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How Sext Messaging Can Get You Into Big Trouble

Friday, December 18, 2009

The term "Sex Messaging" probably didn't mean anything to you a year ago and you definitely wouldn't of heard about it 5 years ago. Sext messaging is when a person takes a nude or semi nude photo of themselves and then forwards it to another person. It is usually a provocative picture that is past from a girlfriend to a boyfriend or vice versa. Advancements in camera phones have made this an everyday occurrence. This practice is leading to some very dangerous outcomes.

Imagine a girl who sends a "sexy" photo of herself to her boyfriend. She may think it is playful and fun and so may he. But what happens if their relationship goes south. The same thing that has happened to thousands of these pictures already. They end up on the internet for everyone to see. This could like to embarrassment, ridicule or even an arrest. That's right. Some of this activity is 100% illegal and is even characterized as child porn. If a 16 year old girl sends a naked picture of herself to anyone over the age of 18, that person could be classified as having child porn in their possession. Especially if that person chooses to forward that picture to other people.

Even if you think you are taking an innocent picture, it could be perceived in a very bad way. Anything that you send electronically could one day end up on the net for a future spouse or employer to see. Don't think that a company won't try to look you up on Facebook before they offer to hire you. You need to assume that any picture you send to someone else could one day end up on the internet.

Cell phones provide a tremendous amount of convenience but they can also get us into trouble. Sext messaging can lead to big trouble just as distracted driving causes accidents every day. Enjoy your cell phone but use it wisely or it could be the cause of a lot of physical or emotional pain.

California Tort Reform - Why MICRA May be Bad for Patients

Tuesday, December 08, 2009

The following letter was written to the San Francisco Chronicle outlining the details of how the Medical Injury Compensation Reform Act came to be.

To Whom it May Concern,

I read with great interest you front page article in the Chronicle
this morning, concerning the MICRA (the Medical Injury Compensation
Reform Act) damage caps, its history and the impact on the continuing
and very numerous victims of medical misadventures and mistakes in this
country. First of all, Bless You for finding this area and for writing
about it, at least. We have seen similar articles from time to time
over the years since the Sacramento Sleight-of-Hand that produced this
odious legislation in the first place, each one sounding as though, oh
my, we just found out about this law, and how could it have been on the
books for so long, etc, without public attention and outcry? See, for
instance, a series in the LA Times, about six months ago. To your
credit, you at least did not start from that premise, and your text
confirms that you did some homework.

In the hope that there may be some follow on for this, may I just
offer a few further comments about MICRA, how it came about, and what
are the practical realities of its impact, some 34 years after passage.
I have been an active practioner and trial lawyer in California for many
years, and am very familiar with medical negligence cases and the
problems families have in finding counsel for assistance in these
matters, as you note. I was also present in Sacramento, as part of a
consumer and patient advocates legal group trying to fend off what
became MICRA, when all this boiled over in 1975. And I remember exactly
what happened. Unfortunately, no one now in the Legislature was there
at the time, nor has any grasp on how this all came about.

The medical negligence insurance market in California in the 70's
was dominated by two large private insurance groups, both no longer with
us. Customarily, these insurers would do blanket deals with local
medical associations, or even the CMA itself, to write coverage for all
the practioners, for attractive rates, much like any group plan. With
this, however, came no screening of the skills, training or track
record of the insurdeds, and so invariably there were some serious
medical errors committed, and more often than they would have wished,
which had to be picked up by the insurers. And, of course it cost them;
destruction of someone's life through a serious medical bungle, such as
taking out the wrong organ, giving the wrong medicine, allowing a
patient to "code" (going into cardiac arrest or similar) while
undergoing anesthesia, having someone wake up paralyzed after what was
supposed to be a routine procedure, etc, causes serious damage.

