Although corporate titans insist that Big Business can show more responsibility and not put profit ahead of all else, consumers are getting tough displays of how loath companies can be to owning up to dealing with harms their enterprises can cause or the rapacious pricing of their goods.
The most recent sketchy signals on product liability and costs came from a spectrum of enterprises and their executives, including nursing home owners and operators, a giant furniture maker, and, of course, Big Pharma.
Caveat emptor? Maybe. Or does the corporate ducking, bobbing, and weaving that would make a champion boxer proud also underscore that there are sound reasons for rigorous corporate oversight and regulation by governments, as well as a need for individuals, in keeping with their constitutional rights, to seek justice with medical malpractice and other safety and liability lawsuits in the civil system?
A legal shield extended too far?
Almost from the start of the coronavirus pandemic, health care providers — notably nursing homes — lobbied pro-business lawmakers for legal immunity against civil claims over harms they might cause in what they asserted were unprecedented circumstances. Consumer and patient safety advocates pushed back hard, saying that the experience and common sense of judges and juries would offer businesses sensible safeguards, as they long have, against excessive claims.
But as NPR reported:
“In 27 states, nursing homes have gotten special legal protections during the Covid-19 pandemic. That means in most cases, families can’t sue if someone they love got sick or died at one. The nursing homes say they’re doing the best they can, and they need those legal shields. But that also may stop people whose injuries have nothing to do with Covid from seeking justice in the courts.”
The public radio journalists pointed to a North Carolina case as an important, early test of whether owners and operators of long-term care facilities would seek to stretch their liability shields to try to block a lawsuit involving claims of neglect and abuse unrelated to circumstances involving Covid-19. The case is pending. Here is a slice of the broadcast report, with speakers Ina Jaffe, a reporter, Lisa Howze, the daughter of a nursing home resident, and her lawyer Lisa Todd:
Jaffe: [This case] involves the death of a woman named Palestine Howze. Her daughter Lisa Howze said her mother’s death had nothing to do with the coronavirus. Her mother had a pressure ulcer or bedsore, as they’re commonly known. She’d had it since December of 2018, and it just got worse and worse. It became infected. Lisa Howze said she begged Treyburn Rehabilitation Center to send her mother to the emergency room.
Lisa Howze: But they assured us that they could handle it.
Jaffe: Lisa Howze and her three sisters had their doubts. In their experience, Treyburn Rehabilitation Center didn’t seem to be able to handle much — on a scale of one to five stars, the federal government gives Treyburn just one. It also gets below-average ratings on the ratio of nurses to residents. The government has fined Treyburn almost $190,000 in the past three years.
Howze: We were there a lot. And we found ourselves having to bathe her, just general things they were supposed to do. We’ve come in several times when she hadn’t been fed, her tray just sitting there.
Jaffe: The Howze [family had not] had a lot of luck with nursing homes in general. Treyburn was the third one they tried. But it was close to where they lived, so the sisters could visit often. But that hardly mattered when families were locked out of nursing homes in March. Everything got harder and took longer. Palestine Howze needed specialists in wound care and IV antibiotics. Lisa Howze had her mother’s power of attorney. Again, she begged Treyburn Rehabilitation to send her mother to the emergency room, where they could find the specialist she needed. Again, she was turned down.
Howze: Their excuses were, well, the hospital’s not taking new patients because of Covid. And she would be safer if she stayed here. And the facility is equipped to take care of your mother.
Jaffe: And none of those things turned out to be true. Palestine Howze died at Treyburn Rehabilitation Center on April 14, 2020. One month later, North Carolina passed a sweeping liability shield for long-term care facilities, meaning that nursing homes, with rare exceptions, were immune from lawsuits. The measure was made retroactive to March 10. Lisa House and her sisters decided to sue Treyburn anyway. Elizabeth Todd is their attorney.
