Left Coast Costs

Cutting nurses’ patient loads boosts care, costs | USA Today | 7.25.04

…The California law took effect in January. But not everyone is pleased. Mary Dee Hacker is the chief nursing officer at the 286-bed Children’s Hospital Los Angeles.

“On any given day we have physicians who want to admit patients, and I cannot accept them because I don’t have enough nurses,” Hacker says. “California is in a public health crisis in not having enough nurses. We were dealing with that before the minimum staff ratio, but now it’s been exacerbated.”

In the USA, hospitals average a 13% nurse vacancy rate, or about 126,000 vacancies nationwide, according to the American Nurses Association. About 2.7 million nurses are licensed in the United States, with about 59% working in hospitals, the rest in other areas of nursing. Causes of the shortage are varied: not enough faculty to expand nursing school enrollment, wider opportunities for nurses outside of hospital care and a decade of changes by the hospital industry that nurses blame for increased workloads, driving some to leave the profession.

Hospitals in many metro areas around the country are already in a dog-eat-dog fight to attract and retain their nursing staff. The same is true in California. The state estimated that 5,000 nurses would be needed for the state’s hospitals to meet the new law’s requirements, but hospitals say the number is higher. Kaiser Permanente alone says it has hired 6,000 nurses statewide in the past two years to help it meet its staffing standards. …

In November 2001, I gave a presentation (images below) on the impact of nurse staffing ratios (NSRs) with the pending implementation of the AB394 (the enabling legislation)—at the time there was an average of 782 nurses per 100,000 population in the United States, with California at the bottom (25% below the national average, original data from NurseWeek). Additional factors at play, capacity in hospitals and health systems continue to decline, increase demand, and a continued rise in the age of an average nurse all bode poorly for California—especially if other states adopt similar legislation (IMHO, just a matter of time) and are functioning at higher per capita of nurses. We may see a siphoning of nurses from the low end of the per capita pool, whereas we’re now seeing lots of siphoning of nurses into traveling because of the better pay here out west. I’ve had whole shifts composed with nurses from Canada, South Africa, and the southern U.S.—including charge nurses and house supervisors.

More Preemption

Bush Admin Siding With Drug Cos In Patient Suits-NYT | WSJ | 7.24.04

NEW YORK — The Bush administration has been going to court to block lawsuits by consumers who say they have been injured by prescription drugs and medical devices, The New York Times reported Saturday.

The administration contends that consumers cannot recover damages for such injuries if the products have been approved by the Food and Drug Administration, the Times reported. …

In its court filings, the Bush administration argues that private lawsuits threaten to disrupt a comprehensive nationwide system of drug regulation, and that federal standards pre-empt requirements established by state judges and legislators, the Times said.

In effect, the administration says, if a local judge or jury finds that a drug or device is unsafe, it is in direct conflict with the conclusion reached by the F.D.A. after years of rigorous testing and evaluation, according to the Times.

See PointofLaw and Overlawyered

One Less Teenager

Special day today—the first of my three teenage sons turns twenty. I have no idea where the time has gone.

Tort Preemption

In a Shift, Bush Moves to Block Medical Suits | NYT | 7.25.04

WASHINGTON, July 24 — The Bush administration has been going to court to block lawsuits by consumers who say they have been injured by prescription drugs and medical devices.

The administration contends that consumers cannot recover damages for such injuries if the products have been approved by the Food and Drug Administration. In court papers, the Justice Department acknowledges that this position reflects a “change in governmental policy,” and it has persuaded some judges to accept its arguments, most recently scoring a victory in the federal appeals court in Philadelphia. …

In 2002, at a legal symposium, the Bush administration outlined plans for “F.D.A. involvement in product liability lawsuits,” and it has been methodically pursuing that strategy. …

The Bush administration argued that federal law barred such claims because the device had been produced according to federal specifications. In its briefs, the administration conceded that “the views stated here differ from the views that the government advanced in 1997,” in the United States Supreme Court. …

Some judges and legal experts disagree. Erwin Chemerinsky,a constitutional scholar at the University of Southern California Law School, said, “The Supreme Court has expressly ruled that F.D.A. regulation does not pre-empt state law and local regulation” in all cases…

FDA’s mission and what they regulate and don’t regulate. Medtronic v Lohr (dissent), Medical Device Amendments of 1976, and preemption rides again…tort reform (albeit products liability) à la supramacy and preemption v. federalism.

I must go with Justice O’Connor’s dissent:

“To summarize, I conclude that §360k(a)’s term “requirement” encompasses state common law claims. Because the statutory language does not indicate that a “requirement” must be “specific,” either to pre-empt or be pre-empted, I conclude that a state common law claim is pre-empted if it would impose “any requirement” “which is different from, or in addition to,” any requirement applicable to the device under the FDCA. I would affirm the judgment of the Court of Appeals that the Lohrs’ design claim is not pre-empted (9-0) by the MDA, and that the manufacture and failure to warn claims are pre-empted (5-4); I would reverse the judgment of the Court of Appeals that the MDA pre-empts a common law claim alleging violation of federal requirements.”

