TOV Injury and Safety Blog

Risks of Zetia were not disclosed

On December 21, the New York Times reported that Merck and Schering-Plough have conducted several studies on the risk of liver disease inherent in its cholesterol-lowering Zetia.  According to the Times, the manufacturers have not disclosed these studies, or the risks identified, to either the FDA or to medical researchers, let alone the public.

     Both Canada and Australia require stronger risk warnings on Zetia than does the FDA, and many physicians feel that while the drug can be appropriate for some patients, it should carry a stronger risk warning, due to the enhanced concern of its combination with the normal risks of statin medicinces.  These doctors feel that the heavy advertising of Zetia on television and in other media with only lukewarm risk warnings is a dis-service to patients with liver function testing that suggests greater concern should be focused on liver risk issues.

     Elsewhere in this blog, we have addressed the issue of a manufacturer's duty to disclose drug study results "promptly", the Bush Administration's refusal to enforce this obligation, and the immunity that is conferred upon drug manufacturers by FDA approval--even if it is granted based upon fraudulent or incomplete research.

A different legal standard for aging seniors?

    The New York Times issue for December 24, 2007, published a provocative examination of the issue of elderly responsibility.  It noted the spate of legislation in various states intended to address "elder abuse" and unethical marketing practices targeting the vulnerable elderly.  These statutes in turn have spawned lawsuits (the Times counted about 700) attempting to hold someone else responsible for financial catastrophes suffered by willing but gullible elderly--some of whom have no clearly documented evidence of any form of dementia.

      The Times noted that most states treat contracts made by young persons nearing adulthood as "voidable" and questions whether we will ultimately decide that long-lived but intellectually dependent seniors must have similar protections.  It also noted, however, that most seniors would be repulsed by the threat of losing their independence and being forced to acquiesce in some form of custodial relationship--either with family or the government.

      The Times' article carefully examined several cases where apparently-capable seniors were persuaded to make dreadful investments or financial decisions, resulting in the total loss of an otherwise secure financial future.  As our population ages and controls an even greater percentage of the country's wealth, this issue will not go away and should receive further thoughtful consideration.

How effective are product recalls?

    Past research has shown great variability in the success of product recalls, but the average recall results in the actual return of about 18 percent of the defective or dangerous products sold.  Most of the remaining eighty percent remain in commerce, although some find their way to landfills.  The latter is an imperfect solution where the defect is toxicity, as with, for example, lead jewelry.  It is a better solution than another regular alternative:  many toxic products are simply re-packaged and shipped to an unregulated third-world market.  Other products end up on e-bay.

       In one month, 1100 of the 100,000 children's gardening tools recalled by Jo-Ann Stores had been returned.  After two months, NO defective Cub Scout badges had been returned to the manufacturer.  Low-priced products, often toys and trinkets, are returned at rates much lower than the "average" of eighteen percent.  The New York Times quoted a figure of only five percent.  Ultimately, the CPSC "recall" system is as defective as the products recalled and a tepid solution for genuine hazards.  A much better system would regulate the products before they are widely disseminated, and provide a more systematic approach to accounting for recalled materials.

Survey from Massachusetts General confirms doctors' reluctance to police profession

   A recent survey from Mass General, one of the nation's most respected health institutions, shed some light on a topic that people in the legal and medical professions already understood:  Doctors don't wish to police their own profession.  The survey was published in the Annals of Internal Medicine.

   The researchers reported a "disturbing reluctance" to report incompetent doctors or serious mistakes.  While the vast majority of 1600 doctors who were consulted acknowledged that they owe a duty to report such matters, nearly half who had directly encountered such situations in the past three years confirmed that they had not made any report.  Our society is replete with situations where co-workers and companions refuse to "rat out" their peers, and doctors are no exception. 

       Sadly, in liability situations where a victim cannot have a "day in court" without a comparable expert's support, this reluctance can mean some tragedies are uncompensated and other victims must rely upon "professional witnesses" with diminshed credibility.  A decade-old Harvard study confirmed that about 7 out of 8 malpractice events are never even recognized by the victim or his family--or if recognized, no claim is made.

