New Mexico Injury Attorney Blog

A huge nursing home neglect verdict in California leads to further cries for tort reform. A jury awarded a whopping $677 million verdict against Skilled Healthcare Group, Inc. The personal injury class action lawsuit involved 32,000 patients of Skilled Healthcare.

The suit alleged that the standard of care fell well below standards as a result of Skilled Healthcare's deliberate understaffing of its facilities. It was alleged, and goes without saying, that the staffing decisions were profit driven. The company failed to meet the minimal California standards that fall even below federal standards. California requires only 3.2 daily staff hours per patient where federal regulations require 4.1 staff hours per patient.

As a result of the company's profit driven understaffing of its facilities, its patients were severely neglected with even basic needs such as basic hygiene meeting with significant delays. There are many that now herald the case as not a call for better and more responsible elder healthcare, but for tort reform. It is not the suffering of the patients at the hands of profit driven staffing decisions that upsets these folks. Instead, there are many that see the verdict as new grounds for sheltering corporate profits from callous, cruel and inhumane profit driven decision-making. It makes perfect sense that in today's climate that rather than address the suffering of the 32,000 patients that suffered as a result of Skilled Healthcare's neglect, these folks would demonize the helpless elderly suffering at the hands of Skilled Healthcare and others like them, and of course the lawyers who came to their aid.

Cries for tort reform follow every large verdict involving a corporation or industry. In fact, the moaning begins years in advance in an attempt to sway juries. Trial lawyers and the clients they represent have been under attack for the last 30 years. The cries come from the same direction as the calls for deregulation of the oil industry and gulf drilling in the midst of the BP disaster, the calls for bans on medical malpractice suits when the Institute of Medicine estimates that up to 98,000 patients die each year as a result of medical malpractice, and the arguments against financial industry reform following the near collapse of the world economy directly related to the existing lack of regulations.

Oddly, these arguments often hold sway. Fortunately, the California jury in this case did not buy into the fantasies that drive these arguments. Perhaps the jury recognized the very real and inevitable fact that many of them or their loved ones will at some point be forced, certainly few go willingly, into the care of a nursing home. And once they get there, maybe their verdict will provide them a little protection. Nursing home management companies like Skilled Healthcare if allowed would slash their staffs down to the receptionist and the accountant in the name of corporate profits. Fortunately, there are still attorneys willing to take on these injustices and there are still juries willing to listen despite the relentless attack on trial lawyers over the past 30 years.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

As another oil rig burns in the Gulf of Mexico, BP is attempting to extort new Gulf leases with suggestions or perhaps threats that without these new leases it cannot or will not pay the damages for the disaster it has caused in the Gulf.

A new bill working its way through Congress would bar any company from receiving deep water drilling permits if it has had more than 10 fatalities on its rigs or has been penalized with fines of more than $10 million under the Clean Air or Clean Water Act. The bill does not mention BP by name but oddly BP is the only company with this track record.

Of course the bill will likely never pass anyway. Remember "drill baby drill." It's still the mantra of the Republican party. It is just whispered now rather than being plastered on t-shirts and posters at campaign rallies. The Right is not concerned with the disaster(s) in the Gulf. It is easier to blame the Democrats and Obama. Instead, in the midst of the crisis they attack Obama for not stopping the horrible and uncontrollable spill that 30 years of oil deregulation has caused. They publicly criticize Obama for not doing more to stop the spill while they continued to fight any meaningful regulation of the oil industry that would stop future spills, and perhaps a few regulations that might help to prevent rigs from exploding, like the one that blew up yesterday.

Oddly, the Right goes the other direction than common sense might dictate. Rather than legislation and regulation to increase the safety of rigs to protect the Gulf and the workers on those rigs (do not forget 11 men died in the BP disaster), the Right will continue to fight for deregulation. It's just what they do and who they are. They can't help it.

But there is more to it than safety of offshore rigs. The deregulation craze has spilled into all other areas of energy production. There are hundreds of contaminated water suits that have been filed against Massey Energy for vast contamination of drinking water in the areas in which they operate. The natural gas industry, the purportedly clean energy alternative, is following suit. Natural gas does indeed burn clean, however, the extraction process has devastating impacts on water supplies around the wells. Like the coal slurry contamination, the chemicals used to extract the gas from the ground seep into the drinking water of nearby residents rendering the water toxic. Yet, there is little regulation over the extraction process or the chemicals that are pumped into the ground.

