Honolulu Personal Injury Lawyer

U.S. Surgeons Suffer From Burnout - What Can Be Done To Help Them?

Wayne Parsons — Wed, 30 Dec 2009 11:34:37 GMT

When the Mayo Clinic and Johns Hopkins both weigh in on a medical issue it gets my attention. These two medical giants stand at the top of the list of great medical establishments in the world. Along with the American College of Surgeons, Mayo and Johns Hopkins took a serious look at what surgeons in the U.S. had to say about their performance. This wasn't part of some political skirmish over tort reform and health care. On that subject I have expressed strong opinions: Tort Reform Has No Place In Health Care Reform. The current study is sincere effort by leaders of the medical profession to improve their performance by honestly looking at the facts and searching for ways to reduce errors by helping doctors, not by punishing injured patients through tort reform. I am impressed. I wonder how I can help?

The study Burnout and Medical Errors Among American Surgeons by Shanafelt, Tait D. MD; Balch, Charles M. MD; Bechamps, Gerald MD; Russell, Tom MD; Dyrbye, Lotte MD; Satele, Daniel BA; Collicott, Paul MD; Novotny, Paul J. MS; Sloan, Jeff PhD; Freischlag, Julie MD, is worth reading by both doctors, patients and journalists.

The study concluded that both burnout and depression are strongly related to surgical errors. Among U.S. Surgeons, 9% revealed that they had made a major error in the 3 months prior to the survey and 70% blamed themselves for the error rather than some other source like the hospital of the system they worked under.

I file medical malpractice lawsuits against negligent doctors whose avoidable errors injure their patients. Surgical errors are often among the most serious of medical malpractice cases. But when I read this study about stress and depression among U.S. surgeons I asked myself how we as a society can help the surgeons with their stress and depression, and in so doing make surgery safer in America's hospitals.

I know that some glib reader out there will suggest that if I would only stop filing lawsuits against doctors, their stress level would go down and they doctors would be less distressed. But what about the patient who suffers a catastrophic injury at the hands of a depressed surgeon? No, the answer isn't to accept injuries caused by a negligent surgeon any more than it would be to excuse stressed out truck drivers for highway collisions that result through their negligence. We must keep our standards high that all people are accountable when - through their negligence - they injure someone.

The study showed that depression, burnout, depersonalization, emotional exhaustion and sense of accomplishment - “mental quality of life” were related to avoidable errors in surgery.

“These results suggest that a surgeon’s personal mental health, including burnout, may have an effect on quality of care,” stated lead author Tait Shanafelt, MD, in a release. “Our aim is to encourage more research to find ways to reduce distress among surgeons and to provide better support when errors occur.”

Guilt about prior errors can haunt a surgeon for years leading to added depression and stress according to the study. When I think about it, is there something .

The survey of 7,905 surgeons showed that 8.9% said they made a major mistake in surgery in the 3 months prior and by mistake they meant that it wasn't just an unavoidable bad result, which is always possible, but an error on their part that was avoidable if they weren't depressed, burned out or stressed.

Over 70% of surgeons attributed the error to individual rather than system level factors. Reporting an error during the last 3 months had a large, statistically significant adverse relationship with mental QOL, all 3 domains of burnout (emotional exhaustion, depersonalization, and personal accomplishment) and symptoms of depression. Each one point increase in depersonalization (scale range, 0-33) was associated with an 11% increase in the likelihood of reporting an error while each one point increase in emotional exhaustion (scale range, 0-54) was associated with a 5% increase. Burnout and depression remained independent predictors of reporting a recent major medical error on multivariate analysis that controlled for other personal and professional factors. The frequency of overnight call, practice setting, method of compensation, and number of hours worked were not associated with errors on multivariate analysis.

The study found no relation between errors and the work setting, method of compensation, number of nights on call per week or number of hours worked. Thus it does not appear that reducing work hours will reduce surgical errors unless burnout, stress and depression is also addressed.

