Alice Paylor, 2013-14 S.C. Bar President, published a call to arms for SC lawyers on the South Carolina Bar website.  I would to thank the SC Bar for allowing us to share this information. Here it is below.

"The political season has blossomed, and a few people are again attacking the Constitutional principles that are essential to a free society. Every day lawyers step up to the plate and ensure that each citizen is afforded the rights guaranteed to us all and essential to protect our liberties. It would be refreshing to see comment on the merits of positions rather than attacks seeking to evoke a gut response. I keep hoping.

In the meantime, your Bar is taking steps to defend the legal profession against blanket political attacks against lawyers and those who criticize certain types of lawyers. For example, I submitted letters to media outlets in response to coverage of a recent press conference featuring comments suggesting that there is a conflict of interest between representing criminal defendants and representing South Carolina as its governor.

The truth is that each and every one of us has a professional duty to ensure that justice is not rationed but is available to everyone. It is the job of a criminal defense lawyer to ensure his or her client has a fair trial, not to defend the crime.

Also, the Bar recently launched a website called sclawyerfacts.org. This site references false claims perpetuated in the media and provides education about the legal profession and the service provided by lawyers to the citizens of South Carolina. The site also features videos, pictures and news coverage that illustrate lawyers’ commitment to their clients and the community, as well as a recent economic study that outlines the reality of what the legal profession contributes in economic activity and jobs for South Carolinians.

Members of the South Carolina Bar fall all along the political spectrum, and as such, the Bar does not pledge support for political candidates. Irrespective of party lines, candidates and those supporting them should present their own credentials and experience and allow intelligent voters to make informed decisions as to how to vote based on those facts. Vigorous debate is what democracy is all about, but those involved should stick to an honest discussion about the facts. Misleading political rhetoric clouds the opportunity for honest debate on substantive issues important to our state.

When you encounter smear tactics against lawyers in your community, I encourage you to help the Bar fight back. Lawyers promote good government and economic growth. They represent the individual, the small business, the larger entities and the government. Some of those individuals are the poorest in our communities, and lawyers go to court for them without charge.
Help spread the word about what you already know about our state’s lawyers, or point them to sclawyerfacts.org for just that—the facts."

 

Mr. Jernigan is a Florence attorney and president of the S.C. Association for Justice, formerly the S.C. Trial Lawyers Association.  He wrote the below article in The State newspaper about additional efforts to "reform" the civil judicial system.

"In a recent guest column (“Lawsuit reforms will promote job growth,” March 9), business leaders Cathy Novinger and Otis Rawl urged lawmakers to pass a pair of “tort reform” bills they claim will “improve the civil lawsuit climate.” They won’t.

I have great respect for Ms. Novinger and Mr. Rawl, but the only legal “climate” those two bills improve is one that serves giant corporations. The ability of ordinary citizens to seek justice would be seriously undercut.

One bill would limit punitive damages that juries could award when people are injured. The other would place an arbitrary cap on compensation for pain and suffering and shield trucking companies from being held accountable for the actions of their drivers.

These bills would, in essence, limit the legal rights of ordinary S.C. citizens. This is nothing more than an effort to protect corporations from the consequences of their reckless actions.

The arguments to support this legislation are the same old claims we always hear: If big companies can’t be sued, then they’ll have so much more money to hire people and grow the economy. But here are the facts.

First, tort cases make up less than 6 percent of the entire civil caseload. Few of these cases ever go to trial, and when they do, the plaintiff only wins about half the time. According to the U.S. Department of Justice, the average jury award is only $24,000. It’s hard to see how limits are needed.

Second, giving trucking companies free reign to put drivers with a history of speeding and wrecks on our state’s roads without consequences endangers us all.  No one should be protected by law from being held responsible for reckless behavior that injures people and endangers lives — especially not big companies.

