PG&E filed today its answer to the lawsuits brought by the victims of the San Bruno fire. This was PG&E’s first opportunity, legally speaking, to publicly account for itself in court.

PG&E owned up to nothing.  Instead, the document lists the 32 reasons why PG&E says it is not responsible for the fire and the harm that resulted from it.  Some of the most interesting:

State of the Art. PG&E says it is not responsible because the pipe that exploded was “state of the art.” (Paragraph 20.)

Does PG&E really believe that a high pressure pipe with missing welds and welds that go only halfway through is “state of the art”?

Looks like PG&E is taking issue with the NTSB, which found that the pipe that exploded failed to meet the minimum standards in effect in 1956.

Comparative Negligence. PG&E says plaintiffs’ injuries may have been caused by persons other than defendants “who may have been legally responsible under the doctrine of comparative negligence [or] contributory negligence.” (Paragraph 9.)

What does this mean? In plain English, PG&E is saying that plaintiffs themselves are to some extent responsible for their own injuries.

Statute of Limitations. PG&E says that plaintiffs claims are barred by the statute of limitations. (Paragraph 3.)  But heck, it hasn’t even been a year yet.

In sum, PG&E admits nothing, denies everything, and blames others, including its victims.  

PG&E ends with a request to the court that plaintiffs be required to pay it “for costs of suit [and] that plaintiffs take nothing.”

That’s kind of harsh. Does PG&E really believe that plaintiffs should walk away without any compensation at all?

We hear a lot about frivolous lawsuits. But once in a while you run across a frivolous defense.

When someone is injured during a sports activity, the one who caused the injury will likely raise a defense called "assumption of risk". The wrongdoer argues that he’s not to blame because the law didn’t require him to protect the participant from the particular risk of harm involved in the claim. Whether the doctrine applies to protect the wrongdoer depends on two factors: 1) the nature of the sport, and 2) the relationship between the parties.

For example, a golfer who suffers a brain injury when struck in the head by a sliced golf shot on the course would likely be barred from making a claim against the golf course or the golfer who made the bad shot. The risk of getting hit by a ball is inherent to the sport of golf and so the golfer, by participating in the sport, “assumed the risk”.
 

The Blue Ribbon panel appointed by the CPUC has blasted PG&E, suggesting that PG&E knew about the weaknesses in its system for years before the explosion but did essentially nothing.  According to Steve Johnson, writing for the San Mateo Times, the panel noted:

that an internal PG&E review three years before the San Bruno explosion had listed the company’s gas system as among several catastrophic risks facing the utility. . .Yet, when the expert panel checked to see how PG&E responded to the red flags, it was dismayed.

The panel’s finding really isn’t much of a surprise.  Weeks after the explosion, I wrote here that PG&E knew about a potential catastrophe, but failed to warn its customers.  Martin Ricard published that story way back on September 23.

Now the Department of Justice and the San Mateo County District Attorney’s office are launching a criminal investigation.  What does that mean for the victims?  Generally, criminal investigations mean delay for civil lawsuits.  Management representatives, when questioned under oath, tend to assert their 5th amendment rights against self-incrimination and refuse to testify until the criminal proceedings are concluded.

We’ll see what PG&E management does here.

The panel’s full report is here.

A parent can sometimes be liable for the harm his or her minor child causes to others.

Here are some situations in which, in California, a parent is automatically liable:

  • When the parent has signed  the child’s driver’s license application, and the child’s driving hurts someone (but the parent’s liability is limited to $15,000 per person and $30,000 per incident);
  • When the child drives the parent’s car with the parent’s permission, regardless of whether the parent has signed the license application (liability limited to $15,000 and $30,000 Mug Shot per incident);
  • When the child hurts someone with a firearm supplied by a parent (liability limited to $30,000 per victim and $60,000 per incident); and
  • When the child willfully injures someone (liability limited to $37,100).