      Other disturbing findings included the fact that a large majority of physicians reported that they would refer patients to an imaging facility in which they had invested--a practice considered unethical in the legal profession due to the potential conflict of interest--and one-quarter of respondents said they would not disclose their financial conflict of interest to patients.  That, also, would be considered an ethical violation among lawyers.

Free dental care in Kentucky

    Dr. Edwin Smith has spent about $150,000.00 of his own money to equip a mobile van to provide free dental care in rural areas of Kentucky.  As noted elsewhere in this blog, fully ten percent of the residents of Kentucky have NO teeth, due to a combination of too few dentists, a poor, rural population, limitations on Medicaid treatment and reimbursement and lack of dental insurance.  Dr. Smith created "Kids First Dental Care" on the back of an 18-wheeler and leaves his private practice on a weekly basis to provide free check-ups to children in rural areas.  According to health officials, almost half of the state's children between 2 and 4 have untreated cavities and toothache is a leading cause of school absence.  Fatalities have been reported from untreated oral infections.  Fewer than twenty-five percent of the state's dentists will treat Medicaid patients:  they argue that the government pays only about half the "market" value of dental care.

Dental care in rural America

    A recent analysis of dental care in the state of Kentucky constitutes either a sick joke or a sad commentary--depending on how you choose to interpret it.  In an earlier memorandum on this site we talked about "third world dentristy" all too prevalent in America where growth in the number of expensive-to-educate dentists has not kept pace with demand.  Analyzing dental needs in Kentucky adds to this picture.

     According to recent studies, one in ten Kentucky residents have NO TEETH.  This is because about the only dental care Medicaid will pay for is tooth extraction, and the cheapest form of dental care for diseased teeth in uninsured mouths is extraction.  Couple that with a culture slow to abandon smoking and chewing tobacco, and a poor, aging, rural, uninsured population, and you have a recipe for dental disaster.  Compound the problem further with restrictions on the practice of dentistry and denture-manufacture, problems with nutrition and metamphetamine use, and fully ninety-percent of the population have no teeth. 

        Statistics say only half of Kentucky residents have dental insurance.  Most rural residents lack flouridation.   Fewer than 25 percent of the state's dentists accept Medicaid patients, and Medicaid sacrificed all orthodontic care in the state in order to increase Medicaid benefits to approximately fifty percent of "market" rate among dentists.

Mortgage reform

  The Illinois Attorney General has taken an active role in investigating and prosecuting some of the more blatant abuses that have fed the mortgage and foreclosure crises.  The Michigan Attorney General, a captive of the Chamber of Commerce, has done virtually nothing to protect Michigan consumers, despite the fact that Michigan is one of the states hardest hit by the mortgage crisis.

    One of the most abusive and unscrupulous practices uncovered in Illinois was the so-called pay option adjustable rate mortgage.  It allowed consumers to pay only a fraction of the actual interest charged--thus resulting in a loan that grew each month and a constantly increasing mortgage balance.  Both Countrywide Financial and a company called One Source have been implicated in this scandal. 

     Another procedure under attack is the sale of mortgages which charge enormous penalties if a borrower attempts to pre-pay the balance.  Thus, if the adjustable rate increases above market levels, the consumer is trapped in the high rate mortgage and cannot negotiate a new loan at competitive rates without paying charges that may be as high as $10,000.00.  The Bush Administration and Congress have talked about addressing this problem, but their proposed solution would allow such pre-payment penalties for up to five years--even though many adjustable rate mortgages can be adjusted upward in the first month after the mortgage is signed!

     In an earlier case, the Illinois Attorney General forced Ameriquest, a large national lender, to pay $295 million dollars to consumers to compensate for similar abusive practices.  Unfortunately, when we elect arch conservatives to the office of Attorney General in Michigan, we can be assured that we will not benefit from this kind of aggressive consumer protection.