Third, the state’s business climate is doing just fine without these unnecessary changes. Last year, export growth in our state was 85 percent higher than the national average.  Nearly every week, a new employer locates in South Carolina.  Building permits are on the rise, and recent surveys found S.C. manufacturers and business leaders are their most optimistic in years.

In fact, Site Selection magazine, Development Counsellors International and the Small Business & Entrepreneurship Council all consistently rank our business climate in the top five nationally. That’s good news.

Countless independent studies conducted by consumer groups and nonprofits have shown that economic growth is not enhanced at all by the type of “tort reforms” these bills would create. The opposite is true. There is more evidence to show that hamstringing our civil justice system is likely to slow employment growth.

Ms. Novinger and Mr. Rawl argue that these bills come “at no expense to the taxpayer,” but that claim couldn’t be further from the truth: This legislation is little more than a government bailout for corporate wrongdoers, with taxpayers picking up the tab.

By granting corporations immunity from responsibility, more individuals will be forced to seek financial help for medical bills and lost work from taxpayer-funded programs such as Medicaid and Social Security Disability.

Additionally, these so-called “tort reform” bills infringe upon our Seventh Amendment right to a jury trial in civil cases. And that comes at a tremendous cost to all S.C. citizens, including taxpayers.

The civil justice system exists so that those who are harmed by the actions of others can be compensated fairly for their loss. That right exists so wrongdoers can be punished for their actions. In a free and just society, nothing is more important.

The facts are clear: These “tort reforms” would benefit the few at the expense of the many.

If we continue to allow special interests and corporate lobbyists to use phony arguments to rig our civil justice system, the price we’ll all pay is one no free society can long survive: the loss of our constitutional rights.

Tom Schroeppel wrote the below letter to Tampa Bay Times on the Florida bill that will give corporate owners immunity for negligence that affects resident’s safety. My favorite line was "It’s like exempting an airline from lawsuits after a plane crash because the corporate leaders weren’t flying the plane."

"As the son of a nursing home resident and as a longtime advocate for nursing home residents’ rights, I’m surprised and disappointed by Florida Senate Bill 670/House Bill 569. This bill effectively shields investors in nursing homes from civil lawsuits on behalf of injured or dead nursing home residents. As your article indicates, this bill appears specially designed to punish one law firm that has successfully tracked down and extracted legitimate damages from the real and often hidden owners of neglectful nursing homes.

The bill says that if you or a loved one is injured or dies due to nursing home negligence, you can sue everyone from the nursing home license holder — which can be a shell company with no assets — down to the overworked and low-paid nursing assistant actually providing care. Just don’t think about suing the parent company, because "passive investors" are exempted from all lawsuits.

A passive investor is defined as "an individual or entity that does not participate in the decisionmaking or operations of a facility." This definition would encompass both the corporate owners of large nursing home chains and the private-equity companies that are increasingly seeing nursing homes as easy targets for acquisition, looting and disposal. It’s like exempting an airline from lawsuits after a plane crash because the corporate leaders weren’t flying the plane.

I also can’t understand how the many good nursing homes that belong to the Florida Health Care Association — the primary mover behind this bill — can back a bill that will benefit only their most venal and neglectful competitors, companies that put profits ahead of care and want to get off cheaply when they injure or kill their residents.

For the sake of all our vulnerable nursing home residents, I urge anyone who has a loved one in a nursing home or who may someday end up in a nursing home to contact his or her state legislator and urge them to kill this terrible bill. It does nothing but help bad nursing home operators avoid the legal consequences of injuring or killing their residents."

 

The Washington Post had an article on the dust up between the prosecutors for the State of South Carolina and the Honorable Justice Donald Beatty (one of the best and most honorable Justices in SC history) of the South Carolina Supreme Court.

The prevalence and condonation of prosecutorial misconduct is a serious epidemic in this Country and worse in South Carolina.