In the situations listed above, the parent is liable even though he or she was acting responsibility. But if the parent was not acting responsibility, his or her liability for the harm the child causes will be unlimited. Thus, a parent will be liable for the full amount of the harm  the child causes in the following situations:

  • When the parent provides the child alcohol and the child harms someone as a result;
  • When the parent entrusts a car, weapon, or other dangerous instrumentality to a child who the parent should have known was not experienced enough to use it safely; and
  • When the parent fails to properly supervise or control a child who the parent knew, due to the child’s prior misconduct, could harm others.

Last month several California hospitals were praised by the federal Health and Human Services Agency. This month a dozen hospitals were penalized for significant errors. The California Department of Public Health (CDPH) announced twelve California hospitals have been assessed administrative penalties after it was determined the facilities’ noncompliance with licensing requirements caused, or was likely to cause, serious injury or death to patients. The department levied a total of $650,000 in fines for errors that occurred between 2008 and 2010. Most of the errors involved medication mistakes or surgical tools left inside patients after operations.

1. AHMC Anaheim Regional Medical Center, Anaheim, Orange County.
2. Contra Costa Regional Medical Center, Martinez, Contra Costa County.
3. Dominican Hospital, Santa Cruz, Santa Cruz County.
4. Emanuel Medical Center, Turlock, Stanislaus County.
5. Kaiser Foundation Hospital, San Francisco, San Francisco County.
6. Mills-Peninsula Medical Center, Burlingame, San Mateo County.
7. Palomar Medical Center, Escondido, San Diego County.
8. Pomerado Hospital, Poway, San Diego County.
9. Promise Hospital of East Los Angeles, Los Angeles, Los Angeles County.
10. Scripps Memorial Hospital – Encinitas, Encinitas, San Diego County.
11. Scripps Memorial Hospital – La Jolla, La Jolla, San Diego County.
12. Sharp Memorial Hospital, San Diego, San Diego County.

California law requires hospitals to report to the CDHP their noncompliance with their own policies and procedures. The CDPH investigates the reports and issues fines. If problems persist, the hospitals could lose their state operating license or their reimbursements from Medicare and Medi-Cal, California’s Medicaid program.

In addition to administrative penalties, hospitals may be held responsible by the injured patient. When it is suspected that a hospital’s error injured a patient, the hospital’s policies and procedures are crucial to showing the hospital’s accountability.  

The Food and Drug Administration approved Yaz and Yasmin based on research that Bayer provided saying that the drugs were safe. We’ve been saying all along that the research was suspect and that, in fact, the drug is more risky than other birth control pills with no added benefits. The danger, we said, was the drugs’ unique ingredient, drospirenone.

In April, two independent studies were published concluding that Yaz and Yasmin are, in fact, two to three times more likely to cause potentially lethal blood clots than competing birth control pills. The studies can be found here and here.

Now the FDA has taken notice. Yesterday, it released a "safety announcement" concerning the drugs. As part of it’s "ongoing safety review of birth control pills that contain drospirenone" (Yaz and Yasmin were the first and hold the largest market share), the FDA says it will take another look at the risks the drugs carry. It will look most closely at the risk of death resulting from blood clots:

A blood clot that forms in a deep vein in the body is called a deep vein thrombosis (DVT). A DVT is a rare side effect of taking birth control pills. A blood clot can break loose from the vein, move through the body to the lung, and cause a serious problem in the lung, called a pulmonary embolism (PE). This can lead to death.

The FDA says that it will do two things to see whether Yaz and Yasmin do, in fact, have a higher risk of blood clots and death. First, it will be looking closely at the new studies. Second, it has commissioned its own "large study exploring the association of blood clots with hormonal contraception." It says that the results of that study are "currently being finalized and reviewed."

Depending on what it determines, the FDA could (1) do nothing, (2) work to take the drugs off the market, or (3) order a stronger warning so that women who use the drugs know the risks.

Meanwhile, the 6000 lawsuits brought by women injured after using the drugs march toward trial. The first cases will be tried next year.
 