In the end, thousands upon thousands more will be injured as a result of deregulation of the oil and energy sectors. There will be promises of clean methods. And when mistakes or disasters occur, there will be promises of absolute responsibility. Then there will be back pedaling as with the extortionate threats of BP over regulation of deepwater drilling permits. It will be quite dramatic as legislation quietly dies in Congress and business continues as usual. The only thing left will be the lawsuits to compensate the victims for their damages. Naturally, the Right will then chime in attacking the lawyers that attempt to help those victims and the victims themselves for their opportunistic greed. And BP and friends will skip along their merry way as taxpayers pay for their mistakes.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Dodd-Frank Act was passed earlier this summer to reign in Wall Street abuses that very nearly led to collapse of our economy. The rights of corporations to do whatever they want whenever they want has even been couched in terms of civil rights. It is funny how the loss of over $11 trillion in wealth in 2008, over $5 trillion in the last 3 months alone, has taken a back seat to a cynical and fairly disgusting reinvention of civil rights arguments to promote corporate profits. The two are not unrelated.

How so you ask?

1. The right is fighting against Wall Street and financial reform in the midst of the worst recession since the great depression.
2. The right is fighting against regulation of off shore drilling in the midst of the worst environmental disaster in history.
3. The right has fought successfully to allow credit card companies to jack interest rates for no reason other than the need to beef up profits while consumers are buried in already high interest debt.
4. The right is fighting to limit liability for BP and its partners for damages to thousands of businesses and millions of taxpayers along the Gulf Coast while seeking tax credits for the oil industry.
5. The right is fighting for the repeal of healthcare reform to maintain the profits of health insurance companies while suggesting that cheap healthcare is somehow bad for the poor and middle class.
6. The right is fighting for the repeal of various inconvenient constitutional amendments such as the 14th amendment civil rights protections.
7. The right is fighting for the right of businesses to discriminate as they please against both employees and consumers calling our government fascist for reaching out to workers, the poor, the sick, the little guy.
8. The right is fighting for unencumbered police power to stop and question citizens upon the most trivial suspicion of illegal immigration status while again calling our government fascist for tax breaks for the middle class at the expense of the top 1% and affordable healthcare at the expense of the health insurance industry's record profits.
9. The right fights to prevent medical malpractice lawsuits despite the fact that the Institute of Medicine estimates that up to 98,000 people, typically the little guys, die each year from medical negligence.
10. The right fights for the insurance industry rights to inflate the medical malpractice insurance costs for doctors while the number of medical malpractice lawsuits has steeply declined over the last 10 years, Strangely, even doctors have now dropped in status to the little guy. Ask any doctor and he or she will tell you..

Finally, the right is fighting against trial lawyers who after all the above proves successful will be the last possible outlet for individuals to protect their rights, their freedoms, their jobs, their families, their homes, their health and their financial security. The right will not hesitate to take up a corporate cause and corporate profits. Who will fight for you when the right achieves their goals? Like it or not, it will be trial lawyers who have always stepped up to protect the little guy particularly when as now our elected officials are prevented from doing so by those same corporate interests.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Institute for Legal Reform, an admitted national campaign from the U.S. Chamber of Commerce, is circulating emails to gain support from the public for tort reform. The email captioned "Does America Need More Jobs -- Or More Lawsuits?" calls for an end to "lawsuit abuse." What it really calls for is corporate immunity for reckless and dangerous corporate behavior that harms consumers, workers, the environment and every other corner of our society.

It is odd timing that the email comes out in the midst of the worst corporate disaster in our nation's history. It is the predictable opening salvo in the inevitable U.S. Chamber and right wing efforts to shield BP, its partners, and other like-minded corporations, from responsibility for the harm their negligence and recklessness cause society.

The email suggests a fictional $1.6 billion tax break for trial lawyers. Of course, the email does not mention the subsidy that taxpayers will provide to BP, Halliburton, Transocean and Cameron for the massive damages caused by the BP spill. Nor does it mention the billions in tax credits awarded to the oil industry each year or the billions more in environmental damage that the oil and gas industry cause each year. It fails to mention that it is the taxpayers that pick up these costs. Most of all, the Chamber fails to mention the thousands of businesses and hundreds of thousands of residents along the Gulf Coast who have suffered permanent and devastating financial and emotional harm from the BP disaster.

Make no mistake, the Chamber will speak up once those harmed by the spill take legal action beyond the wholly inadequate $20 billion that BP has dedicated to cover the harm it has caused. There will be thousands that accept very small settlements out of economic desperation. Others are completely barred from the funds because they are not close enough to the coast to qualify for compensation. Instead, very strict rules on compensation along caps on damages have been set up to protect BP, not those that were harmed.

Those that refuse to accept less than they are owed and take up legal action will face years of expensive and stressful litigation. In the meantime, many have lost their financial livelihood and way of life. If they are compensated at all for their losses, it will be years as with the 20+ year litigation of the Exxon Valdez.

Yet it is not BP that the Chamber points out as a drain on society, it is trial lawyers. These are the very same trial lawyers that worked for over 20 years to compensate the victims of the Exxon Valdez. And it is same lawyers that will be seeking compensation from BP. It is the same lawyers that will greatly reduce the costs to taxpayers by avoiding what would otherwise be public assistance to pick up the uncompensated losses to those harmed by the BP spill.