South Carolina State Supreme Court Justice Donald Beatty had the courage and audacity to address these problems at a state solicitors’ convention in Myrtle Beach, SC.  "Beatty cautioned that prosecutors in the state have been “getting away with too much for too long.” He added, “The court will no longer overlook unethical conduct, such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence. You better follow the rules or we are coming after you and will make an example. The pendulum has been swinging in the wrong direction for too long and now it’s going in the other direction. Your bar licenses will be in jeopardy. We will take your license.”

The article states: "You’d think that there’s little here with which a conscientious prosecutor could quarrel. At most, a prosecutor might argue that Beatty exaggerated the extent of misconduct in South Carolina. (I don’t know if that’s true, only that that’s a conceivable response.) But that prosecutors shouldn’t suborn perjury, shouldn’t retaliate against political opponents, shouldn’t suppress evidence, and that those who do should be disciplined — these don’t seem like controversial things to say. If most prosecutors are following the rules, you’d think they’d have little to fear, and in fact would want their rogue colleagues identified and sanctioned."

"The state’s prosecutors didn’t see it that way. Beatty singled out South Carolina’s 9th Judicial District in particular. There’s a good reason for that: He noted in his talk that two prosecutors from that district, overseen by Solicitor Scarlett Wilson, had already been suspended for misconduct and at the time of his talk, another complaint was pending. A recent complaint by the state’s association of criminal defense lawyers recently laid out a list of other complaints (PDF) against Wilson’s office. (You can read Wilson’s response here.)"

"But Wilson took personal offense at Beatty’s comments. She accused him of bias and sent a letter asking him to recuse himself from criminal cases that come out of her district. In one sense, Wilson is unquestionably correct. Beatty is biased. He’s clearly biased against prosecutors who commit misconduct. But that’s a bias you probably want in a judge, particularly one that sits on a state supreme court. It’s also a bias that isn’t nearly common enough in judges.

Now at least 13 of the 16 head prosecutors in the state’s judicial districts, along with South Carolina Attorney General Alan Wilson, are asking for Beatty’s to be recused from criminal cases. This would presumably end his career as a state supreme court justice.  Absolutely ridiculous.

 

Two investment brokers and their associates are facing charges for stealing nursing home residents’ personal information to perpetrate annuities fraud, the U.S. Securities and Exchange Commission announced. A $4.5 million settlement has been reached with some of the parties.

Brokers Michael A. Horowitz of Los Angeles and Moshe Marc Cohen of New York City created the illegal scheme. They allegedly stole identification information from nursing home residents through a fake charity, and used that information to get insurance companies to issue variable annuities. These are investment vehicles that pay out a death benefit to a beneficiary when the holder dies.

Horowitz and Cohen sold the annuities to wealthy investors with the understanding that the annuity holders would soon die and the investors would collect the death benefit. The brokers made more than $1 million in commissions. They allegedly brought in commodities trader Howard Feder, who helped them facilitate institutional investments in the fraudulent annuities through the auspices of BDL Manager LLC.

As part of an overall $4.5 million settlement, BDL agreed to pay disgorgement and a penalty totaling about $3 million. Feder agreed to pay a $130,000 penalty. Individuals who were charged with helping obtain the nursing home residents’ information also agreed to penalties.

 

The Sacramento Bee reported that Florida’s Supreme Court declared that arbitrary limits on medical and nursing negligence cases were unconstitutional.  This is a big win for the people of Florida and the 7th Amendment to the Constitution.  Florida law capped doctors’ liability for non-economic damages at $500,000 in most malpractice cases and $1 million in cases involving deaths. In a 5-2 decision, the court said the caps in such cases violate the equal protection guarantee in the state’s constitution. Florida becomes at least the seventh state to declare medical malpractice award limits unconstitutional.

"The cap on non-economic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members," the court wrote.   The case involved a lawsuit filed against the federal government by the parents of Michelle McCall, who died after giving birth in 2006 while being treated by U.S. Air Force doctors at Fort Walton Beach Medical Center. A jury awarded her parents and son $2 million, but a federal court lowered the award to $1 million, citing the state law.