As the truth comes out about the massive number of deaths and injuries due to avoidable medical errors, the focus in health care should shift from tort reform to how to help doctors and hospitals improve performance. The New York Times report by Elizabeth Olson, "An Underground Campaign" cites all of the studies and facts that support the fact that 98,000 patients die in this country each year due to medical errors that are avoidable. Not inevitable but avoidable. We know that some of those deaths are due to burned out surgeons. Lets work on how to reduce the numbers of deaths and improve the quality of life for surgeons. It isn't just one or the other. We can do both if we set our minds to it. Don't you agree?

Originally posted at InjuryBoard by Wayne Parsons

Investigation Of Contaminated Heparin Syringes Highlights Medication Safety Issues

Wayne Parsons — Mon, 09 Nov 2009 14:44:50 GMT

Heparin is a biological compound often used as an anticoagulant, administered to patients through a pre-prepared syringe. It minimizes the danger of such diseases as deep-vein thrombosis, pulmonary embolism and NSTEMI. Since its commercialization in 1936, Heparin has saved countless lives; a recent investigation in the Archive of Internal Medicine, however, suggests that Heparin injections have been responsible for a recent outbreak of bloodstream infections.

To be fair, the problem doesn’t lie with the heparin itself – it lies with the manner in which it is packaged and prepared. Approximately a year ago, the Centers for Disease Control and Prevention (CDC) began examining incidents of bloodstream infections in health care facilities around the country. The infections took the form of Serratia marcescens, a fairly common bacteria that can often be found it people’s bathrooms and can, in especially serious situations, cause illnesses like meningitis and pneumonia. It appeared that the infection incidences corresponded with the source of the needles; a subsequent factory investigation revealed that manufacturer was not adhering to FDA standards. The company (whose name has been withheld) closed down all medical production and issued a voluntary recall. The dangerous needles are no longer on the market, but their existence has taught us some important lessons about drug regulation.

The authors of the investigation conclude that “close collaboration among federal agencies, public health authorities and clinicians was critical to the identification of the cause of this outbreak.” Furthermore, they suggest several preventative methods for the future. First, original manufacturer should label all of their products; currently, intermediary companies put their names on medical merchandise, making it difficult to trace equipment to its starting point. Second, since not all batches of the syringes contained infectious material, investigations must contain both epidemiologic and laboratory components (in case laboratory tests happen to use uncontaminated specimens). Most importantly, we must support the FDA. With the current trend towards medical globalization and the dangers it holds, it is more important than ever to sufficiently staff and fund this safety organization.

Originally posted at InjuryBoard by Wayne Parsons

Emily Midgley Dies in Big Island Hay Ride on Halloween

Wayne Parsons — Mon, 02 Nov 2009 11:47:22 GMT

The Star Bulletin story "Halloween hay ride proves fatal to Big Isle girl, 7" reports that Emily Midgley of Hawaiian Ocean View Estates jumped off of a trailer at the end of a hay ride and was run over by the trailer.

The hay ride was a church event held on Halloween by the Evangelical Community Church.

At 7:08 p.m. Saturday, police said, a 48-year-old Hawaiian Ocean View Estates man was operating a 1998 Dodge pickup with a trailer hitched to the truck. A number of passengers including Midgley were on the hay ride.

As the truck was coming to a stop at the end of the hay ride in the parking lot of Ocean View Evangelical Community Church, Midgley jumped off the trailer and was run over, police said.

Midgley was taken to the Kona Community Hospital, where she was pronounced dead.

I have written about trailer incidents in the past and noted that few states have any laws or regulation affecting trailer safety or use of trailers. There is an organization that promotes safety and injury prevention of trailers named DangerousTrialers.org, that proposes laws and regulations that may prevent trailer injury or death. I support those efforts and will encourage Hawaii legislators to look into this subject when they convene in January 2010.

From the facts reported about the tragic death of little Emily Midgley it is not clear if any trailer safety issues were involved. Our thoughts and prayers go out to the family and friends of this little girl.

Originally posted at InjuryBoard by Wayne Parsons

Why Doesn't The FDA Follow Untested Drugs?

Wayne Parsons — Mon, 26 Oct 2009 13:51:07 GMT

A report from the General Accounting Office (GAO) questions why the FDA "has allowed drugs for cancer and other diseases to stay on the market even when follow-up studies showed they didn't extend patients' lives".

