The Washington Times had an article about the attacks on the 7th Amendment to the Constitution.

Most Americans can identify only a few of the Amendments of the Bill of Rights including the Seventh Amendment (the right to a civil jury trial).  The right to a jury trial is the most important right given to us in the Constitution. How do we know this? It is the only right specifically mentioned in two of the amendments to the Constitution. The right to a jury trial in a criminal case is granted in the Sixth Amendment and the right to a jury trial in a civil case is guaranteed in the Seventh Amendment.

America’s founding fathers revered the jury trial system, for both the civil and criminal case. In 1751, in South Carolina, the state legislature declared that “any person who shall endeavor to deprive us of so glorious a privilege of trial by jury,” was an enemy of the people.

In 1776, George Mason wrote in Virginia’s Declaration of Rights, “The ancient trial by jury is preferable to any other and ought to be held sacred.”  It is held sacred, except by the big business corporatists who believe that rights exist only for the corporate elites and not for the average American citizen.

Unfortunately, President Trump has bought into the myth of the frivolous lawsuit.  Frivolous lawsuits are a fable made up by the Chamber of Commerce and big insurance, which want to deny citizens their day in court. Lawyers don’t file frivolous lawsuits because they don’t make money from them. Lawyers can and sometimes are sanctioned for filing a lawsuit that is deemed to be frivolous.

The only other defense of the Seventh Amendment comes from the House Freedom Caucus. This liberty-minded group in the House of Representatives has risen to the defense of the Seventh Amendment before. But with the House Freedom Caucus consisting of only thirty-two members, out of the 237 Republicans in Congress, it is really questionable how much they can do.

Millions of Americans, including recently President Trump, have said, “I’ll see you in court.”  If Tort Reform is adopted, it will be the beginning of the end for the Seventh Amendment and the right of Americans to sue.

Thomas Jefferson said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

President Trump would do well to heed the words of President Jefferson and abandon the unconstitutional idea of Tort Reform.

Responsibility and accountability – even for the powerful – are rooted into the core of our legal system. This country’s founders knew that a democracy needs a court system that empowers people to protect themselves by holding the powerful to account. That’s why the Constitution guarantees each person the right to a trial by jury. The founders feared unaccountable power in the form of the King of England against his “subjects.” 21st Century America may not have a king, but it does have billion dollar corporations touching every part of every person’s life. These corporations now seek the kind of unaccountable power our founders sought to protect against, and they’re seeking that power by destroying your constitutional right to a trial by jury.

Politicians who are in the pockets of large corporations and insurance companies have devised a plan specifically aimed at destroying our right to hold those in power accountable for their misdeeds. Their plain is to enact laws that will all but destroy your right to use the judicial system to protect yourself. They have introduced bills which, if passed, will enact arbitrary changes to courts all across the country, including:

  • Limiting compensation for injuries caused by medical professionals, including doctors, hospitals, nursing homes, and medical device manufacturers,

to $250,000.00, regardless of how much that injury devastated your life

or the extent of malfeasance by the medical professional or company.

  • Eliminating class-action law suits, which would essentially destroy the ability to bring the kinds of cases that keep us safe
  • Eliminate Individual States Law regarding lawsuits and forcing all cases to Federal Court
  • Allowing insurance companies to make “payments” rather than paying full compensation.

We must tell our government to put people first and stop trampling on our rights. Javerbaum Wurgaft has been protecting citizens of New Jersey and New York by demanding that everyone is treated fairly, regardless of gender, race, or economic status. Please join us in demanding that Congress do the same. We must ban together and contact our representatives to demand they say NO to these outrageous attacks on our rights. Go to each link below and tell them NO!

The Washington Post reported that the House Republicans are advancing a series of bills that would make drastic changes to the civil justice system long sought by insurance company lobbyists and global corporations, including a cap on medical malpractice awards and additional roadblocks for classes of people seeking to sue jointly to address harm.