Health insurance reform

  An insurance industry spokesman acknowledged in a public press release this month that health coverage in this country needs to be reformed, and offered a band-aid suggestion to improve coverage for the 47 million people who do not have it.  Apparently acting in response to the dozen or so states who are making dramatic reforms that might ultimately make health insurers irrelevant and the growing movement toward universal health coverage, the industry is suggesting minor reforms that would improve the ability of some individuals to buy or maintain coverage.  In most cases, the industry's proposed response is to require states to subsidize coverage for expensive individuals or to require healthy individuals to purchase coverage that will underwrite other, more expensive [usually older] insureds.

       While there may be a need for the latter forms of response, frankly, we don't see why a third-party health insurer need be involved at all:  the presence of third-party insurers merely imposes an enormous administrative cost and interference between the payors and service providers.   We think the smartest thing that has been said on this topic lately was John Edwards' frustrated claim that "the American health care system is broken because wealthy insurance corporations and their lobbyists have rigged the system against the American people." 

      With the cost of health coverage for a family running in the neighborhood of $1500.00 per month, per family, the assumption of employer-provided health coverage is becoming a myth for many and an anchor on the few employers who are struggling to preserve coverage.  Something must be done before the cost of coverage strangles all American employers who must add this $20,000 dollar annual expense to the cost of products which must compete in the international market.  Not long ago, a major auto manufacturer moved its new plant from Detroit out of the U.S., in order to assure that a foreign government would cover the cost of health care:  it moved the new plant accross the Detroit River to Windsor, eliminating another few thousand middle class jobs from the Michigan and American economies.

Used football helmets

     Many people do not realize that most protective headgear must be replaced or refurbished after one or more serious impacts.  Many bicycle helmets, for example, are safe for only one significant impact and must be replaced immediately after any incident.  Even without a serious impact, to be effective, many helmets must be replaced or refurbished after several years of wear.

     A Pennsylvania company called Circle Systems, Inc. refurbishes used football helmets.  It is one of 30 American companies that inspect and replace worn parts in more than 1.6 million helmets used at virtually every level of amateur football.  By a voluntary protocol, these companies have agreed that all helmets must be tested prior to their return to the field.  Circle Systems is the second-largest company reconditioning about 300,000 helmets a year, and it has been accused of omitting the testing step of most reconditioning helmets.  The company is owned by Schutt Sports, which claims the testing problem is attributable to "inherited" employees who have since left the company.  It agrees that Circle Systems was engaged in a "questionable practice".  The FBI is currently investigating.  If bigwigs with the company did not contribute to the Bush election campaigns, they may be prosecuted to the full extent of the law.

More on defective Medtronic defibrillator leads

   On December 13, the New York Times published an update on its continuing account of defective Medtronic defibrillator leads.    The paper pointed out yet again that replacing these brittle leads, which are prone to failure, costs about $12,000.00, but that Medtronic will contribute only $800.00 to the expense of replacing a lead that has not yet fractured.  Replacement is a painstaking 90 minute procedure fraught with serious potential risks.  The defibrillator market is worth 5.6 million dollars annually, internationally, with much of the profit originating in the U.S. 

    In response to brittleness identified in the Fidelis leads, Medtronic has returned to selling the older, but more reliable Quattro defibrillator lead.  By its response to the failure of Fidilis leads, Medtronic has been allowed to capture enormous profit from selling the defibrillators and leads, while leaving the detritus of its product failures to be covered by individual patients, their insurers, or the federal government through Medicare and Medicaid.  Of course, for Michigan patients, if the device was approved by the FDA, the consumer has no recourse, regardless of failure, and regardless of negligence in design or fraud in covering up the problem.

Counterfeit drugs from overseas

    A recent study by the New York Times and others identified a serious problem with regulating counterfeit drugs from overseas.  For example in May of 2006, British authorities identified and intercepted a shipment of more than 800 pounds of illicit drugs which were counterfeits of well-known drugs sold by Merck, Novartis, AstraZeneca, Pfizer and Procter & Gamble.  The drugs involved were life-supporting medications for treating high blood pressure, cholestrol, acid reflux, cancer, and other serious medical problems.  Many of the drugs were contaminated.  In July of '07 a half million fake Plavix pills that originated in Mauritius were seized in Dubai's free trade zone.  In June, Panamanian authorities seized a warehouse full of contraband internet pharmaceuticals.