The FDA has an accelerated approval program that applies to serious illnesses that lets drugs on the market to help desperate patients but requires follow up studies.

But the GAO report names drugs that are still on the market apparently after failing to meet the FDA requirements. The question thus lies both with the FDA and with the drug manufactures. This is reminiscent of the Wall Street crisis where government regulators stood by and watched the entire financial system collapse.

According to the AP, the FDA responds that it has "overhauled [its] tracking system since the GAO completed its report." Principal Deputy Commissioner Dr. Joshua Sharfstein said that the FDA does not have a policy for pulling the drugs off the market because "we don't want to lock ourselves into a specific set of criteria." He "added that the agency has a task force assigned to look at policies like drug withdrawals."

Originally posted at InjuryBoard by Wayne Parsons

Isn't Tort Reform Only About Frivolous Cases?

Wayne Parsons — Sun, 25 Oct 2009 14:08:03 GMT

If you listen to doctors complain that they need protection from lawsuit abuse and that the real problem in health care reform is defensive medicine and lawsuits driving up the cost of health care, you get the impression that this isn't about terrible medical care and real injuries. Well, what do you think about a doctor removing the wrong ovary? A Kansas doctor did that a law in Kansas says that a woman who sued the doctor for the horrible mistake can't recover more that $250,000 for that lost ovary. Let's have a show of hands ladies: how much is your left ovary worth? Now, how about the husbands?

Scott Rothschild of the Lawrence Journal has been covering this story and reports on an upcoming battle at the Kansas Supreme Court:

Seven years ago, Amy Miller, Eudora, went in for surgery for removal of her right ovary. Lawrence physician Dr. Carolyn Johnson removed Miller’s left ovary by mistake.

Miller sued, alleging medical malpractice. The dispute will land this week before the Kansas Supreme Court with arguments scheduled for Thursday.

The case has drawn some of the state’s biggest special interests, with doctors, insurers and businesses lined up against plaintiff’s attorneys, organized labor and other groups in a battle over whether it’s constitutional to place a legal limit on damages for pain and suffering.

In 2006, a Douglas County jury returned a verdict for Miller for $759,680.

That award included $250,000 for noneconomic losses; $150,000 for future noneconomic losses; $84,680 for medical expenses; $100,000 for future medical expenses, and $175,000 for loss or impairment of services as a spouse. Noneconomic losses are awarded for pain, suffering, disability, mental anguish and physical disfigurement.

But then-District Court Judge Steve Six knocked the award down, striking the $150,000 for future noneconomic losses because of a law that states noneconomic damages can’t go above $250,000. Six also struck down the $100,000 for future medical expenses.

Miller’s attorneys say the $250,000 cap, approved by the Kansas Legislature in 1988, is unconstitutional.

The cap usurps the jury’s role in calculating malpractice damages, infringes on the separate powers of the courts and hurts those with the worst injuries, argued Lawrence attorney William Skepnek.

Dr. Johnson admits the error:

It's not disputed that Johnson accidentally removed Miller's left ovary instead of the right one on Oct. 18, 2002, when Miller came in for surgery to relieve severe pain on the right side of her pelvis.

"I thought it was the right ovary. I don't have an explanation for how that happened. : I made a mistake," Johnson testified Thursday in Douglas County District Court.

The argument made by Miller's attorneys is that “Among the broad universe of all medical malpractice victims, the cap imposes special burdens only on those in greatest need of relief through the civil justice system.”

They call this a wrong site surgery case:

Such mistakes are common nationwide but underreported, according to a September article in the medical journal Archives of Surgery. The authors estimated there are from 1,200 to 2,700 surgeries per year that involve the wrong site on the body, wrong procedure or wrong patient.

"Despite a significant number of cases, reporting of (the cases) is virtually nonexistent, with reports in the lay press far more common than reports in the medical literature," an abstract of the article states. "Wrong-side/wrong-site, wrong-procedure, and wrong-patient adverse events, although rare, are more common than health care providers and patients appreciate."