Civil rights and consumer groups oppose the measures, saying they would severely limit the ability of average Americans to pursue legal remedies from powerful institutions. In a letter to congressional leaders, opponents said the measure would have a “chilling effect” on a broad range of complaints, including civil rights violations, employment discrimination and environmental abuses.

One proposal would limit monetary awards in medical malpractice suits to only $250,000 for noneconomic damages, which include pain and suffering, mental anguish, loss of enjoyment of life, and permanent scars.  The caps would apply broadly to all manner of medical malpractice, including errors in surgery, side effects from unsafe drugs, abuse and neglect in nursing homes, and sexual assault by doctors.

 None of the four proposals has been aired in a congressional hearing. House leaders “are turning the legislative process into a kind of subterranean operation,” said Rep. Jamie B. Raskin (D-Md.), a leading opponent of the bills. “While the populace is spellbound by [Trump], the conservatives in Congress are dismantling access to justice and our tort civil liability system.”

Joanne Doroshow, executive director of the Center for Justice& Democracy at New York Law School, called the fast-paced legislative campaign to overhaul multiple parts of the civil court system “unprecedented.”

“These bills, put together, would exonerate large corporations and the health-care industry for any kind of harm they may cause everyday people,” Doroshow said.

Doroshow and others said the Fairness in Class Action Litigation Act would squelch most class-action lawsuits, which typically involve plaintiffs with a wide variety of similar complaints.

The Huffington Post reported that one provision in the GOP plan to replace Obamacare is already causing angst for people between ages 50 and 65: raising the ceiling on their premiums, which in all likelihood means they will pay more for health insurance. That’s why AARP and other senior advocacy groups are gearing up to fight what could be premium hikes of 25 percent or more for those still too young to qualify for Medicare.

But there’s another change in the Republican bill capable of causing even greater pain to older Americans and the people who love them: Changes to Medicaid that could exacerbate the long-term care crisis in which many Americans who need nursing homes can’t afford them.

Currently, states receive as much federal Medicaid money as it takes to provide benefits for everyone who is eligible. The GOP proposal would instead give states a block grant ― a lump sum per person ― and allow each state to decide how to spend it. Critics say that transferring spending power to states could skirt protections that federal law provides for vulnerable older people.

An estimated 70 percent of us are expected to eventually need the services of a nursing home, according to the National Association of Home Care and Hospice. But Medicare ― the health care system for older people that kicks in at 65 ― doesn’t cover extended stays in nursing homes. Instead, many people in need of nursing home services who lack private long-term care insurance must use up their assets until they qualify for Medicaid, which does cover some nursing home stays.

Transferring federal money to states may put elderly people and their families in a tough spot.

“Will states choose to spend on nursing homes, or things like doctor care for young children?” asked Jack Kahn, a veteran retirement health-care reporter and contributing editor of the Franklin Prosperity Report. Old and young are the country’s biggest consumers of health care.

Kahn said he fears that cuts in reimbursements to nursing homes could lead to more nursing homes just flat-out refusing to take Medicaid patients, which some already do.

“This could make the long-term care crisis even worse,” Kahn told The Huffington Post.

What’s going to happen to all those elderly people who can’t afford a nursing home?