It is these same lawyers that finance this litigation at their own costs and do not get paid a dime unless their clients recover that the Chamber fears will bring down our economy. The Chamber calls these lawyers opportunistic. I am not sure what to call the Chamber's behavior. Maybe, we can ask the thousands upon thousands of workers who have lost their jobs as a result of BP what they need most, jobs or lawsuits. Unfortunately, due to the negligence of BP, the answer is they need both.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

When President Obama first called for $20 billion to be set aside by BP for the Deepwater Horizon disaster, some on the right called it a shakedown, extortion, anti-American, socialist and so on. The fact is if BP gets out of its liability for a mere $20 billion, then it is the people and businesses on the Gulf Coast that have been shaken down. And it is the American taxpayer that will eat the difference.

The settlement terms first and foremost protect BP and its partners, Halliburton, Transocean and Cameron International from full exposure for the damage the spill has caused. A settlement from the fund will bar injured individuals and businesses from making any claims against BP's partners despite their clear liability for portions of the damages. In turn, a settlement with Transocean by the employees injured or killed by the explosion will bar additional claims by those workers against BP or the other partners. In short, the $20 billion fund was established to protect BP, Halliburton, Transocean and Cameron International, the oil industry. It was not ever intended nor will it come close to fully compensating the victims of spill.

The limitations on claims are pretty strict with compensability based largely on geographic proximity to the spill. Not surprisingly, despite its constant refrain that it will take full responsibility for the disaster, BP has lobbied and continues to lobby to exclude inland businesses directly affected by the spill. Of course this would exclude much of the tourism industry that supports the Gulf Coast such as gas stations, restaurants, tackle shops, restaurant supplies, seafood distributors, gift shops, beer distributors and on and on. It would almost certainly exclude claims by those outside the region that supply goods and services to the tourism and fishing industry along the Gulf Coast.

The settlement rules will even prohibit claims by property owners for the loss of value of their property. This in fact could be a very large figure that will go uncompensated. After all, beach front property on toxic waters has limited sales appeal. Interestingly, real estate brokers and agents will have $70 million set aside to compensate them for their losses. It is clear the real estate industry has much stronger lobby than simple homeowners again bringing home the political realities of the $20 billion fund. Other industry lobbies will likely come forward in the future to have portions set aside for their own losses. Bank of America, Citibank, Goldman must be hurting terribly from the loss of loan activity in the region so they most certainly should be compensated.

The fund protects BP, Halliburton, Transocean, Cameron and even has a measure of protection for the real estate industry while leaving small business, homeowners, and thousands of workers who have lost their jobs to fend for themselves. After all, this is America where personal responsibility is king. Corporate responsibility is an entirely different matter. Good money is paid to keep it that way.

And wait for it! When those opportunistic individuals, workers, small businesses left out in the cold are forced to seek recovery on their own, the tort reformers and the right will waste no time in attacking the villainous and greedy trial attorneys that would dare take on their cause. The same interests that have worked to minimize the liability of BP and its partners will then try to convince us that it is BP, its partners, the oil industry, capitalism and America itself that is being victimized by the trial lawyers who seek to bring compensation to the true victims of the spill.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Tort Reform movement paints every personal injury claim as an assault on small business, doctors, health care, the public, the very American way of life. Every jury verdict is claimed as a victory of greedy trial lawyers and opportunistic plaintiffs who are just trying to profit at the expense of America. The tort reformers are not subtle in their claims. Unfortunately, their claims are completely false directed toward the protection of insurance industry profits.

This truth is born out in court every day, in every state, in every personal injury case. The mention of insurance coverage in personal injury actions is strictly prohibited. It is argued that jurors would unfairly factor the coverage into their decision-making. What escapes reason and discussion in the Tort Reform error is that jurors routinely and erroneously factor into their decisions the possibility that a large verdict would unduly harm the defendant whether it be a doctor, small business, large business, or individual.

In fact, this lie underlies the entire Tort Reform campaign which relies on the fact that the jury and the public are never told the truth behind each and every personal injury case. That truth is that personal injury cases are rarely filed at all unless there is insurance coverage. Insurance is called upon to reimburse plaintiffs for their injuries. In most cases, there is no point in filing against an uninsured defendant. Most uninsured individuals or businesses have no assets either. One of the first things anyone does upon the acquisition of wealth or assets is to obtain insurance to protect them. Where the defendant is uninsured, which is quite typical in auto accidents in New Mexico, the typical best case outcome is a large but uncollectable verdict. Few lawyers would put their clients or themselves through such a futile endeavor.

The truth is that the insurance industry, which records obscene earnings and profits each year, relies on the jury's lack of knowledge to protect not the doctor, the small business or the public but to protect its own profits. In the end, due to the huge success the lies of Tort Reform have in had on swaying juries against injured plaintiffs and effectively passing on the insurance industry's liability, it is both the public and the plaintiff who are harmed.

