12/15/09
State Tort Reforms Don't Lower Premiums for Doctors or Patients
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The American Association for Justice reports that insurance company profits are 24% higher in states with severe restrictions on patients' rights. Here is more:
State tort reforms have provided a boon to insurance companies, leading to record profits while physician and patient premiums continue to skyrocket.
An analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.
The findings also show absolutely no correlation between the cost of malpractice premiums and health insurance premiums. For example, Maine has the ninth lowest malpractice premiums but the fourth highest health insurance premiums. Conversely, Nevada has the third lowest health insurance premiums nationally, but malpractice premiums are the country's ninth highest, despite having a cap in place for eight years.
"The data are clear: tort reform is just another insurance company handout," said American Association for Justice President Anthony Tarricone. "Insurers cried wolf and demanded tort reform, only to pocket the profits and never pass savings onto physicians or patients. While 98,000 people die every year from preventable medical errors, it's nonsensical to limit patients' rights simply to fill insurance company coffers."
The report also shows how medical negligence laws were passed under false pretenses. The medical malpractice insurance industry has seen a 47 percent increase in profitability in the last 10 years. Overblown "reported" losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.
Now that over 30 states have malpractice caps, insurance companies are enjoying extremely high levels of profit. In 2008, the average profit of the 10 largest medical malpractice insurers was higher than 99 percent of Fortune 500 companies and 35 times higher than the Fortune 500 average.
Finally, the report explains the dynamics of the insurance cycle and trends in premium pricing, which are well-known by analysts within the insurance industry. Remarkably, the industry's leaders are already positioning to claim another "tort crisis" and to lobby for even more severe restrictions on patients' rights in 2012.
To view a copy of Insurance Company Handout: How the Industry Used Tort Reform to Increase Profits While Americans' Premiums Soared, visit http://www.justice.org/clips/Insurance_Company_Handout.pdf.
Posted by liz at December 15, 2009 10:21 AM EST
12/14/09
Should North Carolina Raise the Age of Juvenile Court Jurisdiction?
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North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile court system. The jurisdiction of the juvenile court is not open to them, with grave consequences. The approximately 26,000 sixteen- and seventeen-year olds who are convicted each year in North Carolina's criminal court system encounter significant barriers when attempting to secure employment, access higher education, or serve in the military.
The Youth Accountability Planning Task Force, established by the General Assembly in 2009, has been charged with examining the issues of the juvenile age jurisdiction in our state. They are studying whether the current system is best suited for enhancing public safety and lowering rates of repeat offenses.
The Task Force will review current laws, resources and programming to create a plan in which 16 and 17 year olds who commit crimes will be processed in the juvenile justice system.
The Task Force will submit a final report of its findings and recommendations, including legislative, administrative, and funding recommendations, by January 15, 2011, to the General Assembly, the Governor, and the citizens of the State.
Click here for more details. NCAJ members Representative Alice Bordsen and Juvenile Defender Eric Zogry are on the Youth Accountability Task Force. NCAJ Members Jon Cox and Tamar Birckhead are participating in the Program/Benefits and Legal Issues Working Groups respectively.
Posted by liz at December 14, 2009 9:03 AM EST
12/7/09
Congress Aims to Fix "Gross" Age Discrimination
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Age discrimination is difficult to prove because it is rarely direct or blatant. New legislation recognizes this difficulty and aims to clear up recent confusion, and an unfavorable Supreme Court ruling, by allowing employees to circumstantially show discrimination and to prohibit discrimination if it plays any "motivating factor" in an employment decision.
House and Senate leaders have introduced legislation to correct the Supreme Court's recent interpretation of the Age Discrimination in Employment Act of 1967 (ADEA). H.R. 3721, titled the "Protecting Older Workers Against Discrimination Act," was introduced on 10/6/09 in the House by U.S. Rep. Henry Miller, Chairman of the House Education and Labor Committee, as a direct response to the Supreme Court's decision this summer in Gross v. FBL Financial Services, Inc., 557 U.S. __ (2009).
In Gross, the Supreme Court refused to extend a "mixed motives" framework to cases under the ADEA. Mr. Gross was a 54 year old employee with over 30 years of service whose job responsibilities were stripped and handed off to a younger employee. The jury was instructed under the "mixed motives" standard, which allowed Mr. Gross to show age discrimination if age was any "motivating factor" in his employer's decision. The Supreme Court reversed and focused on the fact that, unlike Title VII, the ADEA simply did not contain any "motivating factor" language. Title VII's former prohibition on discrimination "because of" an impermissible factor was amended to now prohibit discrimination if an impermissible factor was a "motivating factor" in the employment decision, but the ADEA was not amended to include the same "motivating factor" language. According to the Court, this indicated that Congress never intended to apply the "motivating factor" mixed motives framework to age discrimination cases. The Court also stated that the "burden shifting framework" in Title VII cases had never applied to the ADEA. Quite simply, "the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." By means of example, an employer motivated 49% by ageist stereotypes, and 51% to cut costs associated with an older employee's higher salary and higher health care costs (likely permissible under Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)), would arguably not violate the ADEA under the Gross analysis because age was not "the" sole "but for" motivation.
H.R. 3721 will clarify the burden of proof required in age discrimination cases by analogizing age to all other impermissible forms of discrimination. If passed, an employer will violate the ADEA if age was any "motivating factor" in an employment decision. The Act also makes it clear that discrimination may be proven by "every method available . . . including that [burden shifting framework] set forth in McDonnell Douglas Corp. v. Green . . . ." Furthermore, the mixed motives "motivating factor" analysis will apply to "all federal laws prohibiting discrimination . . . and retaliation . . . and the Constitution . . . and any federally protected activity" and apply to "all suits pending on or after June 17, 2009." The Act was last assigned to the House Subcommittee on Health, Education, Labor, & Pensions for review on 11/16/2009.
With baby boomers delaying retirement at unprecedented rates in a continuously faltering job market, the Older Workers' Protection Act will at least provide a consistent method to prove age discrimination. It will certainly not change the landscape. But it is a start.
Posted by liz at December 7, 2009 8:24 AM EST
11/30/09
Funding Legal Services for the Poor
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Ensuring access to the courts in our society, even for those who can not afford representation, is central to an effective and fair judicial system. Last month, U.S. Attorney General Eric Holder spoke about the vital need for indigent defense reform in this country. The Hon. Eric H. Holder urged increases in funding for legal services for the poor and described what was at stake if we don't work immediately to address the current state of our public defender networks in the United States.
He called for full engagement of partners at the federal, state and local levels. "As great as our criminal justice system is," he said, "it is imperative that we significantly improve the quality of representation provided to the poor and powerless." [Full text].
All NC Advocates for Justice members work to give a voice to those who need support the most. We thank the Attorney General for championing this cause.
Posted by liz at November 30, 2009 8:31 AM EST