The following is a statement from American Association for Justice (AAJ) CEO Linda Lipsen in response to the U.S. House of Representatives passing “Fairness in Class Action Litigation Act and Furthering Asbestos Claim Transparency Act” (H.R. 985):
“Today, the House of Representatives made it clear that it would rather shield powerful corporations from being held accountable for scamming, injuring, and discriminating against Americans, than protect our right to pursue justice. It is offensive that Congress would go so far to protect corporations that it would eliminate Americans’ ability to join together to hold them accountable in court.
“Sadly, the demolition of the civil justice system doesn’t stop there. H.R. 985 also puts the interests of the asbestos industry, which has knowingly poisoned people for decades, before the rights of veterans, workers, and innocent bystanders who are suffering and dying from asbestos related diseases. It is wrong for our representatives in government to delay and deny their compensation at the behest of the companies responsible for their deaths.
“The House has rushed H.R. 985 through Congress without a hearing and without input from legal experts or people who would be impacted by the bill – hoping that nobody would notice their ill-conceived plan to deprive Americans of their rights. This one-sided legislation only advances the interests of corporations that have killed and cheated Americans. The Senate should recognize this ridiculous bill for what it truly is – a corporate handout – and reject it.”
Background on H.R. 985
The Fairness in Class Action Litigation Act severely limits the ability of consumers and workers to join together as a class to stand up to powerful corporations that have wronged them. The civil justice system is often the only way Americans can hold wrongdoers accountable for causing widespread harm to thousands or millions of consumers and workers.
The Furthering Asbestos Claim Transparency Act forfeits the privacy of individuals suffering from asbestos disease and their families. The bill puts the private information of asbestos victims – including their names and asbestos exposure histories – into a publicly accessible database, making them vulnerable to identity theft and online predators. The bill re-victimizes families impacted by asbestos disease, while doing nothing to protect Americans from future asbestos exposures.

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The American Association for Justice works to preserve the constitutional right to trial by jury and to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Next week, the House will vote on a series of bills that will make it difficult – if not impossible — for Americans harmed by corporate misconduct to seek justice in our nation’s courts.

These anti-civil justice bills are:

  • H.R. 1215, the “Protecting Access to Care Act,” which undermines state law and eliminates the rights of Americans to bring certain health care claims when they are injured by medical malpractice and dangerous drugs and devices, or when they or their families are injured or killed in a nursing home;
  • H.R. 985, the “Fairness in Class Action Litigation Act,” which will strip Americans of the ability join with others to bring consumer, worker, or civil rights class actions against corporations;
  • H.R. 906, the “Furthering Asbestos Claims Transparency Act,” which helps the asbestos industry in delaying and denying compensation to asbestos victims dying of asbestos disease and threatens the privacy of asbestos victims and their families;
  • H.R. 725, the “Innocent Party Protection Act,” which allows corporate defendants to more easily move a case into a more favorable forum;
  • H.R. 720, the “Lawsuit Abuse Reduction Act,” which forces a court to impose sanctions on attorneys who bring novel legal cases;
  • H.R. 732, the “Stop Settlement Slush Funds Act,” which prohibits non-profits and charities from being able to receive compensation from corporations found to have committed widespread harm to the public.

Before Congress votes on these bills, it is imperative that they hear from the people who would be impacted the most by this legislation.  Please contact your Representative today.

CBS Denver reported that Travis Young, a nurse’s assistant, who allegedly threw a dementia patient against a concrete wall, shattering her femur and contributing to her death, went before a judge last week.

Travis Young faces a class six felony assault on an at-risk adult charge, which carries a possible four year sentence if he is convicted.

Young worked in 2014 at the Olathe nursing facility where Charlotte Fischer was placed.  Young had received several complaints for abuse by other residents before the incident occurred.

Fischer’s granddaughter Amy said she never gave up pushing for justice.

“They tried so hard to make it go away – without me knocking on the door saying ‘Grandma didn’t deserve to die like this,’ it probably would have,” Amy told CBS4 in her first interview about the situation.

“You put someone in a nursing home not out of want, out of ‘You have to,’ and you want them to be protected and cared for. You would never assume they would be put in a position where they will be injured or harmed and scared and left alone,” Amy said.

Amy said it took two days before anyone called to tell her there had been an incident. Colorow officials claimed the frail woman — who weighed less than 100 pounds — had hit herself, causing the serious injuries.

“They left her in bed with a shattered femur, with no pain medicine other than Tylenol and they didn’t tell me that she had been injured any other way. They told me that she had hit herself in the head,” Amy said.

Days later, Fischer passed away.

“I can’t imagine the pain she was in for those days they left her there,” Amy said.

Amy says she had a feeling the administrators were not telling her the whole story. She started what has become a three year campaign, pushing the DA to continue looking into the case.

The coroner eventually ruled her death a homicide and a charge has now been filed in the case.