Consequently, it became clear that these insurers had gotten
themselves into a profit squeeze situation, but on the other hand, they
did not want to let go of all that captive business and all that premium
income. So they were looking for ways to change the situation, when one
of the regularly reoccurring stock and investment market downturns came
along, dropping the value of the insurers portfolios, by estimates of as
much as 25 percent to maybe one-third. Since insurers were regulated as
to how much coverage they could extend by their reserves, and those
reserves, in turn depended for their value on the worth of the
investment holdings of the insurer, this downturn meant that either a
lot of business had to be dumped, or premiums severely increased.

Viola: instant solution: blame everything on "runaway jury
verdicts;" "frivolous lawsuits;" greedy and faking patients, and most of
all on the unscrupulous lawyers, whose dark efforts drove all of these
things. People generally did not like lawyers anyway, but did like and
respect doctors, and, of course knew really nothing about the insurance
market for medical risks nor how it worked. So this was a natural. The
first thing that turned up, of course, was the media drive; reports in
papers, including yours, letters to editor, and what have you (no
internet nor Fox news in those days) about the "runaway verdicts; "
crazy juries awarding millions in no merit cases, due only to the
mesmerizing of them by Swengali-like trial lawyers; junk lawsuits: that
all one had to do was file one against a medical provider, and it would
be immediately paid off with large settlement, no questions asked. And
of course, the recurring message: all this is relentlessly driving up
the costs of medical insurance premiums, but in turn the costs of care
itself. As I remember, this the area where we first saw the term
"skyrocketing" applies to something other than love songs or the 4th of

Next came the very subtle "Office Closing" forms. In almost
every medical waiting room in California, there started to turn up forms
for the attention of the patients, as they checked in. The form,
announced in bold letters, that the practioner or clinic in question was
very sorry, they loved serving their patients, etc, but because solely
of the onslaught and impact (or choose some other appropriate term) of
the lawsuits and verdicts, and the consequent, directly relegated
continuous rise of our medical negligence coverage premiums, we cannot
stay in business anymore, and will be closing our office on __________.
Yes, blank date; the doc or clinic was to fill this in along with their
name. Even with no date filled in the message was ominous, of course,
and repeated. And it had impact.

The last dance in the drama came in Sacramento in the spring of
'75, when all this had reached fever pitch, and nine out of any ten
people you stopped on the street would tell you that the
docs-are-gonna-leave-the-state scare was real, and it for sure was all
the fault of those lawyers and those lawsuits. No one had any clue
about the loss of the insurers to write this business at any reasonable
rate, because that issue was never touched, either by Sacramento or the
media, but a bit more on that later.

On the beautiful grounds of the State Capitol building in
Sacramento, there assembled a virtual Army of maybe anguised patients
and medical families; some practitioners, wives, children, dogs, all
banishing posters, banners, and what have you, with the same recurring
message: stop the junk lawsuits; stop the skyrocketing insurance
premiums; or we are closing offices and leaving the state.... Sort of
like a preview 34 years ago of the recent Town Hall meetings. It is
also interesting to note that our former president, George W. Bush, used
exactly the same arguments in some of his early State of the Union
Addresses, touting for a National Medical Cap on Damages bills, and
other "reforms," using medical folks in the balcony as examples. (but no
signs this time.)

On the very day that the MICRA keel was laid and the victim
patients yet to come were hung out to dry, there was another such
demonstration at the Capitol. Inside, at the negotiating sessions, the
medical lobby was pressing the then Speaker of the Assembly for
immediate legislative "Relief and Reform" hammering again the arguments
concerning the "direct relationship" between escalating verdicts and
settlements and premiums, the rise of which were responsible for all
this turmoil, the docs leaving the state, and the consequent collapse of
the medical care delivery system in California.