The Tort Reform movement in its successful campaigns for the protection of the insurance industry effectively shifts the costs of the insurance industry to the injured plaintiff and the public. After all, who pays when a plaintiff is horribly injured, forced to endure a lifetime of medical treatment and often unable to work? Medicare, Medicaid and Social Security then pick up the tab for what was contractually the responsibility of an insurance company. These costs are of course passed on to the public through taxes and debt.

Keep this in mind the next time you hear that personal injury suits harm the public. It is not the personal injury suit, the attorneys, or the plaintiff that hurt the public, it is the passing on of insurance coverage responsibilities from the ever successful and profitable insurance industry to the public health and welfare agencies that causes the true harm to the public.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Reports in the press show that BP immediately began preparing for litigation following the spill. The company did this as it touted its intention to take full responsibility for the spill. It seems its partners in the Deepwater Horizon well did the same. Unlike BP who downplayed the disaster in the early weeks in efforts to get waivers and settlements on the cheap, its partners have gone the other direction alleging "gross negligence" on the part of BP in the disaster.

Of course, BP's partners, Anadarko Petroleum Corp. and Mitsui Oil Exploration Company of Japan, share BP's motivations. They are attempting to evade their shared responsibility for the disaster as partners in the well. According to the New York Times, BP has made a demand of $272 million on Anadarko for its 25 percent share, and $111 million form Mitsui for its 10 percent share. These demands will clearly go much higher in the coming months and years as the damages and legal claims continue to mount.

The public position taken by Anadarko in claiming gross negligence in order to escape its contractual responsibility is remarkable for a number of reasons. The same is true of Mitsui who has reserved judgment in assessing its contractual responsibilities. First, in its early preparation for litigation, BP apparently snatched up many industry experts. This effectively conflicted many of the experts out of representing plaintiffs. BP will be unable to take the same tact with its own partners since it will be the partners' experts that assess BP's level of negligence. Second, and related to the first, it may be BP's own experts that provide much of the groundwork for the thousands of civil lawsuits that are already in the works, and the many more that are sure to come against BP.

Predictably, BP will fight any claims of gross negligence by both its partners and the many plaintiffs in the civil lawsuits. It is also predictable that Anadarko will reverse position on the issue of gross negligence to avoid punitive damages in the civil lawsuits. It is equally predictable that the Tort Reformers, the right and the oil industry will continue to push for caps on liability both for this disaster and others to come in the future.

Much like Transocean who has pushed for $25 million caps in liability while recovering hundreds of millions of dollars in insurance for the destruction of its rig, BP, Anadarko and Mitsui will waste no time in making claims against one another for their business losses while one and all will join in the refrain to prevent full and fair recovery by the true victims of the BP disaster, the people and businesses along the Gulf Coast. It really its a race to bottom of business, social and community morality.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Albuquerque Journal recently reported on a surgical checklist proposed by the World Health Organization to reduce operating room errors. The contents on the list are pretty simple including pre-surgical procedures for verifying the surgical procedure with the surgical team, verifying the identity of the patient before beginning surgery, marking the surgical site with a pen or marker, verifying patient allergies, verifying that all necessary equipment is in the operating room and working properly, verifying all necessary x-rays and other images are in the operating room and at the end of surgery, making sure that all equipment and supplies are accounted for to avoid the embarrassing and often very serious oversight of leaving stuff inside the patient.

The New England Journal of Medicine reported that the checklist was effective in the 8 cities around the world that utilized the list and in those hospitals using the list, post-operative complications, including deaths, fell by 36 percent. The World Health Organization found that inpatient deaths following major operations fell by more than 40%. The Albuquerque Journal reported that Presbyterian Kaseman Hospital alone expects to save 162 lives this year using a version of the checklist.

Oddly, the authors of the New England Journal of Medicine study indicated "Whereas the evidence of improvement in surgical outcomes is substantial and robust, the exact mechanism of improvement is less clear and most likely multifactorial." Most people would go the other direction asking why in the world there has been no such checklist in the past. Most people, including those patients and their families that undergo 234 million surgical procedures each year around the world, probably assumed that there was and always has been such a checklist. People make checklists when they go to the grocery store. Is it really too much to ask that surgical teams exercise the same level of planning?

This report is disturbing on many levels. Is it really to be viewed as a medical breakthrough of sorts that surgical staff would begin to verify the patient, procedure and surgical site prior to operating? It is remarkable that Presbyterian Kaseman, according the Albuquerque Journal, expects to save 162 lives this year through implementation of the checklist. Most would consider failure to perform these basic tasks to be negligent, arguably grossly negligent. And one would be justified in asking, "If 162 lives can be saved through these simple procedures this year, what about those 162 lives lost last year and the year before as result of the failure to implement these seemingly obvious surgical procedures?"