“I’m very thankful there’s finally a day in court,” Amy said.

 

 

CNN conducted a special investigation into the epidemic of sexual assaults and rapes in nursing homes.  “The unthinkable is happening at facilities throughout the country: Vulnerable seniors are being raped and sexually abused by the very people paid to care for them.”

“It’s impossible to know just how many victims are out there. But through an exclusive analysis of state and federal data and interviews with experts, regulators and the families of victims, CNN has found that this little-discussed issue is more widespread than anyone would imagine.”

“Even more disturbing: In many cases, nursing homes and the government officials who oversee them are doing little — or nothing — to stop it.”

“In cases reviewed by CNN, victims and their families were failed at every stage. Nursing homes were slow to investigate and report allegations because of a reluctance to believe the accusations — or a desire to hide them. Police viewed the claims as unlikely at the outset, dismissing potential victims because of failing memories or jumbled allegations. And because of the high bar set for substantiating abuse, state regulators failed to flag patterns of repeated allegations against a single caregiver.”

It’s these systemic failures that make it especially hard for victims to get justice — and even easier for perpetrators to get away with their crimes.”

“Some accounts of alleged sexual abuse come from civil and criminal court documents filed against nursing homes, assisted living facilities and individuals who work there. Other incidents are buried in detailed reports filed by state health investigators.”

“Most of the cases examined by CNN involved lone actors. But in some cases, a mob mentality fueled the abuse. And it’s not just women who have been victimized.”

“Despite the litany of abuses detailed in government reports, there is no comprehensive, national data on how many cases of sexual abuse have been reported in facilities housing the elderly.”

“More than 16,000 complaints of sexual abuse have been reported since 2000 in long-term care facilities (which include both nursing homes and assisted living facilities),according to federal data housed by the Administration for Community Living. But agency officials warned that this figure doesn’t capture everything — only those cases in which state long-term care ombudsmen (who act as advocates for facility residents) were somehow involved in resolving the complaints.”

“The result: CNN exclusively found that the federal government has cited more than 1,000 nursing homes for mishandling or failing to prevent alleged cases of rape, sexual assault and sexual abuse at their facilities during this period. (This includes some of the cases provided by the Centers for Medicare & Medicaid Services.) And nearly 100 of these facilities have been cited multiple times during the same period.  Complaints and allegations that don’t result in a citation, which the government calls a “deficiency,” aren’t included in these Medicare reports. In addition, national studies have found that a large percentage of rape victims typically never report their assaults. So these numbers likely represent only a fraction of the alleged sexual abuse incidents in nursing homes nationwide.”

“Yet the facilities that currently house more than 1 million senior citizens typically pay low wages to nursing assistants (about $11 or $12 an hour), making it difficult to attract and keep quality workers. And during the most vulnerable hours, the night shift, there are often few supervisors.”

The article discusses numerous horrific examples; I encourage you to read the full article.

Legal advocates, government regulators, criminal investigators and medical experts agree that sexual abuse in nursing homes can be extremely challenging to prevent and detect. But they say many facilities should be doing much more to protect vulnerable residents.

  1. “When you have a sexual assault claim, you shouldn’t go to a conclusion she’s a problem patient. You should investigate as a sexual assault until proven otherwise.” — Dave Young, district attorney for Colorado’s 17th Judicial District
  2. “Preserve evidence! Don’t bathe or change clothing, sheets, etc., when an assault is suspected.” — Sherry Culp, Kentucky long-term care ombudsman
  3. “Most abuse is undetected and never reported mainly because observable signs are missed or misinterpreted. A little training could go a long way.” — Tony Chicotel, staff attorney at California Advocates for Nursing Home Reform
  4. “As with nearly every type of abuse and neglect seen in nursing homes, the better staffed the facility the less likely sexual abuse will occur. This is a crime of opportunity, so the more supervision the better.” — Kirsten Fish, elder abuse attorney
  5. “There needs to be a reporting system. …The system doesn’t keep track of cases that haven’t been substantiated, [and] their rules for substantiating a complaint are just astronomical. It’s virtually impossible to substantiate a complaint.” — Lt. Chris Chandler, Waynesville, North Carolina, Police Department