But there was one link missing, this issue, however drowned
out in the hubbub. Although the medical reform lobbyists were pressed
hard for this data; there was never any proof, any study, of any kind
that every found a connection between what was going on in the court
rooms and the rise in premiums. You note in your article today
essentially the same thing. Even the Rand Corporation has not been able
to find linkage, even after all this time. We on the side of the
consumers, and we thought the public, although for sure they did not see
it that way at the time, challenged these assertions again and again,
and thought finally, we had one at least one round in the battle to
stave off a special interest bill that would have immunized large
medical errors and error committers from legal accountability and
review. We were assured by the Speaker while in Room A, if we may call
it that, that there would be no rush to judgment; no bill passed simply
because of media pressure, lobbyists and a mob on the Capitol grounds;
that no bill would emerge from the Legislature until there were proper
and in depth hearings on the issue of the connection, if any between
lawsuits and premiums, or if indeed it was all driven by the diminution
of the investment portfolios of the insurers.

But, as sometimes, or oftimes happens in politics, it turned out
that the Speaker, went out of Room A and into Room B, where were
ensconced the "reform" lobbyists, and gave them what they wanted, and
then on to Room C, to ensure that the governor would call a special
session to deal with this unprecedented
All-our-medical-people-are-leaving-the-state crisis, and sign the bill.
And that is exactly what happened, in a very short space of time. MICRA
was rammed through the Legislature to avert a crisis that was entirely
the making of the folks who would benefit thereby. Not the medical
practitioners nor the clinics and hospitals, but the insurers.

The legislation was challenged in the courts by a coalition of
consumer advocate groups, trial lawyers, and others who saw what was
really going on and foresaw the impact of what MICRA would do to the
future victims of medical misadventures, especially in the cases where
the direct economic losses, as opposed to the so-called non economic,
like permanent disfigurement or pain, but after a long court battle, the
Supreme Court of California upheld the essential parts of MICRA, almost
always on 4-3 votes. Some of the dissenters, who tried to point out the
inequities in the legislation, and the fact that among other things, it
would make it near impossible for victims in low economic damage cases
to obtain competent counsel, later found themselves voted out off the
bench for supposedly being "soft on crime," but that is a different

Now, over some 34 years later, here is the reality how MICRA impacts
across the board, and you have the essence part of it in your story
concerning the Ryan Volkmuth case. First, the Cap. As you note, the
legislature put zero in the original bill to allow this to adjust to
time or inflation, apparently assuming that somehow future legislatures
or the courts would deal with this. As a result, the cap, expressed in
fixed dollars, is now worth in purchasing power, according to our
economists who last ran these numbers, about sixty thousand, and
dropping. In every case that we undertook after MICRA, we always made a
motion to the court at outset to apply a CPI or other inflation index to
the court, so as to allow an award to at least allow the victim the same
equivalent recovery he or she would have had in 1975. Uniformly, the
courts have turned these motions down, ruling that this is a matter for
the legislature along to fix.

The second big vice in the Cap is not well known nor understood, unless
you have been actually involved in one of these cases. The medical
defense lawyers, who are among the best, and wellpaid to do it, have
convinced the courts that the fact of the Cap cannot be told or argued
to the jury, so when it makes its award, it has no idea that even if it
finds and awards, say a million dollars for a serious and egregious
mishap, the victim will never see it. It will be reduced by the court
later in a quiet motion made by the defense.

Next, the fees that can be earned by the lawyer for the medical error
victim on any sort of percentage basis are likewise severely limited, to
the point where many, if not the vast majority of those qualified to do
this kind of work simply cannot afford to take these cases. Not only
are the fees limited, but all expenses - and they can be extremely
substantial in a complicated medical negligence case - must be first
deducted from any recovery before any fee calculation is made. For
instance, assuming a medical negligence case recovery of even one
million dollars (not possible of course in a "nonecomic damage" only
case), where it has cost, say, $200,000 in expense, which in almost all
cases has to be advanced by the attorney handling the case, the mandated
fee schedule will allow the lawyer, who may have had all that expense
money in the case and worked on it for three or four years, a fee of
less than $200,000. Worked out over the years and hours, that is not
very much, and of course only comes when the case ends up successfully.
In any case that is lost or does not work out for whatever reason, there
is no fee, and that has to factored in to any assessment as to whether
any lawyer can handle any given case.