Coalition Reform

Building a Better Health Care System: Specifications for Reform | NCHC | 7.20.04

• Press Release (PDF)
• Report (PDF)
• Executive Summary (PDF)
• The Coalition’s specifications advance five principles:
  1. Health Care Coverage for All
  2. Cost Management
  3. Improvement of Health Care Quality and Safety
  4. Equitable Financing
  5. Simplified Administration

Billion Recoupment

More Scruggles

Not-For-Profit Hospitals Class Action Litigation Press Release

Not-For-Profit Hospitals Class Action Litigation Press Release

Date: Thursday, July 22, 2004 at 2:30 PM CDT
Contact: Richard Scruggs
Scruggs Law Firm, P.A.
(662) 281-1212

Nonprofit Hospital Litigation Attorneys Respond to Statement by the American Hospital Association

For Immediate Release

Oxford, Mississippi, (July 22, 2004) — In response to a statement issued by the American Hospital Association (“AHA”), a co-defendant in class action lawsuits brought by uninsured patients against nonprofit hospital systems and hospitals for failing to fulfill their government obligations to provide charitable healthcare to uninsured patients and overcharging uninsured patients significantly more than any other patient group, the lawyers for the plaintiffs today stated:

“The press statement by the defendant AHA is just another example of the spin put out by this paid co-defendant of the nonprofit hospitals to deflect the focus away from the simple fact that many nonprofit hospital systems and hospitals are not carrying out their government obligations to provide charitable healthcare to uninsured patients and are, in fact, charging uninsured patients inflated rates that are above and beyond what they charge any other patient group. In the AHA statement, its president Dick Davidson says, among other things, that the AHA is “seeking solutions to the issue of helping hospitals serve the uninsured” and that the litigation is “diverting focus away from the real issue of how we as a nation are going to extend healthcare coverage to all Americans.”

With respect to “seeking solutions” the co-defendant AHA knows full well that the defendant nonprofit hospital systems and hospitals simply have to operate as nonprofits and fulfill their government obligations and they know that they have been perpetuating the practice of overcharging uninsured patients. With regard to “extended health coverage to all Americans”, we question whether this empty call by co-defendant AHA is out of compassion for the uninsured patients that the defendants have so aggressively sued for collection or simply evidence of the desire of the defendants to divert attention away from their malfeasance and seek to be paid for all care rendered, increase their profits and have no reason to provide charity care at all.

Noticeably and painfully absent from the statement by co-defendant AHA is any real defense of the wrongdoings perpetrated against the uninsured patients by the defendant nonprofit hospital systems and hospitals and the fact that, despite violating their government obligations to provide charitable healthcare to the uninsured, they are continuing receive enormous economic benefits from the substantial tax exemptions associated with these obligations. Perhaps the AHA must “spin” in this fashion because the AHA receives millions of dollars in dues annually from its members and that, according to its Form 990, the AHA’s president receives well-over $1 million in compensation annually as the paid agent of hospitals, including the defendant nonprofit hospital systems and hospitals.”

Digital Wax & Wane

Not-For-Profit Hospitals Class Action Litigation Press Release

Not-For-Profit Hospitals Class Action Litigation Press Release

Date: Wednesday, July 21, 2004 at 1:30 PM CDT
Contact: Richard Scruggs
Scruggs Law Firm, P.A.
(662) 281-1212

American Hospital Association Charged as a Defendant in Class Action Lawsuits Brought by Uninsured Patients Against Nonprofit Hospital Systems and Hospitals Eight New Class Action Lawsuits Filed Today by Uninsured Patients Against Nonprofit Hospital Systems and Hospitals in Florida, Georgia, Michigan, New Mexico, New York, Ohio and Pennsylvania

– 39 Class Action Litigations By Uninsured Patients Underway In 20 States –

For Immediate Release

Oxford, Mississippi, (July 21, 2004) — The American Hospital Association (“AHA”), the hospital industry’s trade association, has been charged as a defendant in class action lawsuits brought by uninsured patients against nonprofit hospital systems and hospitals in Florida, Georgia, Michigan, New Mexico, New York, Ohio and Pennsylvania. In addition to naming the AHA as a defendant in eight new class action lawsuits, all previous class action lawsuits filed since June 17, 2004, are being amended to also name AHA as a defendant.

These eight new class action lawsuits by uninsured patients also name nonprofit hospital systems and hospitals in Florida, Georgia, Michigan, New Mexico, New York, Ohio and Pennsylvania as defendants. The lawsuits charge that the defendant nonprofit hospital systems and hospitals, working with the AHA, have failed to provide government required charity care to uninsured patients. With the filings of these lawsuits, 39 litigations are underway in 20 states against defendants that control approximately 340 hospitals in aggregate.