Judge Dylina started out today by explaining that he believes he was selected to be the judge for the San Bruno Fire cases because of his experience with complex cases and also his experience as a settlement judge.  No surprise there.  But then he made clear that the San Bruno Fire cases are the court’s first priority. That’s unusual. In general, judges say that all cases are equally important, and that every plaintiff must wait his turn. But the judge stated repeatedly that the San Bruno residents have suffered horrific losses, and that the cases are of special importance to the community and to people of San Mateo County generally. For that reason, they are Courtroomto be given priority over other cases.  The judge says he intends to get the cases resolved as quickly as possible.

Included in the coordinated lawsuits is one brought by PG&E shareholders against PG&E management. The shareholders claim that management knew about the pipeline problems and did nothing to stop the explosion from happening. By allowing the explosion, the lawsuit claims, management hurt the price of PG&E’s stock. Judge Dylina "stayed" — or froze — that lawsuit. He ruled that the priority was the San Bruno residents, not the shareholders. Allowing the stockholder lawsuit to proceed would take away time he could better spend on the cases involving the residents. So he will turn to the shareholders actions down the road, only after the residents’ cases have been "substantially resolved."

There are two class actions included in the cases. Judge Dylina indicated that he did not think the class actions were appropriate. It is highly unlikely they will be proceeding to trial. Each victim suffered unique harm. Thus, each needs his or her own lawyer, and each lawsuit needs to be separately brought.  

All this is good news for victims.  At long last, the cases are finally on the right track. Judge Dylina set the next hearing for June 30. At that time, a more detailed schedule will be set. Until then, plaintiffs are not allowed to force PG&E to turn documents over or have witnesses appear for depositon. But after June 30th, according to the judge, "the floodgates will open."

When a wrongdoer causes injury, he must pay the victim’s hospital bills. If the victim happens to have insurance, the insurance company will often settle those bills before trial. Should the wrongdoer be required to pay the victim for the full amount of the hospital bills? Or only the amount the insurer paid to settle the bills? That was the issue argued today before the California Supreme Court, in Howell v. Hamilton Meats.

The question is a difficult one. Plaintiffs note that, under the collateral source rule, the one who caused the injury shouldn’t benefit simply because the person he injured maintains insurance. On the other hand, defendants argue that they shouldn’t have to pay for medical bills for which the victim was never on the hook. 

The Court’s decision is due in 90 days.

Here are some of the questions that the justices asked and the answers that the lawyers gave. (I’ve paraphrased liberally.)

To the Defense (Represented by Mr. Tyson and Mr. Olsen):

Q: Isn’t the part of the bill that a hospital writes-off for the insurer properly included as “damages” that that the injured party has suffered?

A: No, because the hospital agreed with the health care insurer to write off those amounts before the victim ever arrived at the hospital. Because the victim never incurred those amounts in the first place, they aren’t “damages.”

Q: Why should victims who have never paid premiums and who are thus uninsured be entitled to recover the full amount of their medical bills, while those who have shelled out for insurance for their whole lives recover less? It seems like we’d be treating the uninsured victim better than victims who are insured, no?  Isn’t that the reason for the collateral source rule, to make sure people aren’t penalized for having insurance?  

A:  Were the Court to limit recovery to the amount of the medical bills that were actually paid, it would not be penalizing people for having insurance. The person who has insurance never had to worry about paying his medical bills. That benefit is preserved. 

Q: Wouldn’t allowing the wrongdoer to get off paying less than the full amount of the bills when the victim has insurance be a windfall to the wrongdoer? Wouldn’t he be getting a benefit that the victim, not the wrongdoer, paid for?

A: There would be no windfall because the wrongdoer is in each case paying the actual amount for which the victim is responsible to pay. No more, no less.

To the plaintiff (Represented by Mr. Simms):

Q:  A plaintiff can recover only “damages suffered.” That means harm to plaintiff. If the plaintiff is not required to pay the full amount of the bills, because insurance negotiates them down, how can you say the plaintiff has suffered damages in the full amount of the bill?

A: The plaintiff signs a contract when he walks in the hospital to pay the full amount of the bills. The fact that his insurer later pays less than the full amount to settle the bills doesn’t mean the plaintiff never incurred them. 