Non-economic damages are for pain and suffering, mental anguish, and other things. Economic awards, which have no cap, refer to lost wages or medical costs.  Of course, children and elderly victims of malpractice have little lost wages.

 

 

Remember Judge Mike Maggio?  We wrote about him last July after he negated a unanimous jury verdict.  He declared that the jury’s judgment of $5.2 million was excessive, and arbitrarily reduced it to $1 million.  Well, he is back in the news for racist, sexist, and bigoted comments on blogs.

For example, Judge Maggio wrote that if you have gay sex, then it is just a “small step” to sex with a dog and “Sluts are just whores in training.”  Women shouldn’t make an “emotional decision to divorce because the husband stepped out” if he was a “good provider.”  Those are just some of the writings uncovered after the Arkansas blog Blue Hog Report discovered that an pseudonymous commenter on a message board for Louisiana State University fans was sitting Arkansas state Judge Mike Maggio. Judge Maggio, who posted under the username “geauxjudge” offered questionable views on race, sexuality, women and many other issues.

Maggio’s most disturbing statement, however, may be a description of something called “Rodeo sex,” which appears to be when man tries to physically force a woman to continue having sex with him after he has said something to her that causes her to withdraw her consent.

How can he still be a judge after the people of Arkansas discover his views on race, sex, and homosexuality?

Mcknight’s had an article on a New Jersey state law to protect nursing home residents.  This law cannot be invoked to bring a suit against an assisted living provider, a federal judg ruled, reversing his earlier decision.

The plaintiff, Helena Andreyko, alleged that her mother, who had dementia, had been beaten and neglected by the staff at a Sunrise Senior Living assisted living facility in New Jersey. Sunrise — which was acquired by Health Care REIT in 2012 — argued that the charges should be dismissed because the state’s Nursing Home Responsibilities & Rights of Residents Act does not apply to assisted living communities.

A U.S. District Court initially ruled against Sunrise, but reversed itself after weighing the defendant’s motion for reconsideration. The law does define “nursing home” broadly enough to include assisted living facilities, but it also distinguishes between the two settings, according to the Jan. 24 ruling.

The law specifically limits the use of arbitration agreements in nursing homes and assisted living facilities, but in other matters, the law does not explicitly extend protections to assisted living, Senior District Judge Dickinson R. Debevoise noted. Furthermore, the “legislative scheme” of the state treats the settings differently with respect to “licensing, standards and regulations,” he wrote.

These factors suggest a “distinction” between the two settings, meaning the legislature would need to “expressly” create a resident rights law for assisted living, separate from the existing nursing home law, Debevoise ruled.

The judge seemed to advocate for such a law in his ruling.

“Considering the vulnerability of this population, there is little reason to distinguish these groups by enabling only one with an enforcement mechanism to realize its rights,” he wrote.

In 2012 U.S. health care spending increased 3.7 percent to reach $2.8 trillion, or $8,915 per person, the fourth consecutive year of slow growth. The share of the economy devoted to health spending decreased from 17.3 percent in 2011 to 17.2 percent in 2012, as the Gross Domestic Product increased nearly one percentage point faster than health care spending at 4.6 percent.

Medicare cuts to skilled nursing facilities played a significant part in keeping healthcare spending low in 2012. Growth in nursing home spending plunged from 4.3% in 2011 to 1.6% in 2012, CMS found. This was in large part because the agency enacted a one-time Medicare rate reduction of 11.1%.  Medicaid spending also continued to grow at what CMS termed “a historically low rate.” A healthier economy slowed enrollment and state cost control efforts played a role as well.

While hospital, physician and clinical services spending increased in 2012, slow growth in nursing home, prescription drug, private health insurance and Medicare expenditures, according to the annual report from the CMS Office of the Actuary.

“For the second straight year, we have seen overall healthcare costs grow slower than the economy as a whole. This is good news,” she said. “We will continue to work with tools given to us by the Affordable Care Act that will both help us control costs for taxpayers and consumers while increasing the quality of care.”