding arbitration has stipulated that the victim remain silent. There is no way for the next 20-year-old woman who signs up to work for KBR to hear about what happened to [rape victim] Jamie Leigh Jones….

Hopefully, this represents another nail in the coffin for these involuntary, unfair schemes. 

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Enough people are talking about the pros and cons of the guts of the health care bill that we probably don’t need to stick our PopTort nose(s) in it, too.  But we do have to say that when it comes to liability issues, we are relieved to see the strong patient safety focus in the Senate’s Manager’s Amendment (the recently negotiated Senate bill).  See the bill at p. 344.  

Here is some of what we like about it: it proposes to give money to states to consider litigation alternatives, but only programs that are shown to improve patient safety, are voluntary and allow patients to opt, and do not limit a patient’s legal rights.  Clearly, if this passes (the House bill currently has something similar), we will have our battles at the state level as certain well-funded forces try to impose anti-patient measures like “Health Courts.”  But we’ll cross that bridge, as they say….

Whatever is done, we hope it works to reduce errors, but not just in hospitals, (here, here, here, for example) but also those of incompetent individual doctors, who by the way already have more liability protections for their negligence than any other profession in the country. 

That reminds us, there was a fascinating interview published in the December 17 online New York Times column, “Doctor and Patient” with Dr. Robert M. Wachter, renowned physician and patient safety expert, who noted, “I can lose my hospital privileges if I fail to sign a dictated discharge summary or operative note. But if I don’t clean my hands for the next 10 years, nothing will happen to me. … Medical mistakes are our bad. Why should patients bear the responsibility to receive the right medication or to have the correct leg amputated? When I get on a plane, I don’t worry about safety and errors.”

He also noted, “As doctors, we have to admit first that we don’t deliver care that is of the quality and safety our patients deserve. Then we have to get past our professional arrogance. We don’t have the answers to all of these issues, and we have to be open to others who may have the answers or who can approach it from different angles.”

So I guess we'll see! 

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It’s been quite a good year for consumers complaining about hidden clauses in bank “agreements” that force all credit card and loan disputes into the extremely biased process known as “mandatory binding arbitration.”   First, in March the U.S. Supreme Court made it easier for consumers to challenge these clauses in court.  Then, in an incredible development precipitated by a lawsuit, both the National Arbitration Forum and American Arbitration Association said they would not take part in these credit card collection disputes - for now, at least.

Now, the results of a four-year-old class action lawsuit against several huge banks are starting to bear major fruit, with the latest twist being that Bank of America Corp. earlier this week agreed to drop these clauses in consumer contracts – for a few years, at least. 

The suit said the banks “conspired to require their card customers to resolve disputes in arbitration, including debt collections.”

While Bank of America’s agreement comes some four months after the bank voluntarily stopped enforcing arbitration agreements with existing customers, BoA’s recent settlement goes even further “by removing arbitration clauses from consumer and small business card holder agreements for at least three and a half years.”

Meanwhile, JPMorgan Chase & Co. brokered a similar deal last month.  The remaining stubborn banking bigwigs (like Capital One and Citibank) continue their battle to keep the notoriously one-sided process in place.

Guess some banking “dinosaurs” never learn. 
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