Todd: Palestine Howze did not have to die in that way or at that time. And for the legislature to say that the nursing homes need protection in the middle of a pandemic, not the nursing home patients, is outrageous, and it’s unjust.
Jaffe: North Carolina’s immunity law lasts until the pandemic is over. Todd is especially worried that the law gives a free pass to nursing homes with low staffing like Treyburn.
Todd: And so literally, the nursing homes can take their own understaffing, their chronic understaffing, and use it as a shield to prevent any liability at all during the Covid pandemic.
Jaffe: Through their attorneys, Treyburn Rehabilitation Center declined comment. But for many in the long-term care industry, these immunity measures are a welcome relief, says Dave Voepel, CEO of the Arizona Health Care Association. Arizona Governor Doug Ducey was among the first to sign an executive order granting nursing homes and assisted living facilities legal immunity.
Just to be clear, then Senate Majority Leader Mitch McConnell, as recently as in December, stalled what proponents said was a desperately needed pandemic relief measure — a version of which had passed months before in the Democratic House — because he insisted that health providers, including nursing homes, needed a sweeping federal liability immunity component for coronavirus-related lawsuits.
He failed. Still, many residents and their loved ones, as I have written, will struggle for some time with the hard decision whether to sue long-term care facilities over claims of abuse and neglect. This is especially true, as the Covid Tracking Project reported, because:
“Less than 1% of America’s population lives in long-term care facilities, but as of Jan. 28, 2021, this tiny fraction of the country accounts for 36% of US Covid-19 deaths.”
The data experts at this disease-information web site, supported by the Atlantic Magazine, have tallied more than 153,000 deaths at more than 31,000 affected long-term care facilities, with the New York Times, in its last posting (Jan. 21), estimating the residents and staff of these institutions have suffered more than 1.1 million infections.
The evidence increases by the day, by the way, about the already thin and plunging staffing at nursing homes — and the peril this poses for residents. As the U.S. Public Interest Research Group (USPIRG), policy and advocacy group, reported of its findings:
“[T]he number of [long-term care] homes reporting shortages of nurses, aides or clinical staff actually increased from May to December … By early December, 23% of homes reported a shortage of at least one category of direct-care staff. Not only are the shortages a direct result of the Covid-19 pandemic, experts say, but in a circular nightmare, the staff shortages also fueled more Covid outbreaks in nursing homes among residents and staff. More cases mean more stress for workers and more workers who contract the virus or are exposed, which then leads to even more staff shortages. The end result: In many cases, when there aren’t enough workers, patient care suffers.
“All of this comes at the same time nursing homes are still grappling with shortages of masks, gloves and other supplies to protect everyone inside the homes from transmitting the virus. And they’re also trying to navigate shortages of Covid tests, a slow vaccine rollout and high levels of community spread in most parts of the country. Nearly a year into this pandemic, all of these are crises that make every day challenging for nursing home residents and the people trying to care for them. While there are encouraging signs with the arrival of vaccines, the problems facing nursing homes are snowballing, and the situation may erupt before the pandemic subsides, said Dr. Michael Barnett, assistant professor at the Harvard T.H. Chan School of Public Health. ‘It’s a recipe for a collapse in the workforce,’ Barnett said.”
Compulsory signatures on notices about furniture risks
Here is some of what consumers know about certain dressers, clothes storage units, TVs, and bookcases:
Between 2000 and 2019, federal officials have found, 451 children 17 and under were killed when furniture and televisions tipped over on them, while 11,100 kids were treated in hospital emergency rooms for tip-over-related injuries between 2017 and 2019.
One global retailer has racked up a harrowing record with its furniture falling, recalling in 2016 alone 17.3 million units, and taking roughly half its bureaus off the market for failing to meet industry standards. The same company paid $46 million to the parents of a 2-year-old California boy who died in 2017 when he was trapped beneath one the firm’s dressers in his bedroom. Its dressers have been blamed in the deaths of at least nine children and injuries to dozens more.