       Government and pharmaceutical representatives maintain that the trade in unregulated, counterfeit pharmaceuticals has blossomed with the creation of free trade zones around the world.  The enormous mark-up of prices for medicines in the United States, coupled with the capacity to "launder" and mis-label pharmaceuticals in various free-trade zones, has created an international criminal enterprise worth billions of dollars, supplying American consumers with medications that are dirt cheap and often dirty.  Frequently, they are provided with false packaging suggesting a provenance in Canada. 

     Currently, Canada provides almost 800 million dollars per year worth of low-cost meds to two million uninsured or underinsured Americans who cannot afford artificially inflated American prices.  When large pharmaceutical companies such as Pfizer and Merck attempted to eliminate the Canadians' supply of medications, Canadian firms were forced to buy indirectly through other overseas suppliers and have now found their supply chain to be contaminated.    Many of the unregulated and contaminated pharmaceuticals have been traced to the illicit drug trade in China which was described at length in a 2007 New York Times investigation.

Toxic fish from China

     Fish farming has become an enormous international business, and nowhere is it bigger than in China, where 115 billion pounds of farmed fish were produced in 2006.  As food imports from China increase, it is becoming more apparent that the safety of this important supply of imported food cannot be assumed.    The New York Times reported on December 15, 2007, that much of the fish farming that produces Chinese exports is carried on in bodies of water that are polluted by all forms of toxins:  human waste, industrial byproducts, illegal veterinary drugs and pesticides are all introduced into the water supply--either inadvertently or purposely--resulting in exposure to various forms of cancer-causing substances and bacteria.  Currently the regulatory scheme to detect and control these problems does not exist in China and is not being implemented by food exporters or importers.

        While Thailand--another major supplier of fish to the U.S. market--has experienced only two fish rejections at the U.S. border this year, a single Chines supplier, Fuqing, has experienced 43 rejections in 2007 alone.  In response, the U.S. and Chinese governments recently signed a half-measure that would begin to regulate the conditions under which food farming is conducted.  Unfortunately, given the magnitude of the problem, and the manner in which Chinese government authorities elevate production over environment in all respects, it is unlikely that recent agreements will have a significant impact.

Treatment of widows and children

   Sometimes we lose track of how humane our culture is when contrasted with much of the rest of the world.  It is always a disaster, emotionally, when a father and husband dies--particularly if the family is young.  In the United States, however, we have several safety nets in place that at least alleviate the suffering of the family on a financial basis.  Between Social Security, Workers Compensation, life insurance, welfare and the potential of wrongful death recoveries, many families are at least maintained at poverty level.  A few are even able to maintain their pre-existing standard of living.

     This is not the case for widows and children in much of the world.  Although it is exceedingly rare for a widow to throw herself on her husband's funeral pyre, as happened just five years ago in India, it is still true that the plight of many widows and children is desparate after the death of a husband and father.  In rural Nepal and India, widows are still expected to shave their heads, sleep on the floor and avoid being seen by men for the rest of their lives:  what a shameful waste.  Self-immolation wouldn't seem so desparate when compared with a lifetime that bereft of normality.

     In Afghanistan, where nearly two million women have lost husbands in decades of civil war, widows have no means of supporting themeselves or their children.  In Tanzania, they may well be denied the opportunity to inherit their husband's property.  It is estimated by the United Nations that there are 30 million widows in India struggling to provide for themselves and their children, under various legal and cultural limitations and degradations.  Some estimate that 100 women worldwide face similar hostility and indignities.

     While we work to better the condition of widows and children worldwide, we must also celebrate and preserve what we have created in this country.  We must be vigilant to protect this modest safety net we have created from the pressures of industry and commerce which would--left unchecked--relegate the protection of workers and their families to churchs and non-governmental charities and other "thousands of points of light".