These reports come out in the midst of ongoing Tort Reform battles to limit or bar medical malpractice lawsuits, continued movement for limits on medical malpractice claims, and generally growing and expensive obstacles to such claims by injured patients or their survivors. When hearing this report, the rather unbelievable assertion by the Institute of Medicine that up to 98,000 patients die each year in the United States as a result of medical negligence makes perfect sense. It would also tend to make any reasonable patient nervous about any surgical procedure knowing that very few hospitals have implemented the checklist and that Tort Reformers and medical industry lobbyist are hard at work to limit claims by a patient in the event that he or she is among that 98,000 next year.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

There were 11,773 DWI deaths nationally in 2008. These numbers are alarming. It is absolutely unacceptable to allow drivers to endanger the safety of others. A drunk driving death has enormous consequences causing severe and irreparable damages for the family, the children, the friends and loved ones that survive. Those that cause these harms, or even threaten these harms, must be stopped at all costs. And when they do cause harm, they must be held fully accountable in every way. Personal responsibility is the foundation of democracy. Agreed?

Contrast these numbers, the outrage associated with these tragedies and the policies to address them with the myth of the medical malpractice crisis. The Hippocratic Oath states, "FIRST, DO NO HARM." It is hard to explain how this Oath justifies the rabid opposition to compensation of victims of medical negligence. The National Academy of Sciences Institute of Medicine estimates that up to 98,000 people die every year as a result of medical negligence. That is almost 9 times the number of DWI related deaths. Where is the outrage?

When viewed against this backdrop, the Hippocratic Oath is rendered meaningless. It is difficult to explain or justify until you realize what is really behind Tort Reform. There is another and overriding oath decreed by the Insurance Industry, the Hypocritic Oath, which states, "FIRST, SEE NO HARM." This explains why Tort Reformers can continue to rant about the mythical medical malpractice lawsuit crisis while denying the true crisis completely. The Hypocritic Oath explains why worker's compensation laws in every state provide pennies on the dollars for damages suffered by injured or killed workers. It explains why worker's compensation laws are drafted and enacted under the pretext of protecting workers when it is really to protect employers against responsibility from their own negligence, and sometimes recklessness, that leads to the injury or death of workers. It explains why these arguments can be made in the face of the reality that there are well over 5000 work related deaths a year according to the Bureau of Labor Statistics, while thousands more suffer permanent and crippling non-fatal injuries, many of which are the result of unsafe working environments or conditions. It explains how Transocean can fight for liability limits of $27 million for its negligence in the BP spill while collecting hundreds of millions of dollars to compensate for its own losses from the very same spill. And on it goes. The Hypocritic Oath is everywhere you find the insurance industry.

The Hypocritic Oath dictates that the insurance industry, purportedly on behalf o their client corporations, doctors and employers should spend millions upon millions every year on Tort Reform to dodge their responsibilities to individuals and society. It dictates that taxpayers pick up the costs for their harms with Medicaid, Medicare, Social Security, bank bailouts, TARP, disaster relief and assistance, liability caps and limits and countless other governmental measures made necessary by the Hypocritic Oath. Tort reform is not about protecting doctors. It certainly is not about protecting patients, workers, families or society. It is about protecting profits, plain and simple.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The purported vision of the Tea Party is compelling. The Tea Party would purportedly like to see responsibility and accountability on the part of government, corporations and individuals. In particular, the Tea Party decries the wasteful spending of government. Though they make plenty of noise, the Tea Party remains silent on issues that truly are financially crippling to taxpayers like themselves. They fall victim to the same cynical corporate and insurance industry manipulation that drives Tort Reform.

The true colors of those driving the Tea Party and Tort Reform, and make no mistake these are the same groups, is evident in their opposition to even the hint of true reform. This became evident in the Republican position on financial reform. Out of one side of their mouth they scream abuse and waste in the bailout, while from the other they spew contempt for the very governmental regulations that could have prevented the collapse.

We see it again now with the BP disaster. It is almost too outrageous to believe but Republicans in the midst of what may become the worst environmental disaster in the history of the planet are already fighting for caps on liability for the oil companies that caused the disaster and for those that cause them in the future. The good Senator Murkowski of Alaska says these limits are necessary to protect small business. This is a typical battle cry of the right, "Protect Small Business." Is the constant refrain of Tort Reform. Is this really their concern?

Where is the Tea Party, Tort Reform, Senator Murkowski, and the Republican party when small business, truly small business, is at stake? Take for instance the thousands of small businesses that will be destroyed by the BP disaster. They are not talking about that small business. The small business they want to protect is BP, Halliburton, Transocean, the insurance industry and the many other mom and pop operations involved in the offshore drilling industry. It is more than ironic that Senator Murkowski is seeking to limit liability for these companies while Transocean has already received $401 million in partial payment on its insurance claims for the loss of its rig. Where is the outrage from the Tort Reform movement? Will this not drive up our insurance costs just as when a insurance company must pay a claim for a medical malpractice related death?

