Victims of sex trafficking are left severely traumatized—physically and emotionally—while the pimp and the john walk away, generally without a second look back. Even in the criminal justice realm, the sex trafficking victim is more likely to be charged than the pimp or the john. That is beginning to change as victims find their voice in civil courts.

The lawsuit was filed under the federal Trafficking Victims Protection Act. Basically, that law makes compelling people into commercial sex acts a crime or even allowing a minor to engage in commercial sex acts a crime. It also gives the victims of the crime a right to sue the criminals for the harms they suffer.

This kind of lawsuit, against the johns and the pimps, is the next logical step in a growing movement to understand and combat “domestic sex trafficking”—where children are used in commercial sex acts, or adults are coerced into the sex trade. Commercial sex acts include everything from “prostitution” to stripping to pornography (or often all three combined). Pimps make huge amounts of money through their control of these women and girls and selling them to willing johns. (We use the phrase women and girls because most are female, however, there are many men and boys in the same situation and subject to the same force, fraud, or coercion.) Pimps are constantly on the prowl for “fresh meat” to add to their “stable,” and the younger the better. The methods pimps use to control the victims are as varied and nuanced as the victims themselves. Sometimes it’s straight violence, sometimes the threat of violence against family, sometimes forcible addiction to drugs, sometimes through psychological manipulation.

Pimps are very skilled at forcing their victims into the right look. More johns want to buy a girl or woman who is smiling and flirtatious than one who is sobbing, so pimps find ways to force their victims to present the right image.

The johns, who fuel the demand and make sex trafficking profitable, ignore the background where they find the victims. Studies show that johns justify their use and abuse of women and girls by telling themselves that the victim enjoys “the attention” and wants to do whatever it is the john demanded. The johns are wrong.

These women are pearls without price. They are stronger than most people can even imagine, surviving in a situation beyond nightmares. Each one is a gem, precious and unique, who should be respected and cherished.

This kind of lawsuit is a step in the right direction for the minors in the sex trade and those who were forced, defrauded, or coerced into the sex trade. It seeks justice and accountability from those who cause uncountable harms. People escaping sex trafficking should speak with an attorney regarding their rights and whether a civil claim is an appropriate choice for him or her.

Photo credit: © Dignity | Stock Free Images, Dreamstime Stock Photos

Learn more about this exciting new development:

Read more about it here.

“In 2010, the federal government estimated that faulty medical care contributed to the death of about 15,000 Medicare patients per month. By these measures, faulty hospital care is one of the leading causes of death, behind heart disease and cancer. Why haven’t hospitals made more progress on patient safety? The reasons are multiple and complex, but they boil down to the fact that hospitals are hierarchical organizations resistant to change, they haven’t done enough to create environments in which patient safety is a priority, and they’ve been reluctant to share patient-safety data with the public. Even getting full compliance on basic safety standards, such as washing hands, has proved elusive because hospitals are busy, high-stress places full of distractions.”

Healthcare transformation should start with standards and teamwork that reduce errors—not removing accountability for harm done to patients. This is not about a conflict between doctors and patients. It’s about doing what is right for the patient.

Photo Credit: Alvimann, http://morguefile.com/archive/display/642981.

A CATO Institute study shows that caps do not lower doctor’s insurance rates or prevent defensive medicine

The CATO Institute, a respected conservative/libertarian organization, published an analysis of an unbiased study that showed that limits on malpractice caps do not reduce either defensive medicine practices or the cost of malpractice insurance, but such caps do have a negative impact on patient safety because such caps remove an accountability mechanism.

The argument about “defensive medicine” is also dealt with by existing law, which prohibits such abuse of the medical system. A provider who orders testing with no therapeutic value commits insurance fraud, violates Oregon law, and ignores the first rule of medical ethics to do no harm. Also, doctors who order unnecessary tests put the patient at risk by subjecting the patient to unnecessary medical procedures.