Q: But if the plaintiff doesn’t actually come out of pocket to pay them, how is that damages under the Civil Code?

A: When an injured party files bankruptcy, he is no longer obligated to repay the bills, either. But we don’t let the wrongdoer off the hook in that case. Why should we here?

Q: Why should plaintiff be allowed to collect and keep the amount that the hospital has written off due to its agreement with the insurer? Isn’t that a windfall to the plaintiff?

A: There is no evidence in the record that the injured party will keep the amounts written off if that amount is awarded as damages. The insurer may still have a right of reimbursement and the health care provider may have a lien against the recovery.

 Update: Supreme Court Decides:Interview with Gary Simms

The U.S. Department of Health and Human Services has recognized 37 U.S. hospital and health care facilities for their efforts to prevent hospital-associated infections (HAIs), a leading cause of death in the United States. The awards recognizes individuals and institutions for their efforts to reduce ventilator-associated pneumonia and bloodstream infections associated with central intravenous lines.

HAIs are infections that are acquired while patients are receiving medical treatment for other conditions. One in every 20 hospital patients acquires an infection related to his hospital care. HAIs can have devastating emotional, financial and medical consequences.

“People enter a hospital expecting to get healthier, not sicker,” said Assistant Secretary for Health, Howard K. Koh, MD, MPH. “We applaud hospitals for their efforts in improving the quality and safety of health care for all Americans.”

Awards were conferred on two levels, according to specific criteria tied to national standards. The “Outstanding Leadership Award” went to teams and organizations that sustained success in reaching their targets for 25 months or more. The “Sustained Improvement Award” recognizes teams that demonstrated consistent and sustained progress over an 18- to 24-month period.

Of the 37 Initial award recipients one Northern California hospital — Seton Medical Center in Daly City — was recognized in the category “Achievements in Eliminating Ventilator-Associated Pneumonia” with an “ Outstanding Leadership Award”. Three Southern California facilities received “Sustained Improvement” Awards: St. Joseph Hospital, Orange; Huntington Memorial Hospital, Pasadena; and Palmdale Regional Medical Center, Palmdale.

 

Health care facilities – whether hospitals, nursing homes, or outpatient facilities – can be dangerous places. One risk is “hospital-associated illnesses,” also called "hospital-acquired illnesses." 1.7 million patients contract HAIs each year. In 2002, nearly 100,000 patients died from HAIs. The fatalities broke down as follows:

36,000- pneumonia,
31,000 – bloodstream infections,
13,000 – urinary tract infections,
8,000 – surgical site infections, and
11,000 – infections of other sites.

Many HAIs are caused by breaches of infection control practices and procedures, unclean and non-sterile environmental surfaces, or ill employees.

Ventilator-associated pneumonia (VAP) occurs in people who are on mechanical ventilation through an endotracheal or tracheostomy tube. VAP results when and infection floods the alveoli – small, air-filled sacs in the lung responsible for absorbing oxygen from the atmosphere. VAP is distinguished from other kinds of infectious pneumonia by the different types of microorganisms responsible, antibiotics used in treatment, methods of diagnosis, ultimate prognosis, and effective preventive measures. The organism associated with VAP is most often Pseudomonas.

Central line-associated blood stream infections (CLABSIs) are blood infections introduced by a central venous catheter, or tube placed in a large vein in a patient’s neck, chest, or groin to administer medication or fluids or to collect blood samples.

Urinary tract infections (UTIs) afflict patients with indwelling urinary catheters, patients undergoing urological manipulations, long-stay elderly male patients and patients with debilitating diseases. The organisms responsible may originate from the patient’s own body or from a moist site in the hospital environment. Pathogens causing HAI UTIs tend to have a higher antibiotic resistance than simple UTIs.

Hospitals have sanitation protocols regarding uniforms, equipment sterilization, washing, and other preventative measures. Thorough hand washing and/or use of alcohol rubs by all medical personnel before and after each patient contact is one of the most effective ways to combat hospital associated infections. Careful use of antimicrobial agents, such as antibiotics, is vital.