And while Transocean has received $401 million in insurance payments, they and their allies on the Right continue to fight to limit their liability to a mere $27 million. It is clear that these groups have no interest in protecting truly American small businesses along the Gulf Coast. But they will spare no expense protecting the small businesses of Dubai (Halliburton), Switzerland by way of the Cayman Islands (Transocean) and the poor and vulnerable insurance industry that really does suffer most in these crisis.

It was easy to predict that BP and their buddies would run for shelter as quickly as possible after first declaring the intention to pay for all damages caused by the BP spill. It was equally predictable that the Republicans would come to their aid. Just as Republicans fight to preserve the very Wall Street practices that very nearly destroyed the world economy, they now fight for limited liability for oil companies that destroy the sacred small businesses that they purportedly champion. The Tea Party, created out of fictional threats dreamt up by the Right, has predictably stayed silent despite the obvious harm to its own interests.

Accountability and responsibility is the fundamental principle underlying American democracy. A true political movement based on individual, corporate and governmental accountability and responsibility would provide a positive role in shaping public policy for the protection of the public. But there is no meat at the Tea Party, just watered down, probably imported tea, with what appears to be some toxic sugar substitute. The very people that purport to care most about American taxpayers will cost those taxpayers most dearly as we the taxpayers continue to bear the costs of financial corruption on Wall Street, predatory credit card companies, a banking system that continues to hoard interest free government loans while refusing loans to small business, an abusive and bloated insurance industry, and oh yeh, the billions that the BP disaster will costs small businesses and their employees along the Gulf Coast, and the taxpayers that must ultimately foot the bill.

Once again, please weigh in with your representatives. This IS important.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The class action lawsuits have begun in the BP spill. The first suit filed by Beasley Allen was filed to recover damages, past and future, suffered by the restaurant owners along the Alabama coast. Further suits can be expected in other Gulf Coast states and from other industries harmed by the spill. The real question is what to expect from BP, Halliburton, Transocean and most of all from Congress.

Alabama alone brings in over $3 billion a year in Gulf Coast tourism. Texas, Louisiana, Mississippi and Florida likely bring in comparable Gulf Coast tourism revenue. The tourism losses will spread beyond restaurants to lodging, shopping, fishing, water sports, travel and so on. The loss in tourism dollars alone is far greater than the $75 million cap on damages for coastal drilling accidents.

There are many other direct costs that may well dwarf the loss in tourism such as the destruction of the fishing industry, the coastal wetlands, the ocean itself, and of course the massive cleanup efforts that will be required for even nominal success in remediation of the areas affected by the spill. The indirect costs could in turn dwarf even these costs. Meat and poultry prices have already begun to rise. Gas prices will surely begin to rise. Groceries across the board will rise in costs as a result of the increased fuel costs associated with getting products to market. The rise in energy costs will affect every area of our economy likely slowing the economic recovery from the recent recession. The unemployment throughout the Gulf Coast and across suppliers of goods and services to Gulf Coast businesses will likely sky-rocket. Then there is the property damage that will be suffered by the plummet in property values across the Gulf Coast. A coastal mansion or resort is probably not as picturesque as it might be with black toxic beaches littered with decaying fish and other wildlife.

All the while the first congressional hearings on the spill saw BP, Halliburton and Transocean all denying responsibility for the spill. This comes on the heels of BP's initial public relations ploy to accept full responsibility for the disaster. BP continues to state that it will cover all "legitimate" losses. This is what comes out of one side of their mouths. The other side continues to try to chip away at their responsibility and the definition of "legitimate." BP, Halliburton and Transocean will continue to cast blame on one another, and eventually they will probably try to blame the Mineral Management Service. They may even try to blame probably Obama which seems to be standard conservative response to every problem and have no doubt that the oil industry is firmly in the conservative camp. In addition to shifting blame, they will seek cover under the $75 million cap on damages. They will dispute every claim. The will dispute the direct losses such as the costs of cleanup and the destruction of the fishing and tourism industries along the coast. They will not even entertain the thought of compensation to the American taxpayers and property owners for the indirect costs. Do we really expect that these costs will be fully compensated when BP, Halliburton and Transocean are already disputing liability and fault?

The real remaining question is whether our leaders in Congress will force full accountability and responsibility for the harm that this spill has caused and will continue to cause our country. Or will they instead relent to the oil industry as they have so many times before. It always come down to the money. The question is whose money our leaders will value most, the taxpayers' money or their own oil industry campaign contributions? It is clear whose money dictated the absurdly low $75 million cap on damages. Whose money will speak moving forward. You do have a say. Let your representatives know whose money they should be watching.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

There was a recent New Jersey jury verdict of $18.5 million for a birth injury. The medical malpractice award was reported in The Star Ledger. Essentially, the jury issued the verdict after finding that a delay in a c-section delivery resulted in the child's cerebral palsy.