The Kansas Chamber of Commerce puts the Miller case into its one-size-fits-all cap on damages that protects the doctors overly sensitive egos and saves billions for a boated out-of-control insurance insurance industry. In a choice between health and money, the AMA and the Chamber of Commerce and the doctors put money first and an ovary second. Someone has to sacrifice and women have been doing it for years so why not an ovary to put a few more dollars into pockets of doctors and their insurers:

“In these difficult and uncertain economic times, opponents of statutory limits to noneconomic damages are challenging one of the most important pieces of the tort reforms that fueled Kansas’ economic growth,” the chamber said in a written brief to the court.

Dr. Johnson claims that the jury was wrong because although Dr. Johnson was negligent in removing the wrong ovary, it would have had to be removed anyway in the future.

Steve Lombardi of Des Moines, Iowa has written a six-part series on the legal aspects of wrong site surgery cases: Part I - Wrong Site Surgeries - The Board of Medicine - The Surgeon

What do you think? Is your ovary worth only $250,000.

Originally posted at InjuryBoard by Wayne Parsons

FDA commissioner endorses legislation to improve food safety.

Wayne Parsons — Fri, 23 Oct 2009 15:35:47 GMT

The Los Angeles Times (10/23, Zajac) reports, "Food and Drug Administration Commissioner Margaret Hamburg on Thursday strongly endorsed legislation that would give her agency new tools to improve food safety, but she warned that Congress still must find a way to pay for them if consumers are to benefit." The proposed "changes would require significant additional manpower and costly new computer systems, Hamburg told the Senate Health, Education, Labor and Pensions Committee." Committee Chairman Tom Harkin (D-IA) "urged the FDA to come up with cost estimates quickly because, he said, he didn't want to pass a bill that would be undermined by inadequate funding."

The Wall Street Journal (10/23, A2, Zhang) reports that Hamburg said the bill needs to be stronger and give that agency more authority as well as funding, asking that the Senate's bill more closely resemble that one that passed the House in July.

Originally posted at InjuryBoard by Wayne Parsons

How Does An Injured Person Describe Their Injury To Doctors, Lawyers and Their Family?(2)

Wayne Parsons — Thu, 22 Oct 2009 03:45:54 GMT

After an injury the first thing a person hears is usually: "Are you hurt?" Describe your injury."

The other driver will often ask. The police officer at the scene. The ambulance drivers will ask. The nurse at the emergency room will write it down. The doctor. The first question from any attorney you call will be how badly you are hurt. Your wife or husband will ask as soon as you talk to them. The insurance adjuster after you notify your insurance company will want to know. The other driver's insurance adjuster will ask. Nothing about you is more important in a case that may end up as a claim and maybe be headed to court.

No question gets asked more often and by more people.

No question gets answered more poorly than this one. So lets take a look at the question and lay down some rules that will help.

As in my earlier article on What Questions Is The Lawyer Going To Ask Me At The Initial Interview For My Injury Or Death Case?, Wayne Parsons , 20 September 2009 where I tell you how to answer any question, I will give you here a detailed way to properly answer a question about your injury and your health.

1. Identify the place that hurts or is numb or is injured. For instance: "I notice something in my right lower back, next to the spin just above my belt." Or, I feel pain in the back of my head at the base of the skull."

2. Describe the sensation. For instance: "the pain is a dull ache that throbs and goes away and then comes back," or "my lower back is like knot of burning pain, like a huge muscle cramp in an area about 6-inches in diameter and it radiates into both buttocks and then goes down the right leg all of the way to my foot. The pain is burning and achy all at the same time. In the leg I feel like hot lava is running down to my foot through my leg". Be aware that pain can be "burning", "shooting", "aching", "numb", "stabbing", "dull", "like an electric shock" or "Sharp". You may find words that are better than the ones I am suggesting here.