Status of hospital "companions"

    Michigan's Court of Appeals was recently required to address the status of persons who accompany a patient to the hospital.  In Dobrowa v. Sparrow Hospital, the attorneys for the hospital's insurer had asked the court to dismiss a case arising out of the malfunction of the hospital's electric door, on the grounds that the hospital merely "tolerated" persons who accompany patients.   Sparrow asked the court to rule that these persons are not "invitees" and are only one step above trespassers in terms of the hospital's duty to make the premises safe.

    The trial court and the Court of Appeals rejected this approach, at least with regard to any person who accompanies a patient in order to assist him or her.  The Court ruled that a "mere companion" would not be present for the Hospital's commercial benefit, and therefore the liability rules recently established by the activist conservative majority of the Supreme Court would preclude them from being treated as "invitees".   Thus, the hospital does not owe "mere companions" a duty to investigate and detect hazardous conditions on the premises.  On the other hand, if the patient required the assistance of the companion to drive, dress, or otherwise assist her or him through the hospital experience, the companion served a commercial interest of the hospital and must be treated as an invitee.

    While we applaud the Court of Appeals' recognition that companions providing assistance serve a commercial purpose for a hospital, we think that denying similar protection to members of the public invited to enter public places of business is dreadful public policy.   It is not too much to ask that public buildings be made safe for people invited to enter; persons who legally enter these buildings on reasonable grounds should be owed the same reasonable duty of care, regardless of the particularities of their invitation.  If the visitor is not a trespasser and the building is held open to the public, the owner of the building should owe a reasonable duty to identify and eliminate dangerous conditions.   Any other public policy discourages property owners from taking reasonable steps to prevent injuries and is a step back, two generations, in public safety.

Activist Supreme Court majority overturns its own decision

   In the year 2000, the Michigan Supreme Court addressed the statute of limitations involving malpractice and wrongful death, in the context of the new requirement to provide Notice of Intent to Sue.  The Court held in the Omelenchuk case that if the Personal Representative of an Estate filed a Notice of Intent to Sue within the statutory time limit, the Notice would "toll" (or delay) the expiration of the statute of limitations for the six-month time period after the Notice was given, (and during which suit cannot be filed).  The alternative, as a practical matter, was to conclude that adoption of the Notice of Intent and six-month waiting period by the Legislature resulted in the inadvertent reduction of the statute of limitations by the duration of the six-month waiting period.

      Less than four years later, after Governor Engler had stuffed the Court with his arch-conservative appointees, the Supreme Court chose to reconsider this issue, and overturned the Omelenchuk decision in Waltz v. Wyse.  This kind of abrupt reversal of precedent is precisely what most people consider to be inappropriate "judicial activism".    The conservative majority of the Court then summarily suggested in two later opinions that the Waltz decision overruling Omelenchuk should be applied with full retroactivity--in other words, to cases that had applied the Omelenchuk analysis and relied upon it to delay filing:  if practitioners had [wrongly] assumed that the Supreme Court's holding was law and hadn't anticipated an activist court re-considering and re-writing the law four years later, their clients would be punished for their lawyer's lack of prescience.

        Several Court of Appeals Judges, particularly including the veteran practitioner Peter D. O'Connell, refused to accept this unjust interpretation and wrote opinions in which they refused to countenance full retroactivity and punishment of clients whose attorneys had reasonably relied upon "settled law".  The intellectual acuity and courage of these Court of Appeals' judges was rewarded this week when the unanimous Supreme Court recognized that applying the change in the law retroactively contradicted Michigan jurisprudence.  While this latest decision will rescue about fifty claimants from an unfair outcome, many litigants whose cases were rejected in the interim will not regain a "day in court".  The decisions in their cases are either too stale to re-open or they gave up on the work and expense of what appeared to be a hopeless appeal.

Social Security Disability backlog

  The New York Times on December 10 reported that the backlog in Social Security Disability hearings has reached an all-time high.  As the federal goverment has been further stressed by the Iraq War and "starve-the-beast" politicians attempting to minimize government services, the SSD backlog has lengthened, resulting in a wait that may reach three years just to secure a decision.  In addition, the Agency apparently has such a political perspective  against recognizing disabilty that more than two-thirds of those claimants who appeal their denial of disability prevail on appeal before a neutral Judge.