Caps also failed to lower doctors’ insurance rates in other states that tried adding caps. The caps produced no noticeable effects on doctor liability insurance premiums—meaning that doctors continued to pay the same amount in premiums for less insurance coverage. The real beneficiaries of a cap like the one proposed in Oregon are not the doctors, but the insurance companies who can report higher profits and less risk to their bottom lines.

Real Solutions to a Real Problem

More than 98,000 Americans die every year from preventable medical errors. Imagine a 747 jet liner crashing every day, all year long, killing all on board—that’s about the numerical equivalent to those killed in the health system through errors. Because of that epidemic number, the main focus of healthcare transformation must be to improve patient safety, rather than to minimize accountability for substandard care.

Fortunately, some recent innovations have been able to achieve both aims: patient safety first, then cost reduction. For example, Legacy Emanuel recently participated in a national study where it implemented simple procedures and check lists for all hospital staff to follow. These check lists covered really simple things, like:

• wash your hands between each patient,
• make certain all medical equipment is accounted for before finishing a surgery, and
• confirm that the chart in your hand matches the patient you are treating.

According to the Oregonian’s report on the results, using such a checklist saved Legacy over $13 million in one year, cut down on medical errors, and significantly lowered patient infection and injury rates. Other hospitals should follow this simple standard.

Another example of innovation in Oregon is the Oregon Health Plan’s recent use of outreach workers to help patients get the care they need early to prevent an emergency and help them understand how to navigate the system. These workers spend time with heavy users of the emergency medical system to understand their limitations and the needs they have, which, if met, would reduce their need for emergency services. The program is only five months old at this point, but it is working to get the patients the care they need and to reduce costs and burdens on the system.

OHSU began a program called 5G in 2010 that allowed nurses more control over their work space and to question procedures. That program successfully reduced falls in the unit, cut waste, and improved care. “These small efficiencies will save 5G nurses more than 250 hours in the coming year—and 200 miles in steps not taken.” And that was just one hospital. The program also responds to one of the biggest causes of a medication error: interruption. Under the program, nurses have “sacred space” where colleagues don’t interrupt them.

A legislative proposal implementing such proven methods of containing costs and improving patient safety would keep the focus in the right place: patient care and safety.

Justice for all…who have private health insurance

The problem with the proposed law is that it essentially creates a two-tier justice system.  The first tier is reserved for individuals with private insurance. The second tier is for patients on the Oregon Health Plan (OHP). The new legislation would strip OHP patients of a basic constitutional right to trial by jury and instead and would limit or cap how much OHP patients can sue for when they are injured due to negligent, substandard medical care. Keep in mind that in order to claim any damages at all, the patient must first prove to a jury that he or she received substandard, negligent medical care.

Thus, if you have the good fortune to have your own insurance, you would be able to hold a negligent care provider accountable for substandard or negligent care—just like holding a child who throws a baseball through a window accountable for the damage done to the window. That accountability is a basic right, guaranteed by the Constitution and the inviolate nature of a person’s sovereignty over their own body. However, if you are on OHP, the two-tier system of justice would limit your access to the same justice, regardless of how terrible the negligence, no matter how high your future medical costs, no matter your life situation. So much for equality before the law.

On a similar note, we must question whether Oregon really wants to allow the government to require a citizen to give up a constitutional right in order to receive state services. Remember, the constitution limits government, not the citizens’ rights.

Conclusion

Real reform of the problems plaguing our health system begin with placing the patient over the system, not protecting the system and insurance companies before the patient.

Photo Credit: http://morguefile.com/archive/display/42863

The Cato Institute, a widely respected libertarian think tank, reported in October 2011 that their study on medical malpractice caps showed that such limits on damages would endanger patients and wouldn’t reduce health care costs. The report notes that “In particular, caps on damages would reduce physicians’ and carriers’ incentives to keep track of and reduce practice risk.” The report also found that medical malpractice damage awards do match the injuries the victims suffered—there is not a “runaway jury” problem in America.