It is not uncommon to see very large verdicts in birth injury cases. The damages in these cases are significant. The child and the family could face a lifetime of medical expenses, assisted living, rehabilitation and so on. This is not cheap. In addition, the child will one day become an adult with absolutely no possibility of earning income. A lifetime of lost earnings will typically make up a big part of the damages award. Then of course there are damages for pain and suffering. Despite what many believe, these are often a small percentage of the overall award.

Again, the verdict itself is not that surprising in light of the damages. In reading the comments on the article, I was struck by the success of the tort reform movement in programming the public's response. In fact, most jurors come to the jury box with these same prejudices including a strong bias toward protecting the medical profession.

One comment suggested that "Life is never fair. Nothing guarantees a perfect life or entrance into it." Another suggested that these awards are the reason for high health insurance costs. Another suggested that patients buy their own insurance to protect against medical malpractice. Even the one that agreed with the verdict expressed horror that the attorney would be paid a percentage of the recovery.

Yes, life is not fair. But life should not be made dangerous by the acts of others, especially those entrusted with your care. And those that do cause harm should bear responsibility for their actions. Lawsuits are not the reason insurance is so high, insurance companies are the reason insurance is so high. The medical malpractice crisis is a myth. Medical malpractice claims have dropped dramatically over the last 10 years. A study by the Institute of Medicine, a part of the National Academy of Sciences, estimates that up to 98,000 people die each year as a result of medical negligence. The fact is far fewer lawsuits are brought than realistically should be to protect the public against these risks.

Numerous health insurance companies made record or near record profits in 2009. At the same time, many are raising premiums across the board. Think about that. They made record profits during the worst recession since the Great Depression and yet they are still raising rates. Is it really lawsuits that are driving insurance costs? Could it not be corporate greed?

And what about those greedy lawyers? Look again at the actual numbers on medical malpractice claims. There are very few medical malpractice lawsuits being filed just in relation to wrongful deaths associated with medical negligence. This does not even begin to address medical negligence that results in non-fatal injuries and illness, often permanent, caused by medical negligence. The fact is these are extremely hard cases for attorneys. They are extremely expensive to litigate. This is true even in clear cases of negligence where it is often the policy of insurance companies to deny every claim. In addition, these cases are lost at trial more often than they are won due to the benefit of the doubt given doctors. Attorneys that take these cases take on enormous risks. Without the fee in the end, nobody would take these cases. And injured patients and society would be forced to bear the costs of these errors.

To some, as indicated by the comments to the report of the verdict, it is far better for society to allow insurance companies to charge outrageous premiums to protect against a fictitious wave of medical malpractice lawsuits while having the patient bear all the risks. It is far better still that society and taxpayers should bear the costs of a lifetime of care for injured patients through Medicaid, Medicare and Social Security than for insurance companies to cover the losses for which they are paid to cover. The insurance companies after all are the true victims here. We should protect their margins.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

BP is telling everyone that will listen that they are taking responsibility for the disaster they have caused. They will waste no expense getting that message across. But what is the reality?

It has become clear that there is a $75 million cap on the damages that BP can be ordered to pay. BP has stated they will pay all "legitimate" claims. Let's see how their lawyers, their public relations specialists, lobbyist and allies in the conservative media begin to warp the definition of legitimate in the coming weeks, months and years as the full impact of this disaster becomes known.

BP immediately hit the pavement trying to settle claims at $5000 a pop. It is hard to know where to start to describe all the problems of that little move. Fortunately, they were shut down and prohibited from continuing these efforts. Let's see where they go from here.

BP admits that the oil spill could reach 60,000 barrels a day. In the early days of the spill, it was estimated at 150 barrels per day. It is now feared that the oil will make its way up the east coast due to the currents in the Gulf of Mexico. Of course, nobody has even begun to address what the spill will do to Mexico, Central America, South America, the Caribbean... I guess they are on their own. I do not imagine BP will be offering up compensation for these damages as they are already seeking cover under the cap and beginning to throw around the term "legitimate." I trust we will all be just as understanding when an offshore rig blows up off the coast of Venezuela.

BP is now holding town meetings across the affected region. As part of this effort, the New York times reported that the company is trying to enlist and organize volunteers. That's right, they are asking the folks in the region who are now out of work to work for free to clean up the very mess that put them out of work. It's hard not to admire them for their chutzpa. Corporate responsibility and morality is of course another matter entirely.

Then there are the workers who were killed or injured. Can we expect BP to at least take care of their workers and their families. I do not think so. If they are seeking protection under the $75 million cap on damages to the people of the Gulf Coast, it seems a safe bet that they will now take shelter under the protections of worker's compensation to pay their workers pennies on the dollar for their injuries and damages.