3. Describe the duration. For instance, "I get this pain for about 15 minutes and then it lessens. It will come back 4 or 5 times a day. I have 4 or 5 periods of this pain each 24 hour day. In between I am uncomfortable and although I can feel the pain, it is at a 3 on a 10 point scale as opposed to an 8 on a scale of 10 when the pain is greatest." Think about a 24-hour period and take some notes about what you were doing and how your injury feels. This may be very helpful to your doctor and attorney. Then expand to a week and identify what days the injury was bothering you and how it affected you. Then take 3 months and then a year. You get the picture. Create a graphic pain history. You can use a calendar.

4. Think about Triggers. For instance, "I get the spasm in my back when I sit or stand for more than about 20 minutes. Also if I do anything strenuous like cleaning my apartment, it sets off a huge flare up of the pain. This is very important to your doctors and it should be important to you. The goal is to reduce your pain and suffering, so don't do things that makes it worse.

5. Don't guess. if you aren't sure about a question don't answer. Ask for more time or to have the question clarified. You can't do this forever so do your homework as i describe it here and get ready to answer properly.

6. Don't be a doctor. Nothing looks worse than a smart aleck patient using medical school terms. The doctor will explain the medical issues. All you need to to do is to describe how you feel.

7. Keep a list of areas that hurt or are numb. That will lessen the chances of you forgetting one and then the insurance company calling you a liar.

8. Defer to your doctors. They went to medical school. You didn't. When asked what your diagnosis is, tell the questioner that they should get that directly from the doctors and then proceed to tell them how it (you) feel.

9. Ask questions. This is a good time to find out the insurance company's attitude about you. Take notes.

10. Read the other articles in this series by serious Injury Board attorneys across the country:

I was in an automobile accident. What should I do? Ten Tips For Hawaii Drivers, Wayne Parsons on September 14, 2009 - 3:59 AM EST.

What would a caveman bring to meet with the lawyer?, Steve Lombardi , September 15, 2009 11:00 AM

Solving Legal Problems, Being a Client, Back to the Basics, Steve Lombardi , September 15, 2009 8:48 AM

Car Accident Injury Client: What Makes the Case Good or Bad? (The Collision & Medical Care) , Rick Shapiro September 16, 2009 9:38 AM

Being a Client: More Tips To Help Improve Your Case If You've Been In An Car Accident , Devon Glass , September 17, 2009 8:39 AM

Presumed Guilty: How to Avoid Having Insult Added to Injury When You’ve Been Hurt in a Car Crash, Pierce Egerton , September 18, 2009 4:28 PM

What To Do After An Accident When The Adjuster Is There First, Mike Bryant, September 19, 2009 6:26 PM

What Questions Is The Lawyer Going To Ask Me At The Initial Interview For My Injury Or Death Case?, Wayne Parsons , 20 September 2009 12:01

What makes a case good or bad?, Steve Lombardi, 21 September 2009 12:57 PM

What To Do After An Accident When The Adjuster Has A Tape Recorder, Mike Bryant , September 23, 2009 10:01 PM

Do I have a good or a bad case?, Devon Glass, September 24, 2009

What are interrogatories and how do I answer them?, Steve Lombardi, September 29, 2009

Interrogatories: A Written Deposition , Devon Glass, September 30, 2009

How Do You Value Your Case? Mike Bryant October 03, 2009 9:29 AM

Demystifying Injury Litigation for Clients: What Are Interrogatories?, Rick Shapiro ,October 3, 2009

Do only dishonest people refuse to give a recorded statement? Steve Lombardi | October 06, 2009 10:47 AM

These Injury Board affiliated attorneys have done a great service by collecting articles on the beginning phases of getting hurt and trying to find an attorney and dealing with doctors and insurance companies.

Originally posted at InjuryBoard by Wayne Parsons

House Financial Services panel debates federal preemption in CFPA.

Wayne Parsons — Wed, 21 Oct 2009 14:19:29 GMT

The Washington Post (10/21, Dennis) reports that the House Financial Services Committee "continued to wrangle over a provision that would allow state governments to protect bank customers by imposing restrictions that go beyond existing federal laws. The move...would eliminate a doctrine called preemption that has allowed big banks to answer solely to federal regulators." According to the Post, the Obama Administration "has supported the change, but the nation's largest banks have vigorously opposed the idea, saying it would lead to a conflicting patchwork of regulation." Reps. Melvin Watt and Dennis Moore "introduced an amendment to the legislation that seeks a middle ground," which "would dictate that national banks comply with state laws except when a state law has a 'discriminatory effect' on national banks in comparison with state-chartered banks."