  Our firm doesn't handle Social Security Disability claims, however, many of our clients are so badly injured that they qualify for SSD.   In cases where a client's entitlement is disputed, we work with one of several attorneys in Northern Michigan who specialize in Social Security hearings.  We have watched the process described by the NYT unfold on a consistent basis for more than a decade.  In the year 2000 when the current Bush was elected, the SS backlog was 311,000 cases.  Today it is more than 755,000.

    Persons who are unfamiliar with the Social Security system should realize that the standard for securing disability payments is set intentionally high to disqualify and discourage persons who might malinger.  Recipients must prove that a disability disqualifies them from "any kind of substantial work" for at least 12 months or will "result in death".  If a professional, for example, could work as a convenience store clerk or bagging groceries, he would be disqualified from SSD.  Claimants who have paid in to the system receive approximately fifty percent higher benefits than do severely disabled children or the poor (currently about $1,000.00 per month rather than $637.00 per month).

   About 2.5 million people apply for disability each year and two-thirds are refused after a review of their medical and employment records.  Approximately one-half million file appeals and about two-thirds of appellants eventually are determined to be qualified.    The average length of appeal in the State of New York is 21 months (average---so half of claimants wait even longer) and half of the appellants are destitute and receive welfare benefits during the pendency.   For the two-thirds of applicants who legitimately meet the high standard of disability, the loss of dignity that occurs during this three-year process is unconscionable.  Congress recently appropriated additional money to fund an increase in the 1,000 Administrative Judges who hear these appeals, however the increase was vetoed by President Bush.

      If you know of a northern Michigan resident who is struggling with the SSD system without the help of a lawyer, we will be glad to refer you to an ethical and compassionate attorney who specializes in these cases.

Rating physicians

     The State of New York has been active in the analysis of rating systems for doctors.  Many insurers do actively rate physicians, however, the ratings are often based not on national standards or measures of effectiveness, but rather on how well the control expenses.  In other words, the insurer's highest-ranked doctors are, unbeknownst to consumers, simply the cheapest.

      New York Attorney General Andrew Cuomo has reached agreement with a number of insurers, requiring them to disclose publicly the basis of their rating system and to include factors other than cost.  This approach has been endorsed by a number of consumer groups and medical organizations.  Neither approach would include a clearinghouse for malpractice claims or disciplinary actions which are frequently a matter of confidential hospital privileging or peer review:  neither publicly reportable nor admissible in court. 

        Unfortunately, many states (including Michigan) have virtually avoided the topic of physician rating or reporting, altogether.   Doctors and patients deserve a reporting system that is accurate and inclusive.   Certainly consumers should not be misled by an insurance-based system that considers only cost.

Nalgene bottles recalled in Canada

    After months of concern over the potential hormonal-disrupting effect of the chemical base in Nalgene bottles, Canadian authorities have removed them from retail shelves.  The active ingredient that allows the bottles to be constructed with clear, unbreakable plastic has been documented  over several decades to influence hormonal balance.  The bottles' manufacturer argues that the release of this chemical to consumers is inconsequential, however, Canadian authorities decided not to allow the risk. 

    Bans have been considered by local American authorities, but threatened legal action by the manufacturing industry has thus far precluded formal action.  There is no substitute for the use of the chemical whose safety is disputed, and critics recognize that using "one-time-only" soft plastic bottles is a substantial environmental nightmare in its own right.

Meat processing safety

    2007 has seen a near-record number of beef recalls of a record quantity of meat.  Sadly, it has involved not only the marginal or small producers or the corner-cutting operations such as Topps Meat of New Jersey.  Topps was a family-owned company that was purchased by investors who attempted to increase profits by minimizing safety issues, promptly shipped almost 22 million pounds of tainted hamburger that had to be recalled, and then declared bankruptcy in November of 2007.  Recalls have also been made by producers such as Tyson Fresh Meats, who have been recognized as leaders in the industry, in terms of installing devices and procedures to attempt to eliminate E-coli toxins, in particular.