This growing grassroots voice in defense of the civil jury system is entirely consistent with the positions of both parties. As Judson Phillips so eloquently stated:

“The free market is a wonderful system. It produces amazing efficiencies and amazing wealth. The free market system has delivered more prosperity to more people than any other system. There is another beauty to the free market system that many people do not think about. The free market system punishes bad behavior. If I open a business and decide to sell something that is a really bad product, people do not come to my business. I have the incentive to produce a really good product because that way people will want to come to my business.

The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior.

If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me.

The right to a jury trial has a long and storied history in America and even further back in Britain.

Much as the Federal Government is overstepping its bounds by ordering Americans to buy health insurance, the government is also overstepping its bounds by telling citizens and states how much they can award in law suits and also telling lawyers how much they can be paid. (sic)

The free market is an amazing thing. It needs almost no intervention to achieve the right result, and the civil jury trial is an important part of the free market.

Take a moment to tell your Senators and Congressmen we do not need the federal government telling states what to do and trampling on another one of our constitutional rights.”

The right to a jury trial is an inherent right, guaranteed by the federal Constitution and the Oregon Constitution. Without this right to a peaceful, impartial dispute resolution process, our society would quickly degenerate into a “might makes right” farce.

In this time of budget crisis, it is important to note that when someone is harmed by another, somebody must bear the cost of that injury. There are really three possibilities: the injured person, the person who hurt her, or society as a whole. Under our current system, the person who harms another must bear the cost of their negligence (much like when a child throws a ball through a window, she must pay to fix the window). The tort reform movement seeks to displace that responsibility and place it on someone else—either the injured person or society as a whole, through either government programs, charities, or even through the simple loss of that person’s productivity and contribution to society. Simply stated by the Cato Institute, “caps shift the costs of malpractice injuries from negligent providers to their victims.”

The argument to minimize damages for pain and suffering at its core rejects the premise that human life is precious and special. We’ve all heard the phrase “life’s not the breaths you take, but the moments that take your breath away.” We probably also have all felt relief on a Friday afternoon when the clock hit 5 and we could go home to a weekend of freedom. Most of us value our time on the weekend, our time to relax and take care of our personal lives, much more than we treasure our time at work (no matter how much we love our job). That’s why wage laws require employers to pay time and a half for overtime—those outside hours are worth more to everyone. Why then would the loss of that enjoyment, that freedom to pain be worth less than lost wages or medical bills? Our lives, our freedom from interference by the government or people around us, are worth so much! Much more than lost wages or money lost to medical bills. It is the damage to the person that is the worst harm—taking away her freedom to choose her activities, to live her life to the fullest, to subject her to completely unnecessary pain.

As a parting thought, it’s important to note that civil jury cases are almost always defended by insurance companies. Plaintiffs are not allowed to tell the jury that and the insurance company can hide behind the insured, but there is almost always an insurance company that pays the bill at the end (except punitive damages—the defendant almost always pays those personally). That’s why insurance companies spend so much money advocating for tort reform—they value their bottom line more than the lives of individuals like you and me.

Photo Credit:  http://www.everystockphoto.com/photo.php?imageId=964.

License Information: http://creativecommons.org/licenses/by/2.0/.

That attorney took over Sam’s case and encouraged him to follow the advice of his doctors regarding his medical care. When the year of PIP medical benefits ran out, Sam still needed medical care—his back wasn’t better yet. Because he couldn’t afford to continue paying for treatment, he asked his lawyer to pursue settlement of the case. But the bad driver’s insurance company didn’t want to settle. It offered only a small fraction of the probable value of the case. This forced the attorney to file a lawsuit to get Sam fair compensation. Now Sam has to take time from his life to attend depositions, mediations, a medical exam by a doctor paid by the bad driver’s insurance company, and comply with discovery requests. A trial date is set, but it gets reset because an older case on the court’s docket has priority. By the time the second trial date approaches, it’s been 18 months since the lawsuit was filed.

This is a common story that repeats all over Oregon day after day. It takes a long time to get into court right now. Why does it take so long? Because court budgets, in Oregon and around the country, are being slashed.

Given the economic crisis, why should the average person care about court budgets? The simple answer is that the courts are a co-equal branch of government and to underfund them is to cripple one of the checks against government abuse. And it would be unconstitutional. The more complex answer is even more important.