Bloomberg News (10/21, Vekshin) also reports on the partisan split over "limiting state enforcement of national banks as the House Financial Services Committee debated a proposed consumer protection agency. Republicans said rules written by the Consumer Financial Protection Agency should prevail, sparing national banks from needing to comply with separate state laws. Democrats said state regulators should have power to impose tougher rules to protect their residents from lending abuses."

Dow Jones Newswires (10/21, Holzer) also reported on the debate, suggesting that Democrats are edging closer to siding with state regulators.

MarketWatch (10/21, Orol) similarly reports that the committee "moved closer to approving a contentious provision that would give state regulators more authority to impose consumer protection restrictions that go beyond federal laws on mortgage and other products issued by big banks. ... The Watt-Moore measure is being considered as part of a House Financial Services Committee effort to create a controversial proposed Consumer Financial Protection Agency, which Democratic lawmakers are seeking to set up to write rules for mortgage products and credit cards. Big banks are currently exempt from key state laws and they complain that with the measure they could be required to comply with 51 different sets of regulations, including state and federal rules, which would make doing business nationally more difficult." Law360 (10/20, Dye) also covered the story.

Originally posted at InjuryBoard by Wayne Parsons

The Jones Act in Hawaii: Ed Case and Jim O'Keefe Object to American Worker Requirments.

Wayne Parsons — Wed, 21 Oct 2009 06:42:34 GMT

Malia Zimmerman of The Hawaii Reporter reports on 20 October 2009 that a "Jones Act Lawsuit Will Test Control of Hawaii's Shipping Monopoly". Her story is about a bread maker in Hilo who claims that he had to pay $5.50 to ship a 50 lb. bag of flour to Hilo from the mainland and that the cost ruined his business.

Wait a minute, Malia!

I thought that the Jones Act was a law that allowed injured crew on ocean going vessels to get money for medical bills and wage loss (maintenance and cure), if they got injured, so they can get back to work!?

Here is what happened to O'Keefe & Sons Bread Bakers:

Big Island small business owner Jim O'Keefe operated the O’Keefe & Sons Bread Bakers in Hilo, Hawaii for 13 years before shutting down his extensive operation in 2008. His popular bakery closure left 50 people out of work, retail customers searching for other restaurants to buy deli and baked goods from, and several area businesses, grocery stores and resorts scrambling for other local places to buy wholesale baked foods.

O'Keefe claims that the cost of shipping made it impossible for him to stay in business. Those costs included shipping costs for flour and other food ingredients.

“I would buy a 50 pound bag of flour for $6 or $7 in the mainland, and by the time it landed in Hilo, it cost me $12.50 a bag,” O’Keefe says.

I have to tell you folks, I am not shocked by that shipping cost. Don't get me wrong. I am not an expert on making bread in a commercial enterprise, I'm just talking about $5.50 for 50 lbs.

The 2 oz. letter I just sent to Harriet (my sister) in Michigan for $0.42 seems to be more expensive per ounce than the flour that Mr. O'Keefe needs to make his bread. A 50 lb bag would cost $168 if the U.S. Postal Service carries it to Hilo and charges the same rate as for a letter. O'Keefe pays $5.50. And he is filing a lawsuit?

If regular people paid the equivalent rate of $5.50 for 50 pounds in shipping to Hawaii, a letter would cost 2 Cents in postage. That's right, a letter would cost $0.02, not $0.42 as it is today.

O’Keefe blames his business failure on the fact that the ships bringing the flour are required by the Jonhes Act to employee American workers. American crews get paid a living wage for America. I am very interested in what Hawaii working folks - who bought Mr O'Keefe's bread, think about his suggestion that we should not protect Hawaii and U.S. workers. He says that the cost of goods are ridiculously high in Hawaii because of the Jones Act and that stems from using an American work force on the ships.

