Aaron Freiwald

Welcome to The Law Matters

This blog is dedicated to thought and discussion about how to make the law matter positively for individuals and families.

My GI Doc’s Hand is Out
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Now that we have all given thanks, and now that the day of mob shopping is thankfully behind us, now begins the season of giving. I mean, charitable giving. Many of us are thinking about which organizations and causes we want to support financially and about writing those checks before the end of the year.

So it is not surprising at all that every day’s mail brings more and more solicitations to my home, as well as so many telephone solicitations, from innumerable worthy causes: the ASPCA, United Way, Planned Parenthood, and many other organizations and groups that we support and that would like our support.

What was surprising was getting a fundraising solicitation from my gastroenterologist.

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The $35 Solution
Pulse-Oximeter

So much has been written about the excesses of health care and ways to reform, cut, improve or save the system. I have a more modest proposal: Read the medical bill and get annoyed, like I did.

A year ago, our firm switched to a health savings account (HSA) system. Previously, we had fully paid for our employee’s health insurance. Under the new system, each employee has an HSA account and pays for health care services up to a specified dollar amount per year, the deductible, out of that account. Once the individual reaches the deductible limit, insurance pays for all further services needed. At our firm, the partners decided to pay the amount of each employee’s deductible. For the employee, this means no out of pocket costs. Meanwhile, the price of our firm’s overall health insurance costs annually went down.

I haven’t come to the proposal yet; but the HSA system led me to my proposal.

Now, when I go to the doctor, the bill still goes to my insurance company – that way, they can track how much of my deductible I have used – and then I get a statement for the amount I must pay for that doctor visit. I send a check in to the doctor’s office and keep a copy for my records.

Since our move to an HSA system, I am far more keenly aware of what health care costs. That is part of the point of this approach. If health care consumers are brought into closer contact with the business of medicine – by actually writing a check each time a health care service is provided – then the consumer may exercise some restraint in how health care dollars are spent.

Well, I have been brought into closer contact with the business of medicine and I am not happy.

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The Truth Opaque
Surgical-Instruments

The retained surgical sponge case is probably the most classic example of clear-cut medical malpractice. When a surgeon or nurse leaves a surgical sponge or instrument inside a patient’s body during surgery, Pennsylvania law recognizes that this is an error so obviously beneath accepted standards of care that the usual rules requiring a Plaintiff to have a medical expert are relaxed.

We would all like to think that these kinds of medical mistakes are uncommon. The Pennsylvania Patient Safety Authority (PSA), in a startling report issued recently, tells us otherwise. Here is a link to the report. http://patientsafetyauthority.org/ADVISORIES/AdvisoryLibrary/2012/Sep;9(3)/Pages/106.aspx.

In 2011, there were a shocking 452 reported cases involving a retained sponge, medical instrument, surgical needle or other item, according to the PSA’s September 2012 advisory, “Update on the Prevention of Retained Surgical Items.” The Advisory also reports on various measures different organizations have recommended to suggest clearer hospital guidelines. The hope is that more coherent hospital policies will reduce this incidence of retained surgical items.

For a number of reasons, I don’t believe guidelines and policies alone are sufficient to address this problem.

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Medical Liability: Focus Should Be Patient Safety
Medical-Error

Why do conservative politicians and lawmakers continue to bark about the need for medical tort reform? Why does ALEC and other corporate lobbying groups want so badly to limit the rights of those most seriously injured because of medical errors? After all, every legitimate study shows that the “cost” of medical liability payments to those who are the victims of medical malpractice represents but a nanoparticle out of total annual health care costs.

When the administrative office of Pennsylvania’s court system issues data on the numbers of case filings, the number of medical malpractice cases is consistently down from its high points. Data on the results of jury verdicts, even in the “judicial hellhole” that is Philadelphia (as characterized by tort-reform proponents), show a overwhelming advantage for the defendant doctor or hospital.