So, what is the Swedish giant Ikea’s latest response to clear risks with its products?
As USA Today reported, the company is compelling customers, before they buy furniture that has caused tip-over problems before, to sign a statement acknowledging they know they may be taking on risks. They pledge to anchor the pieces to a wall and agree to accept electronic bulletins from the company. They must give up their names and email addresses to do so.
Really, Ikea, that’s your customer service best?
USA Today reported that the firm faces ongoing lawsuits over tip-over furniture cases, as well as new interest in a Democratic administration in oversight by the Consumer Product Safety Commission.
Ikea, and some consumer advocates, say that the signed disclosures are not just part of the company’s attempt to buttress its position in current and potential lawsuits. They are another step in seeking to inform and educate customers, especially to take risk-prevention interventions they might otherwise skip past.
That may not be the exact response that product liability plaintiffs would want, my colleagues and I in the firm, would say, based on our experience in handling cases involving dangerous and defective products and injuries to babies and children.
Families seek financial damages to address harms they suffer and significant costs they can incur in these cases. They also seek justice — including concrete actions so others can avoid their unhappy circumstance. Parents who have lost a child or seen their kids hurt badly do not care about corporations’ desire to keep products with competitive prices if they also maim or kill. An important value of medical malpractice and other liability lawsuits is to get defendants to remedy and end wrongs, not just to increase awareness of them.
U.S. consumers pay through the nose for drugs
With Democrats narrowly controlling the House and Senate, and with a new Democratic president in place, the forecasts are not clear as to what Washington may do about skyrocketing prescription drug prices.
The Biden Administration, among its may challenges, will have to decide the fate of a late administrative move by its predecessors to try to rein in drug costs by indexing some government payments for select products, depending on international prices. This plan took great heat from the last president’s own political supporters, outraged at the mere prospect of foreigners having any sway in domestic policy. Big Pharma also has sued to block the plans and a judge has agreed for now.
The regulatory fuss, however, may spotlight cost disparities in global markets — a tough comparison for American consumers, researchers at the independent RAND Corporation have found. As the think tank reported on results of its experts’ study:
“Prescription drug prices in the United States are significantly higher than in other nations, with prices in the United States averaging 2.56 times those seen in 32 other nations, according to a new RAND Corporation report. The gap between prices in the United States and other countries is even larger for brand-named drugs, with U.S. prices averaging 3.44 times those in comparison nations. The RAND study found that prices for unbranded generic drugs—which account for 84% of drugs sold in the United States by volume but only 12% of U.S. spending—are slightly lower in the United States than in most other nations. ‘Brand-name drugs are the primary driver of the higher prescription drug prices in the United States.’ said Andrew Mulcahy, lead author of the study and a senior health policy researcher at RAND, a nonprofit, nonpartisan research organization. ‘We found consistently high U.S. brand name prices regardless of our methodological decisions.’”
Although they argued that their work would be “useful when developing and targeting policies to address both growth in drug spending and the financial impact of prescription drugs on consumers,” the researchers examined existing prices but not why Americans pay so much more than their global counterparts.
Big Pharma insists this is because makers must spend so much on research, development, advertising, marketing, and distribution in the United States. This is especially true for branded products, of which RAND researcher Mulcahy observed:
“For the generic drugs that make up a large majority of the prescriptions written in the United States, our costs are lower. It’s just for the brand name drugs that we pay through the nose.”
Could it also be that drug makers gouge U.S. consumers because they can? Shouldn’t this be curbed? In my practice, I see not only the harms that patients suffer while seeking medical services, but also their struggles to access and afford safe, efficient, and excellent health care. This has become an ordeal due to the skyrocketing cost, complexity, and uncertainty of treatments and prescription medications, too many of which turn out to be dangerous drugs.
We’ve got a lot of work to do on sky-high prescription drug prices, as well as the safety of nursing homes and consumer products.