In a typical injury case, the injured party usually suffers through a lot of pain, inconvenience, and frustration. Often there is no way to pay for medical care after the PIP benefits expire or are exhausted, which means the person must stop getting medical care, or the doctor must continue to treat hoping to eventually be paid when the case is resolved. This is difficult for everyone involved (except the bad driver’s insurance company who isn’t paying anything).

If the insurance company refuses to make a reasonable settlement offer, the injured person’s only recourse is to file a lawsuit and go to court. When it takes 18 months to get to trial, the injured person may have missed a lot of medical treatment in the most important time frame. Importantly though, for over a year the person has had to deal with the frustration of a lawsuit they didn’t want to bring, but had to because the insurance company refused to make a reasonable offer. Insurance companies can force innocent victims into court in an effort to wear them down rather than pay fairly. Because the court system is underfunded, things happen more slowly, giving more weight to this strategic defense tactic. (Even worse, now the insurance company can argue that Sam is greedy for claiming that he needs future medical treatment when he hasn’t treated in the last 18 months. But the real reason is that medical treatment is expensive and Sam doesn’t have health insurance, but he is often not allowed to this to a jury. Just as Sam is not allowed to tell you he’s really suing an insurance company, not the bad driver.)

There’s a reason that a “speedy trial” is mentioned in the US Constitution (6^th Amendment). The phrase “justice delayed is justice denied” rings true to so many. The courts are an essential part of our justice system, both civil and criminal. Taxpayers have a right to expect that their courts will provide timely help to achieve protection and justice. Help your legislators know that funding the courts is essential to the functioning of a just society.

In a civil case, the injured person claims “damages.” In this context damages means the amount of money it will take to make the person whole—to return the injured person to where she would have been if nothing had happened. These are “compensatory damages” because they compensate for what was lost. The money replaces what was taken away.

Such damages include everything covered by a receipt (such as medical bills, special equipment, lost wages, or help around the home) as well as intangible losses such as pain and suffering and loss of activities.

All such damages just make up for the harm that was done, just like paying for a window broken by a baseball. The players probably didn’t mean to break the window, but in justice still must pay to fix it regardless.

Purpose

Punitive damages are different. Punitive damages punish someone for their actions in order to deter similar actions in the future. Compensatory damages depend on how badly the injured person was harmed. Punitive damages depend on how bad the actions of the wrongdoer were.

To claim punitive damages in Oregon, proof must be shown of malice or recklessness. This essentially means that to claim punitive damages there must be proof that the defendant meant to hurt someone or knew they were going to hurt someone and did it anyway.

Process

To claim punitive damages in Oregon, the person must file a lawsuit and then petition the court for permission to add a claim for punitive damages. This means that a judge will review the facts available, including facts provided by an attorney for the wrongdoer. The judge will then decide whether the claim for punitive damages has proof to support it before punitive damages can be included in the claim.

Under Oregon law, you cannot claim punitive damages without first getting court permission. Once you’ve passed that hurdle, you still have to prove that the defendant either meant to hurt someone or knew they would hurt someone and did it anyway. The standard of proof is different too. Proving punitive damages requires “clear and convincing” evidence rather than a “preponderance” of the evidence required for compensatory damages (preponderance means more than 50% likely or “more likely than not”).

After proving and convincing a jury to award punitive damages, Oregon law directs that 60% of the money goes to the state for the Crime Victims’ Assistance program (ORS 31.735). The remaining 40% goes to the victim. This division awards something to the victim who suffered harm and who brought the legal action, but the majority of punitive damages goes generally to a wide class of victims of crime.

Closing Thoughts

Punitive damages are a way to punish a person or a company that either meant to hurt someone or knew they would hurt someone and did it anyway. That kind of behavior deserves punishment on top of compensating the injured person for what she has gone through.

In late May 2011, the BBC announced that during an undercover investigation it videotaped repeated abuse of disabled people under the care of a residential hospital.

