Vested Interest - News and Notes - October 2003 Issue

Controlling Discovery Costs

Corporate counsel involved in litigation have long been frustrated by paying for document retrieval and review by junior associates and paralegals, but the idea of paying e-discovery vendors to process electronic documents into searchable databases is a 21st century aggravation. While the Federal Rules of Civil Procedure presume that the producing party bears discovery costs, recent jurisprudence has moved away from this presumption when it comes to electronic discovery, making it possible for producing parties to shift the costs to the requesting parties, especially in cases where data is inaccessible. This trend could potentially save corporations millions of dollars. One important case in this line of decisions was decided in early 2002. In Rowe Entertainment Inc. v. The William Morris Agency Inc, a U.S. magistrate judge held that "it is not enough to say that because a party retained electronic information, it should necessarily bear the cost of producing it." Employing an eight-factor analysis, he ordered the plaintiffs to bear the costs of producing the emails. The Rowe factors can often result in a finding that the costs of electronic discovery should be shifted to the requesting party. (ATLA Law News Digest – August 28, 2003)

Side Air Bags Should Shield Head

Side air bags that protect the head, chest and abdomen cut the risk of death in side crashes nearly in half, according to insurance industry research. But when the side air bags protect only the torso, not the head, the risk of death is reduced by just 10%, says the Insurance Institute for Highway Safety (IIHS). The institute’s study, based on actual crashes in 1997-2002 cars, is the first to estimate the effectiveness of side air bags. It is particularly important now, because even though side air bags are increasingly available on new cars, the types of bags offered vary widely. Additionally, many of the side air bags offered are not standard equipment. Of 2004 model-year vehicles, 47% offered head-protecting side air bags, but only 27% were provided as standard equipment. (ATLA Law News Digest – August 28, 2003)

Mercury Vaccines Not Linked to Autism

According to an analysis of three decades of data, autism rates in Denmark do not appear to be linked to thimerosal, a mercury-containing preservative once added to some childhood vaccines. The Danish researchers examined data on 956 children diagnosed with autism from 1971 to 2000. They said the autism incidence rate climbed steadily from less than one child per 10,000 in 1990 to nearly 5 per 10,000 in 1999, seven years after thimerosal was removed from vaccines in Denmark. The lead author of the study said that if thimerosal was an important cause of autism, we should see a decline in autism rates, not an increase. (Chicago Sun-Times – September 2, 2003)

Emergency Rooms Get Eased Rules on Patient Care

The Bush administration is relaxing rules that say hospitals have to examine and treat people who require emergency medical care, regardless of their ability to pay. Under the new rule, which takes effect on Nov. 10, patients might find it more difficult to obtain certain types of emergency care at some hospitals or clinics that hospitals own and operate. The new rule makes clear that hospitals need not have specialists "on call" around the clock. Some patients might have more difficulty winning damages in court for injuries caused by violations of the federal standards. "The overall effect of this final rule will be to reduce the compliance burden for hospitals and physicians," the administration says in a preamble to the regulation, published September 9th in The Federal Register. The administration drafted the new rule after hearing complaints from scores of hospitals and doctors who said the old standards were onerous and confusing, exposed them to suits and fines and encouraged people to seek free care in emergency rooms. (ATLA Law News Digest – September 4, 2003)

Language Translation Errors Beset Hospitals

The nurse ordered an oral antibiotic to clear up the 7-year-old’s ear infection. The mother spoke no English, and a bystander pulled in to translate told her to pour the drug into the girl’s ears. It was one of dozens of dangerous translation errors one doctor uncovered when he taped exams of 70 Spanish-speaking children in some Boston emergency rooms and clinics. That’s just examining the nation’s most common foreign language. About 21 million people in the United States speak limited or no English, 50 percent more than a decade ago, and health workers are struggling to care for them. Unable to hire an interpreter for every language, they’re trying creative methods: volunteer translator clubs, telephone interpreters, teaching foreign phrases to doctors and hiring bilingual nurses, clerks, even janitors who can translate in a pinch. (ATLA Law News Digest – September 4, 2003)

Business Groups Sound Alarm on Ergonomics

With little fanfare, OSHA has again started citing employers for not sufficiently protecting workers from ergonomic injuries. The move has alarmed business groups that successfully lobbied in 2001 to get tough rules aimed at combating such injuries repealed. The Labor Department agency has issued 11 citations this year for workplace practices that it says could cause so-called musculoskeletal disorders - muscle, nerve and joint injuries that can result from repetitive tasks. Under pressure from labor unions, the federal government has been wrestling with how to reduce ergonomics-related injuries since the 1980s. Though no federal rules specifically target such injuries, OSHA always has had the power to issue ergonomics-related citations under the federal occupational safety law’s so-called general duty clause, which requires employers to maintain safe workplaces even absent specific rules. (ATLA Law News Digest – September 11, 2003)

Latest GAO Report Denies Med Mal Crisis;
Says AMA and Others Misled Public, Legislators, Media, and Doctors

The latest report of the non-partisan General Accounting Office proves that the supposed "crisis" of access to medical care as a result of medical malpractice insurance premium increases, as alleged by the AMA, the insurance industry, and some politicians, doesn’t exist or has been extremely overblown. The report Implications of Rising Premiums on Access to Heath Care, GAO-03-836, August 2003, was requested by three House Republican leaders. The comprehensive analysis suggests that the AMA, which had sought to delay release of the report until it could influence data, misled the American people, state and federal legislators, the news media and even doctors. "The problems we confirmed were limited to scattered, often rural, locations and in most cases providers identified long-standing factors in addition to malpractice pressures that affected the availability of services," said the report. "We also determined that many of the reported physician actions and hospital-based service reductions were not substantiated or did not widely affect access to health care." For a copy of the report, go to www.gao.gov. For an analysis of the report by the Center for Justice and Democracy, go to www.centerjd.org.

How to Keep the Hospital from Making You Sicker

Complications from surgery that were once easily treatable have become increasingly difficult to handle. Patients who develop surgical-site infections are 60% more likely to spend time in an intensive-care unit, five times more likely to be readmitted to the hospital and twice as likely to die than patients who don’t get infections. For the past four years, the government has had in place, and almost every major surgical society has endorsed, simple guidelines to help hospitals and doctors prevent them. Yet, recent studies show that in anywhere from 25% to 50% of surgeries, doctors aren’t following the most basic prevention steps. The Centers for Disease Control, which issued the guidelines in 1999, and the Center for Medicare and Medicaid Services have joined forces in a far-reaching prevention effort. The guidelines, available at http://www.surgicalinfectionprevention.org, spell out the recommended timing and types of antibiotics for most major surgeries. (ATLA Law News Digest – September 22, 2003)

Malpractice Suits Capped at $750,000 in Texas Vote

Texas voters narrowly approved a constitutional amendment limiting medical malpractice awards. The measure, Proposition 12 - one of 22 amendments on the ballot, all of which won voter approval - was supported by the Texas Medical Association and other healthcare interests, large corporations and the Republican state leadership. Supporters said it would lower medical costs and halt a flight of physicians from Texas. Proposition 12 was opposed by trial lawyers and a broad sweep of law enforcement, environmental and citizen groups that said it would overturn the Texas Bill of Rights by limiting judicial review of malpractice claims, thereby closing off public access to the courts. An especially controversial aspect of the amendment allows the Legislature to establish caps on other types of lawsuits if it approves them by a three-fifths majority. (ATLA Law News Digest – September 22, 2003)