Even prominent tort reform advocates admit, when pressed, that our legal system is not being inundated with frivolous medical malpractice claims. Victor Schwartz, the general of the American Tort Reform Association, one of the most influential voices for curbing the rights of victims of tort reform, has conceded: “It is ‘rare or unusal’ for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring.”

Why do Republicans continue to press this issue then? The answer, plain and simple, is money. Any rule or restriction that limits recovery for those injured by medical mistakes – such as a cap on the amount of monetary damages a plaintiff may recover in a civil lawsuit – means more money in the hands of medical malpractice insurance companies.

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Junk Food: Time for a New Prohibition?
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Let’s face it, so many of us battle an addiction to junk food. As a kid, I loved Hostess chocolate cupcakes. In college, Cap’n Crunch fueled many a group study session. As an adult, I mostly eat healthy foods – except for chocolate chip cookies. And an occasional ice cream. And . . .

For many Americans, junk food – foods high in calories, sugar and fat but low in nutritional value – is the staple of every day’s diet. And it shows.

There is no denying that we face an obesity epidemic in our country. Nor is there any denying that pervasive obesity is having an belt-busting impact on health care. Health care costs attributable to diabetes alone – according to the American Diabetes Association – account for 1 in every 10 health care dollars annually. That doesn’t even count lost time from work, reduced productivity and other economic consequences of the disease.

So, what is wrong with the idea of regulating junk food as a means to better health? When New York City Mayor Bloomberg recently proposed outlawing jumbo-sized sugary soda drinks, he ignited a firestorm. The proposal had nothing to do with outright banning Coke or Mountain Dew, but libertarians barked anyway at the idea of any government encroachment into personal choices.

What about my personal choices? Dietary decisions are a significant cause of obesity, which leads to higher rates of chronic disease, which leads to greater demand for health care, which leads to super-sized health care costs. Widespread obesity in our country, in short, affects us all.

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GMO: Put A Label On It!
Cubic-Orange

Can you imagine grocery shopping and having the supermarket manager tell you that the labels had been removed from all the products on the store’s shelves? Unthinkable! Unimaginable!

So why then is there such intense opposition to the idea that product labels should include disclosure of any genetically engineered ingredients? After all, public opinion overwhelmingly favors GMO labeling. A 2011 New York Times poll found 89 percent of Americans want labeling of GMO products. Separate polls conducted last year by MSNBC and ABC reached similar results: Nine of ten Americans favor mandatory GMO labeling.

Accurate product disclosure allows consumers to make informed choices. When it comes to food, we should be concerned and aware of what we are putting in our bodies and in our children’s bodies. Who could argue with an idea so obviously worthwhile?

Agricultural and chemical company interests and their allies oppose GMO labeling, that’s who. And these companies, led by industry bogeyman Monsanto, have the money, the political and lobbying muscle and the financial interest to fight against the popular will.

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Penn State Needed ‘Beautiful Souls’
Joe Paterno

We know how to feel about serial child rapist Gerry Sandusky. Horror at his crimes. Heartbreak for the victims. Relief that he was convicted at trial and is finally behind bars.

A bit more difficult is what to make of Joe Paterno and the rest of the senior university officials, who enabled Sandusky to prey on so many children for so long. Then came the comprehensive report of former FBI Director/Federal Judge Louis Freeh, issued late last week. Now there can be no doubt that Paterno and the others knew about Sandusky going back many years. The Freeh report also makes clear that Paterno and the others cared far more about protecting their beloved (and lucrative) football program than about the welfare of innocent children inexcusably violated by one of their own.

As Judge Freeh noted in his report: “The most saddening finding by the Special Investigative Counsel is the total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky’s child victims. . . . [Paterno and others] failed to protect against a child sexual predator harming children for over a decade.”

Penn State revered its football program and its longtime father-figure, too. (“Pater” is Latin for father.) With this report, he now faces the opprobrium he well deserves. With all that we now know, it is easy and justified to loathe Paterno for his reckless failure to intervene and prevent countless assaults. It just seems shallow and callous anymore to fret over Paterno’s legacy as a football figure. He was a knowing co-conspirator in perhaps the worst serial pedophile scandal ever.