 

 

The Star-Tribune had an article about one family’s fight for justice for their neglected dad.  Gerald Seeger was a resident of an assisted living facility, Lighthouse of Columbia Heights.  The facility failed to respond promptly when Seeger, repeatedly vomited and screamed for help while pointing to his badly swollen stomach. After hours of suffering, Seeger died of complications related to a common hernia. State investigators later cited the facility for failing to provide timely medical care.

In 2014 when Joan Maurer arrived at her father’s room at Lighthouse. She was shocked by what she found. Her father, a florist who just a week earlier had been laughing and stomping his foot to old-time music, had turned ashen and was vomiting in plastic cups, she said. Photographs from that day show that his stomach had swollen like a balloon.  Despite Seeger’s visible suffering, the staff had not called for emergency help.

“I knelt by his side, grabbed his hand and said, ‘Dad, I’ll get you to a hospital.”  Maurer called 911, and on the ambulance ride to the hospital, Seeger rated his pain as a “10 out of 10” on the pain scale, state records show. “I was horrified,” Maurer said. “I never want to see another human being in that much pain for as long as I live.”

Investigators from the state Department of Health later found multiple lapses in Seeger’s care. Despite a history of hernia problems, staff at the senior home failed to follow a physician’s instructions and notify medical professionals immediately if he had any pain or tenderness in the groin area, state records show. On the evening and overnight shift before he died, Seeger complained of stomach pain and vomited; but such symptoms were not promptly reported to a nurse, state investigators found.

His daughter had a strong legal case so she sued over the sudden death of her father.  But Maurer is still fighting for a chance to hold Lighthouse accountable in court. Attorneys for the facility claim that she forfeited the constitutional right to sue when she signed a densely worded contract that forced the family into private arbitration if a dispute arose, even one involving a wrongful death claim.

I never believed they would arbitrate my father’s life like he’s a piece of paper, and not a living, breathing human being,” said Maurer.

Over mounting objections from consumer groups and regulators, arbitration agreements like the one Maurer signed are proliferating in the senior care industry. Hundreds of Minnesota nursing homes and assisted-living centers now request that elderly people sign arbitration clauses on admission. The clauses require them to forfeit their right to a court hearing and, instead, lock elderly residents into a secretive process for resolving claims. Even in cases of extreme neglect and death, nursing homes use the clauses to block residents and their families from pursuing lawsuits.

 In Minnesota and nationally, more attorneys are seeking to throw out arbitration clauses, particularly in cases where there is evidence that elderly residents were coerced into signing the contracts. In a recent case, the Kentucky Supreme Court refused to enforce arbitration agreements in three wrongful-death cases, ruling that legal representatives of nursing-home residents lack the authority to waive another’s “God-given right” to a jury trial.

McKnight’s reported that the Trump Administration will continue the Obama Administration’s policy of discovering and punishing waste, fraud, and abuse in the nursing home industry.  However, based on Trump’s history of fraud himself, and the fact that he chose Tom Price as Secretary of DHHS, it does not appear that discovering and punishing health care fraud is on the top of the agenda.

Attorneys and former DOJ officials interviewed by Bloomberg BNA predicted that the new administration is likely to preserve several Obama-era policies in place. Those include the use of data analysis in fraud investigations, and the Yates plan to prosecute more individuals.

The department’s efforts to combat fraud in post-acute care will also likely remain a top priority, said Zane David Memeger, an attorney with Morgan, Lewis & Bockius. That may include the the DOJ’s regional nursing home task forces, launched last year to target “grossly substandard” facilities.

“We have an aging population, and nursing homes and home health, they’re vulnerable to fraud,” Memeger said.

He also indicated that fraud in the pharmaceutical and medical device industries will continue to receive DOJ scrutiny.