   E-coli is present in the lower digestive system of cows (and people) and is not usually dangerous.  One strain of E-coli is dangerous, however, and if an animal carcass is contaminated with fecal matter from the animal's hyde or intestines, the toxic strain of E-coli can cause illness or death.  Hamburger is the most common cause of illness because the toxin from a single source can be disseminated throughout enormous batches of meat and then not  destroyed by thorough heating.  Meat products that are sold and prepared without being ground are more effectively de-contaminated by surface heat, even if not fully cooked.

   Producers like Tyson have adopted procedures that involve cleaning the hydes of animals prior to slaughter, and then thorough steam-cleaning and acid washing of carcasses during processing.  Unfortunately, the producers themselves and other food safety experts acknowledge that these procedures are not fail-safe (and this year's recalls confirm that conclusion).  Irradiation of meat would kill the E-coli toxins, however, producers are wary of the impact of irradiation on taste and marketing.  If meat-processing cannot be failsafe at the best of American producers, you can imagine the risk involved in purchasing meat from third-world producers with less sophisticated regulation and production. 

Airline travel safety and "runway incursions"

   The Associated Press reported yesterday that there were a near-record number of "runway incursions" during the last fiscal year.  A runway incursion is exactly what it sounds like:  a close call between two airplanes, where one has nearly  caused a collision by interfering with the other's use of a runway.   There are roughly six of these events for every one million air traffic operations, and some incursions left one airliner as close as 35 feet from another.  25 to 30 of these incursions each year are characterized as "serious" because a collision is so narrowly averted.

        This near-collision rate is another example of the impact of the Iraq War and "starve-the-beasters" on public safety.  The enormous cost of the war has stressed our resources and the public's willingness to be taxed, and the Bush Administration has cut corners in every other aspect of government--partly to reduce the size of government as a matter of philosophy and partly to accommodate the cost of the War.  The result is reduced budgets and staffing for the CPSC, the FDA, the FAA and virtually every other element of the federal government that serves as a watchdog for citizens and consumers.  Critics say that most incursions result from a shortage of air traffic controllers and unreasonable reliance on overtime hours for controllers, along with lack of runway lighting and ground radar control.

        Someone with courage must stand up and acknowledge that the war in the Middle East has costs that go beyond the lives of some of our best young people and the actual military budget.  Every dollar that is spent in Iraq is a dollar that is not being spent on our own infrastracture and our own "intellectual" infrastructure, (i.e., education, in particular, but also alternative energy technology, for example).  Clearly American taxpayers will not make unlimited pledges to fund the government, and demagogues will always be goading taxpayers and voters to "starve the beast".  Every tax dollar must be treated as precious and squeezed for its greatest value:  our massive hemorrhage in Iraq is not frugal, democratic government at work, and it carries real consequences for American citizens.

ERISA Health plan liens

        Many consumers don't realize that if they recover damages for a serious injury, they will probably have to re-pay their health insurer (if they are fortunate enough to still have health insurance) for its out-of-pocket expenses.  This is a completely logical rule and a reasonable response to the high cost of medical care, but the right of reimbursement or subrogation has been taken to an inappropriate extreme by some insurers and courts.

        Historically, the right to be reimbursed was enforced through a legal principle called "subrogation".  If the injury victim had a right to recover for his or her injuries from the at-fault person, that right to collect is transferred to the insurer who actually paid the medical expense.  The health insurer's rights were exactly coextensive with the injury victim's rights, and if any money was collected, the insurer was obligated to pay its share of the related fees and costs necessary to recovery from the at-fault.  The Courts have allowed "reimbursement"  of medical expenses in this manner from the victim's entire recovery, whether the recovery is called wage loss, pain and suffering, a even a spouse's consortium.  Many companies such as Blue Cross-Blue Shield continue to write their contracts to follow these principles, and many insurers will agree to cover their share of fees and expenses, even if their plan does not obligate them to, in order to encourage the victim to seek compensation and share in the recovery.   Historically, a frequent compromise position has involved an agreement between health insurer, victim and counsel to share severely limited resources on an equal, one-third each, basis.