So when BP says "We take full responsibility", they don't really mean that. What they mean is that they will pay only those damages that they absolutely cannot wiggle out of. Perhaps, they, their lawyers, their lobbyists, and their media allies bathe in the same oil that is pouring into the Gulf. They are certainly every bit as slippery.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

BP seems to be saying all the right things to the press. They acknowledge full responsibility for the accident and its clean up. They have indicated that they are putting every available corporate resource toward stopping the flow of oil and minimizing its impact on the environment. The company has even been generous enough to begin offering settlement agreements for damages to those harmed by the spill. If this sounds too good to be true coming from an oil company, it most definitely is.

While BP works the media and other public relations angles to project a responsible corporate actor, they have quite cynically, unethically, immorally, and arguably, fraudulently been attempting to extract cheap settlement agreements from fisherman and other businesses that will be harmed by what some are now saying could be an unprecedented environmental disaster. What is BP offering in its fit of generosity? Five thousand dollars in total settlement of all past, present and future claims for what may potentially be catastrophic loss of income to those affected by the spill. These efforts are so outrageous that it is reported that the Louisiana government has directed BP to cease circulating the settlement flyers. All those suffering losses have been advised to seek legal counsel before accepting any settlement offers from BP.

It might be suggested that this is just sound corporate behavior, trying to minimize losses to the company and its shareholders. It is and it points to the conflict between sound corporate policy, and public policy and individual rights. Many of these fisherman have already been shut down. Their loss of income alone may already exceed $5000.00. This does not even begin to reflect the future lost income, loss of way of life, loss of the enjoyment of the Gulf on which they have built their lives and their livelihoods. The effort to extract quick settlements is certainly predatory but by no means an unusual corporate response.

The Tea Party should have something to say here though I trust they will not. Let's say BP pays the full costs of the accident including the environmental cleanup, which is highly doubtful, who pays the other costs of the spill? Who pays for those fisherman, restaurants, tour operators and other businesses shut down by the spill along with all their now unemployed workers? Who pays for the increase in fuel costs, fish prices, other meat prices that will soar as a result of this catastrophe? What about the loss of tourism and related employment in a region still suffering from Katrina?

One way or another, the taxpayers will pay for the great bulk of the costs caused by BP's failures. All the while, BP is out front trying to gain settlements at pennies on the dollar from the immediate victims of the accident. It is very unlikely that BP will offer even a single nickel toward the indirect costs. And, once the lawsuits begin from those most harmed by the spill, they will bring their full corporate might and legal resources to fight every nickel of settlement of the direct harm, complaining all the way of the injustice of the American legal system that allows treacherous and greedy trial lawyers to prey on the vulnerable corporate benefactors of our society. And in a twist of irony or some might say hypocrisy, those most vocal about government spending, social programs, overreaching government regulation and so on will come to their defense.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

President Obama has announced sweeping mine safety initiatives in response to the recent West Virginia mining disaster in which 29 miners were killed. This is all well and good, but will it have any effect on the profit-driven corporations that run these mines? Sadly, the answer is probably no.

Massey Energy, the company that runs the Upper Big Branch mine where the recent tragedy occurred, was issued 515 citations in 2009 for that mine alone. There were already 124 citations against Massey Energy for Upper Big Branch mine in 2010. Over the last 5 years, Massey has been fined over $7 million for safety violations. Of course, they fight these tooth and nail and have paid only $2.3 million. Massey Energy, and other like-minded mining operators, seem to take the approach that they will fight every nickel of fines, dragging these cases out for years. All the while, they continue to rack up safety violations jeopardizing the lives of their workers.

Let's say for argument that Massey was forced to pay the full $7 million in fines. Would that change their safety practices? Take a look at the numbers and judge for yourself. Massey Energy reportedly had 2009 revenue of $583.9 million, down from previous year's revenue of $661.28 million. It is also reported that Massey Energy CEO Don Blankenship made somewhere in the vicinity of $19 million in 2008. It doesn't take a math genius to recognize that these paltry fines are not going to alter the profit driven decisions of Massey Energy or any other corporate actor.

What is a miner's life worth? Is a mine worker's life worth the investment in safety necessary to prevent the avoidable tragedies that occur far too often in mines? How about 29 workers? Apparently, the answer is no. This is quite obvious when one looks at the safety record of Massey Energy. The profit equation must be altered.

What's the answer? President Obama is certainly on the right track but there needs to be more. These companies must pay the price for reckless safety practices that jeopardize their workers. I am confident they will, but not through the fines envisioned by the new wave of safety inspections. These paltry fines have had and will have no affect companies like Massey Energy that place profitability before the safety of their workers.

Instead, the real price will come from the personal injury lawsuits sure to come in the next several months. And when they do, the Tort Reformers will cry foul that the greedy trial lawyers are simply taking advantage of a tragic situation. They will make these arguments knowing full well that these lawsuits carrying significant compensatory and punitive damage awards will provide the only real incentive for corporate change. Changing the profit equation to include possible massive damage awards is the only thing that will get their attention. And it is the only way to avoid future tragedies like the Upper Big Branch mine disaster.

www.CollinsAttorneys.com