The Jones Act is not about bread or bakers. It protects American workers. The Jones Act is a federal law that says all products shipped between American ports must be shipped in American made vessels by a crew that is 75 percent American. The law supports the high quality American work force. Wouldn't O'Keefe's lawsuit result in cheap labor from foreign countries taking over many of our industries and thowing our economy farther into the hole?

My guess is that American sailors who he wants to put out of work won't be buying his bread. O'Keefe wants to allow competition from what he calls "world shippers" and he complains that using American workers unfairly raises the cost of doing business for his bread company. O’Keefe says that what is running him out of business is being forced to use American workers.

Another claim he is making is that the cost that is running him out of business is "six figures over the life of his business". Let's think about that. "Six figures" over the life of his business is from $100,000 to $999,999. Let's make it $100,000. My thought is that if it was closer to $999,999, he would have used "7 figures". O'Keefe does not state what "the life of his business" is in years. Let's use 10 years. I'm guessing on that period of time but O'Keefe or his attorneys can Comment, and I will use their numbers.

$100,000 over 10 years is $10,000 per year. I wonder how much O'Keefe thinks a 50 pound bag of flour should cost to ship to Hawaii? Any ship will charge something for shipping. O'Keefe says that the $5.50 that he pays to ship a 50 pound bag of flour should be only one-third of that amount: $1.83. So that means the $3.67 per 50 pound bag of flour cost him his business.

I wonder what his position is about lawsuit abuse and tort reform? Is this a crazy lawsuit? Tort reform is on everyone's mind these days. Is this an example of a good lawsuit or a bad lawsuit?

Are all of the bakers in Hawaii going broke since they all have to buy flour and ship it into the state? Wouldn't everyone be on the same footing? Or did the customers choose other bread for other reasons? Was Mr. O'Keefe's business operation efficient? I am sure that the lawsuit will get into all of those details.

O'Keefe and his attorney John Carroll are asking Hawaii’s Chief U.S. District Judge, David Ezra, to rule, on December 7, 2009, that the Jones Act is “excessively expensive for Hawaii’s people and is in violation of the Fifth and Fourteenth Amendments as well as the Commerce Clause of the U.S. Constitution.” In essence I think that claim breaks down to the the core fact that forcing ships to us American workers whenthe bring goods to Hawaii from the west coast is un-American and violates the Constitution of the United States. The Hawaii Reporter summarizes their position:

One of the purposes of enacting the Jones Act, Carroll says, was to ensure the United States of America would be well equipped with a maritime fleet that could compete in a worldwide economy, but it has had the opposite effect: “Unfortunately, it created unconstitutional restrictions on commerce between the state of Hawaii and worldwide shippers as well as on interstate commerce.”

Because Hawaii is separated from the continental United States by 2,300 miles of ocean, he estimates “Hawaii is dependent on ocean shipping for at least 90 percent of every commodity used and consumed in the state.” That had a compound effect on agriculture and the ranching industry. “The expense of agricultural production became prohibitive, not only because of the inbound shipping cost of fertilizers, herbicides, and farm implements, but also due to the outbound shipping costs for our locally grown fruits, livestock and ornamental plants. Hawaii cattle ranchers are faced with an intolerable situation. They often have to transport their cattle, from Kawaihae to Vancouver B.C. on a Canadian owned Corral Lines to remain profitable. The cattle must then be trucked (often for 500 miles) into the U.S. to be fattened and sold. To go direct, some are flown on Boeing 747 aircraft,” Carroll says.

How do you feel about that?

Former Congressman Ed Case, D-Hawaii (2002-2007) is running for Congress with a platform that agrees with O'Keefe on this issue. Case would support a change in the Jones Act to eliminate the American crew requirement on ships coming to Hawaii. Case is apparantly also concerned that "one company" is the only one allowed to bring flour to Hawaii. According to the Hawaii Reporter story:

In a September 2003 Congressional speech seeking an exemption for Hawaii and other non-contiguous U.S. locations from the Jones Act, Case asked, “Is it fair that our federal government creates a monopoly over any key aspect of life in Hawaii? Is it fair that our federal government provides one company, effectively, with the ability to control, to dominate, the lifeline that we have between here and the Mainland for all of our goods? Because that’s exactly what the Jones Act does.”