The new class action lawsuits that have been or will be filed today by uninsured patients are:

• In Florida: Defendants: Orlando Regional Healthcare System, Inc. and American Hospital Association; United States District Court for the Middle District of Florida Orlando Division; litigation filed by Carlton & Carlton, P.A. and Law Offices of Archie Lamb, LLC;
• In Georgia: Defendants: Northeast Georgia Medical Center and American Hospital Association; United States District Court for the Northern District of Georgia; litigation filed by Vroon & Crongeyer, LLP;
• In Michigan: Defendant: Trinity Health-Michigan, Inc. and Trinity Health Corporation and American Hospital Association; United States District Court for the Eastern District of Michigan; litigation filed by Kelley Cawthorne and Vroon & Crongeyer, LLP;
• Defendant: William Beaumont Hospital and Beaumont Properties, Inc. and American Hospital Association; United States District Court for the Eastern District of Michigan; litigation filed by Kelley Cawthorne and Vroon & Crongeyer, LLP;
• In New Mexico: Defendant: Presbyterian Healthcare Services and American Hospital Association; United States District Court for the District of New Mexico; litigation filed by Moody & Warner, P.C., Law Offices of Archie Lamb, LLC and E. Kirk Wood, Esq.;
• In New York: Defendant: Long Island Jewish Medical Center, North Shore University Hospital in Manhasset, North Shore-Long Island Jewish Health System, Inc., and American Hospital Association; United States District Court Eastern District of New York; litigation filed by Bernstein, Liebhard & Lifshitz, LLP, Vroon & Crongeyer, LLP and Barrett Law Office, P.A.;
• In Ohio: Defendant: ProMedica Health System, Inc. and American Hospital Association; United States District Court for the Northern District of Ohio, Western Division; litigation filed by Weisman, Kennedy & Berris Co., L.P.A. and Zoll & Kranz, LLC;
• In Pennsylvania: Defendant: Albert Einstein Medical Center, Albert Einstein Healthcare Network, Jefferson Health System and American Hospital Association; United States District Court for the Eastern District of Pennsylvania; litigation filed by Law Offices Bernard M. Gross, P.C. and Vroon & Crongeyer, LLP and Bernstein Liebhard & Lifshitz, LLP.

As described in the lawsuits, co-defendant AHA has fashioned and promoted to, among others, the administrations and Boards of Trustees of nonprofit hospital systems and hospitals, business methods calculated to defeat the rights of uninsured patients even though the co-defendant nonprofit hospital systems and hospitals continue to amass enormous economic benefits from tax exemptions related to providing charitable healthcare to this patient class. Among other things, the AHA encourages its co-defendant nonprofit hospital systems and hospitals, to perform “wallet biopsies” on uninsured patients. Through these “wallet biopsies”, the AHA’s co-defendants’ priorities are not necessarily on the appropriate healthcare treatment for the uninsured patient but rather on gouging the uninsured patient with exorbitantly inflated prices, in some cases up to 300 percent more than for insured patients. If and when the uninsured patient can’t pay, the co-defendant nonprofit hospital systems and hospitals often complete the procedure by intimidating and harassing the uninsured patient through goon-like and predatory collection tactics that frequently scar the patient for life, including the trauma of personal bankruptcy. These “wallet biopsies” and collection tactics by the co-defendant nonprofit hospital systems and hospitals, which are advised by the co-defendant AHA, have both the purpose and effect, in many instances, of successfully discouraging the uninsured patient from ever again seeking healthcare at the defendant nonprofit hospital. This, in turn, enables the defendant nonprofit hospital to further avoid its government obligation to provide charitable healthcare to the uninsured.

Furthermore, the AHA schemes side-by-side with its co-defendants, in implementing numerous other charitable healthcare avoidance tactics, including working with the co-defendant nonprofit hospital systems and hospitals with respect to manipulative accounting techniques and “spinning” the public and governmental authorities away from the wrongdoings being perpetrated by its co-defendants on uninsured patients. With defendant AHA’s involvement, its co-defendant nonprofit hospital systems and hospitals have for years siphoned from the country’s financially hard-pressed healthcare systems, local communities and states potentially trillions of dollars, according to some estimates.

These new class action lawsuits detail that the AHA’s co-defendant hospital systems and hospitals require uninsured patients to pay unfair and unreasonable healthcare prices that are far in excess of the discounted amounts accepted by these same defendants from insured patients, including those who are privately insured or use third party payors such as Medicare and Medicaid. The facts, as demonstrated in the lawsuits, are clear. The defendant nonprofit hospital systems and hospitals force uninsured patients to pay the “gross” or “sticker” price for healthcare. Consequently, and in direct contradiction of their missions and government obligations, the defendants make the uninsured patients, the patient group that can least afford such expenditures, to pay full excessive healthcare costs.

To learn more about the class action lawsuits by uninsured patients against nonprofit hospital systems and nonprofit hospitals, please visit www.nfplitigation.com.

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