A family on the east coast recently used a nanny-cam to record abuse of their mother after the facility ignored their complaints, blaming the woman’s dementia for her protests of pain at the hands of her caregivers.

In Oregon, abuse of elderly people in nursing homes is far from uncommon. While hundreds of cases are reported to county Adult and Protective Services and the state DHS program, only a fraction of these result in fines or other punishment for the facility. In fact, Oregon DHS reported that it received over 20,000 calls reporting elder abuse in 2010 alone.

For adult foster homes and assisted living facilities the minimum penalties increased to $2,500 for failing to protect a resident from sexual abuse, and can rise to $15,000 for a 90-day period. In the past year DHS has not fined any facility more than the minimum, or $2,500, for sexual abuse. Nonsexual abuse fines in nursing homes range from $100 to $300 for “minor abuse,” $300 to $500 for moderate abuse, and $500 to $1,000 for serious abuse or abuse that results in death.

For the kind of abuse that is frequently uncovered, these fines are ridiculously low (when they are imposed at all). This is why it is the jury system is so important—without it, the corporate misconduct that tolerates and ignores the dehumanizing treatment of our respected and loved family members will go on unchecked. Facilities look at DHS fines as a “cost of doing business” and these large corporations with large balance sheets shrug them off.  By bringing wrongdoers to account and forcing companies to pay the real cost of their misconduct, juries make places like nursing homes and assisted living facilities safer for everyone and bring some justice to those who have been harmed by the negligence of others.

If you or a loved one has been abused in an assisted living facility, a nursing home, or other similar facility, please contact us. We can tell you about your rights and important legal deadlines in a free consultation. You do not have to be alone.

The show first aired on HBO on June 27, 2011. The DVD will be available this fall.

Watch the trailer here:

For more information, visit hotcoffeethemovie.com and http://www.statesmanjournal.com/article/20110627/OPINION/106270333/1046.

Auto Liability Insurance Basics

Oregon law requires that everyone who drives must have car insurance which covers both the driver and passengers. This mandatory insurance includes liability coverage (click here for information about PIP, another type of coverage). This means that every driver must have insurance to pay for damages to others. This insurance will pay for the other person’s medical bills, lost wages, lost future earning ability, pain and suffering, and other losses. The minimum amount of liability insurance in Oregon is $25,000. But what happens if you are injured because another driver was careless and you suffer damages greater than $25,000?

Underinsured Motorist Coverage

In some circumstances, your own car insurance policy will cover you if the person who hit you doesn’t have enough insurance. Say for example your damages are $100,000, but the driver who hit you only had a $25,000 policy. Where will the other $75,000 come from?

“Underinsured” motorist coverage in Oregon usually has the same limit as your liability insurance coverage. This means if you bought a $25,000 policy, your underinsurance coverage is probably $25,000. In Oregon, underinsurance benefits do not “stack,” which means in this case, you are stuck with the $25,000 limit of the bad driver’s policy. However, if you bought a $50,000 policy, you have an additional $25,000 of your own insurance available to cover your damages, for total coverage of $50,000 ($25,000 from the bad driver’s insurance policy, plus an additional $25,000 from your own policy). This is still less than your damages, but better than before. If you purchased a $100,000 policy, the other side’s insurance company will pay its $25,000 limits, then your policy would pay the rest of your damages, or the next $75,000, for a total of $100,000.

Uninsured Motorist Coverage

What if the bad driver who hit you has no insurance at all? In Oregon, your auto insurance policy also includes what is called “uninsured” motorist coverage. This means if the bad driver has no insurance at all, your insurance policy will cover your damages. Here too, your recovery will be limited by the limits of your policy—if you purchased a $25,000 policy, you can only recover up to $25,000. The same is true with larger policies as well—your claim against your own insurance policy for someone else’s negligence is limited by your policy limits.

Conclusion

Oregon law requires each of these types of insurance be included in your own auto insurance coverage. If you have questions regarding insurance coverage for a significant injury from a car accident, contact us. We’ll give you a free initial consultation and explain your rights to you.