Case noted that 97 percent to 98 percent of our goods come to Hawaii from the Mainland, all come by shipping. “When somebody gets a hold of our lifeline, that’s a dangerous sign for us. And we’re paying for it in spades, thousands of dollars for each and every citizen of this country and this state, far more money for businesses that employ people and have to deal with those goods and services. That’s not fair, and that’s not the way it should be. We have laws in this country against the creation of monopolies, we believe monopolies are bad. Yet in this case, a federal law creates a monopoly.”

While Case supports a Jones Act exemption for Hawaii, his primary opponent, Senate President Colleen Hanabusa, supports the Jones Act. She supports a crew of at least 75% Americans on ships coming to Hawaii with bread flour (and everything else). What do you think?

Originally posted at InjuryBoard by Wayne Parsons

Recall of Chinese Drywall? Don't Hold Your Breath!

Wayne Parsons — Tue, 20 Oct 2009 11:32:22 GMT

The Fort Myers (FL) News-Press (10/20, Wozniak) reports, "A summit beginning Wednesday in Beijing between the U.S. Consumer Product Safety Commission and its Chinese counterpart will press for companies in the Chinese drywall supply chain to take responsibility for their defective product. Commission Chairwoman Inez Tenenbaum will appeal to the Chinese companies to do 'what is fair and just,' commission spokesman Scott Wolfson said Monday." But "the mountain of obstacles to a recall appears insurmountable, say attorneys, academics and other experts in Chinese law and Chinese business culture. 'If China won't recall the defective products in its own market, what makes anybody think that they'll do it for products in the U.S?' asked Adam Minter, who blogs in Shanghai."

See my other articles on Chinese Drywall at my Injury Board Honolulu Blog.

In a separate article, the Fort Myers News-Press (10/20, Wozniak) reports on reasons why a Chinese drywall recall would prove difficult. Marshall Meyer, a professor at Wharton School and a global expert on Chinese business, said that "in this case, there are numerous distributors of a Chinese product that is difficult to trace because it is made by many companies and some of the product is not marked." CPSC spokesman Scott Wolfson said, "CPSC has sent more than 100 letters to U.S. importers, suppliers, manufacturers and home builders to obtain information about what they know, when did imported drywall come into this country and which communities was it used in."

Bill urges banks to assist Chinese drywall homeowners. Housing Wire (10/19, Prior) reported, "Congressman Glenn Nye (D-Va.) introduced a concurrent resolution in the House of Representatives calling for banks and mortgage servicers to assist homeowners struggling with toxic drywall, according to a release from his office." The legislation "urges mortgage servicers and banks to provide temporary forbearance on their mortgage payments to help families afford the costs of additional residency. 'Recognizing this issue in Congress and formally asking lenders to be a part of the solution will give families more leverage when working with banks or mortgage holders who may be unfamiliar with the seriousness of this problem,' Nye said."

Drywall inspections underway. WVUE-TV New Orleans (10/19, Parker) on its website reported, "Preparations are ramping up in preparation for the first trials in cases of toxic Chinese drywall. Judge Eldon Fallon has ordered a meticulous inspection of more than two dozen suspected homes across the country." All the findings "are being recorded for the judge, as they will be an important tool in court during trial. Plaintiffs' attorneys say they approximate a cost of $100,000 per home or a third of the cost of the home to begin to make homeowners whole." They believe the total cost "to settle the lawsuits would be staggering."

Florida soldier's home contaminated with Chinese drywall. WPTV-TV West Palm Beach, FL (10/19, Cashmere) on its website reported on Colin Green, a soldier from Port St. Lucie, FL, who "returned from overseas to his two year old home" only to find it contaminated with Chinese drywall. "Time is of the essence but time isn't exactly what Green has in abundance. In less than a week he heads back to serve his country at Fort Bragg, North Carolina."

Originally posted at InjuryBoard by Wayne Parsons