Most perplexing is what to make of everyone else who surely must have known, must have had some idea of what Sandusky was doing? What about the janitors who witnessed what they saw going on in the athletic center’s showers? What about the assistant coaches? The players? What about Mike McCreary, who was apparently an eyewitness to child rape, or McCreary’s father who learned what his son had seen and heard? There had to have been many, many individuals who knew something, even if not the entire story.

How could all those people remain silent? Why didn’t they do something? Why didn’t they say something? Hannah Arendt called this the “banality of evil” when trying to make sense of how millions of Germans could allow Eichmann and the Final Solution to take place right in front of their faces. Is that what was going on at Penn State?

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Debunking Another Tort Reform Myth
medical care costs

In the days after the Supreme Court’s decision to affirm the constitutionality of the Affordable Care Act, Senator Minority Leader Mitch McConnell (R-KY) vowed that Republicans would retake control of the United States Senate and then, as their top priority, would “repeal and replace Obamacare.” On July 1st, Fox News’ Chris Wallace challenged Sen. McConnell on how he would then deal with 30 million uninsured.

McConnell’s back-of-the-hand remark to Wallace – “That’s not the issue” – received the most attention in the media. Though insensitive, politically and otherwise, McConnell’s attempt to explain the “replace” part of his prescription was more worrisome.

First, McConnell said, Obamacare would be repealed. No ifs, ands or buts. Second, the Kentucky Republican promised, Obamacare would be replaced with “more modest reforms,” like “lawsuit reform,” which he claimed was necessary because of the “billions and billions” hospitals and doctors are paying every year because of lawsuits.

Tort reform? That old Republican chestnut? A cap on money damages as a way to solve the problems with our health care system by reducing health care costs? Why yes, McConnell and others say and have said for years as they receive steady donations from insurance companies and the Chamber of Commerce and others promoting talk of “frivolous lawsuits” and “jackpot juries” and “judicial hellholes.”

Nothing new in all this. What is new is fresh evidence, courtesy of Public Citizen, that the conservative cry for “lawsuit reform” is not the answer. Or, how about this, Senator McConnell: That old dog won’t hunt.

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Caveat Patients
Hospital-scene

For as long as I can remember, Consumer Reports has been the name most closely associated with straight up ratings of innumerable consumer products and services from dishwashers to cameras to, well, you name it. Last week, Consumer Reports issued its first-ever review of hospitals across the country with a focus on patient safety.

If you’re a patient or you might someday be a patient, if you’re a physician or a nurse or a hospital administrator or, frankly, if you’re breathing, these results should be disturbing.

Consumer Reports (CR) explains that its review is based on the “most current data available,” including “information from government and independent sources on 1,159 hospitals in 44 states.” That sounds pretty good, except that CR was only able to reliably consider data on 18 percent of hospitals. Clearly, 18 percent is not good.

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Exposing ALEC in Pennsylvania
Scales of Justice

Alec Baldwin is a star of the large and small screens. He is good and funny. ALEC, on the other hand, is no laughing matter. And there is nothing good about ALEC, unless you’re one of the big companies that funds its work and benefits from its efforts to curtail individual rights.

Most of us knew nothing about ALEC – the American Legislative Exchange Council – until the Trayvon Martin controversy. ALEC led the way in Florida (and other states) lobbying for passing a Stand Your Ground law, which is now the basis for George Zimmerman’s defense against charges he shot shot dead an unarmed teenager.

If you don’t know much about ALEC, you should and a good place to start is a new report, issued earlier this month by the group Take Back Our Courts, a project of the Pennsylvania-based Keystone Progress. The report, “Justice Denied in Pennsylvania,” examines ALEC’s background and its agenda as well as its influence on Pennsylvania legislators. http://takingbackourcourts.org/justice-denied-in-pennsylvania/

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