        As medical expenses have made their phenomenal rise and caused a greater hardship for employers, the Courts have begun to recognize an increased right in health insurers to be more aggressive in writing contracts to give the insurer a more extensive right of reimbursement.  Many contracts are now written to allow the health insurer--particularly if it is an employment-based ERISA plan--to recover the entire cost of medical expenses, regardless of limits on the victims' recovery and without sharing in the related legal fees or expenses.  Under these rules, for example, if a wrongdoer has only limited insurance available, or only limited ability to pay for his mistake, the entire recovery to the victim may belong to the health insurer--even if the result is one hundred percent recovery for the insurer and no compensation to a catastrophically injured victim for lost wages, future medical expenses or suffering or loss of quality of life.  This is a far cry from the more nuanced and balanced approach that had been the rule of law.

          The right of an insurer to seek "repayment", "reimbursement" or "subrogation" is usually defined in the employee's Summary Plan Description and more fully in the underlying contract.  If the SPD is not clear on this point, attorney and victim can check the insurer's Form 5500, which is available to the public, or demand a copy of the relevant language from the Plan Administrator under 29 U.S.C. 1024(b)(4).  Various federal circuits have disagreed, but Michigan law is controlled by the Sixth Circuit which currently holds that if an ERISA plan does not provide otherwise, the "default" rule is the "make whole" doctrine, which allows subrogation only where the victim's recovery includes his or her own loss and insurer-paid medical expenses.  Needless to say, most insurers have adequate legal support to assure the most aggressive grab and do not fall in to the "default" category.   If the write their contract to entitle themselves to complete repayment without sharing in fees or costs, the victim's right to wages, future medical expenses, or non-economic damages may be waived even before the catastrophic event.

More overwhelming evidence of lead in toys

        Volunteers and non-profit agencies scrambling to do the work of the Bush Administration have documented overwhelming evidence of lead poisoning in toys on retailer's shelves during the '07 Christmas shopping season.    While the Republican head of the Consumer Product Safety Commission denied that her agency needed the additional funding that had been removed from its budget over the past several years and was restored by Congress last month, her Agency continued to drop the ball in protecting our kids. 

        The American Academy of Pediatrics recommends that toys available to children not contain more than 40 ppm of available lead, due to the known, serious injuries and lifetime damages lead exposure causes.  Recent tests on 1200 children's products, most still on shelves found that 35 percent contain lead levels far above the federal recall standard for lead paint, according to the Associated Press.    Only twenty percent of the products had no evidence of lead or other dangerous chemicals.  One third of the products contained lead levels above 600 ppm:  15 times the recommended level.  The Hannah Montana Pop Star Card Game case tested at 3,056 ppm.  The testing was done by the Michigan-based Ecology Center and the nantional Center for Health, Environment and Justice and related groups in eight other states.

       Thus far in 2007, Mattell has recalled more than 21 million Chinese-made toys.  The tainted products identified yesterday included Hannah Montana card game cases, Go Diego Go! backpacks and Circo brand shoes.  The toys were on shelves at locations suchs as Toys 'R' Us, Wal-Mart and other major retailers.   Interested parents can consult the Consumer Action Guide to Toxic Chemicals in Toys, at http.//www.healthytoys.org.

Government regulation of safety

         The New York Times reported on December 2 that industry groups are panting after the Bush Administration for special favors in anticipation that a Democratic Presidential administration might end their eight years at the governmental trough.  In particular, the Chamber of Commerce, the National Manufacturing Association, the trucking industry, the National Chicken Council and Poultry and Egg Association, to name just a few, are lining up with their hands (or talons?) out, seeking special favors in the last few months of Bush governance.

        What do they want?  Here is the list the NYT compiled from interviews:  Increasing the maximum limit on hours that truckers may drive under federal regulations; blocking roll-over protection for autos passenger compartment roofs; the ability to dump mining debris into streams; greater limitations on the Family Medical Leave Act; eliminating restrictions on ammonia discharge from food factories; exemption from new pollution-control requirements for coal-burning power plants; and protection for drug manufacturers.  Randel Johnson of the Chamber of Commerce confirmed the obvious:  "We want to get this done before the election..."