On the other side, however, there is no limit whatsoever to what the
defense may spend. Large hourly and trial time fees are routine and
paid regularly. I think it was Justice Rose Bird, who commented on this
phase of MICRA shortcomings in particular, pointing out that since
medical negligence cases invariably had to be handled for the victim by
a lawyer on a contingent or percentage fee, this discrepancy virtually
assured that the defense could hire and pay the best but that the victim
was precluded from hiring counsel at the going or "market" rate, as she
described it, even if he or she was happy to pay it. In fact there is a
case on the books in California, where the lawyer involved, a well known
and very competent practioner in LA, was hired by medical malpractice
victims, who recited in the retainer that they knew about MICRA and the
fee limits, but wanted the best and were willing to pay therefore, and
thus were contracting for special fees over and above the MICRA limits.
Appellate court disallowed: victims, you may want the best and be
willing to pay for it, but you cannot have where medical defendants are

There are some other ins and outs of MICRA that further inhibit the
ability of a medical negligence victim, such as forcing the victim to
take "periodic payments," sort of like an annuity at a low interest
rate, instead of receiving the full cash benefit of any award; offsets
for other insurance and medical benefits (the medical defense industry
at one point tried to get future social security benefits to be paid as
an offset, but they were not able to do that b/c SS is a federal issue,

So, that brings us to a case like Ryan Volkmuth. This is a very typical
and tragic scenario; we see it time and time again with youngsters,
babies, older folks who are no longer supporting someone, disfigurement
cases where past bills are paid by medical coverage and there is little,
if anything that can be done in the future, and similar. In all cases
where there will be no significant componetnt of "economic damage,"
keeping in mind that most of the medical costs that are incurred to date
are usually covered by some insurance or plan, and thus go to the credit
of the medical defendant, so there is no "damage" to the victim there as
well. Since the Cap is an unbeakage $250,000, that is the maximum the
insurers can be called upon to pay, no matter how grievous the injury or
loss, or the egregiousness of the medical error.

Well, you might say, at least the victim should be able to recover that
without a lot of trouble in a clear case, right? Wrong. Since the test
of "medical negligence," under Cal law is that you must establish that
the procedure or treatment violated the acceptable Standard of Care, and
that can only be established and proved by expert medical testimony, you
have no case unless and until you provide the other side with a credible
expert or expert report pinning this down. And that is just the start.
They will counter with one or a number of experts who disputes what your
guy says, and who will have to be deposed. Many times, a lawyer
handling such a case has to screen though several potential medicinal
experts before finding one who can help, and each time this goes on ,
there has to be a retainer fee paid, records obtained, fees paid for the
review, and so on. As a practical matter the defense knows this, and
calculates, that on the average, even in a clear cut Cap case, the
lawyer for the plaintiff will have to spend somewhere between 50 and
70,000 dollars just to put the case in a posture to make the defense
worry. They also know that if they hold tight, it will cost the
plaintiffs' side at least that much or more if the case has to be tried,
and whatever all that comes to, it comes out of the $250,000 max Cap.

The end result is, that in many cases as Ryan's seems to be - a huge
tragedy for the family, and maybe a clear case of medical error - you
can expect the defense to never offer any more than about half to 60% of
the Cap, because it knows that the plaintiff or bereft family cannot do
any better even if they go to court and win.

It is a rotten and unfair system, and despite all the hullabaloo from
Bush and others, including some of our Republican governors who have
vowed public ally to veto any attempted legislative reform of MICRA,
there is a want of any solid empirical or other evidence that medical
insurance premiums are driven by court results or settlements, as
opposed to many other factors, or that a Draconian law such as MICRA
actually does reduce health care costs. There maybe some premium
reduction, because the insurers payout of course has fallen, but where
is the evidence that this has translated to any meaningful reduction in
health care costs? The last time we looked, they were still escalating
by about three times p.a. than other items in the index?

One last footnote. From time to time, hard work will start to bring
some of the legislators who have come along since MICRA around to
revisiting the issue, especially the Cap on damages and limits on
attorneys fees. Several bills. Limited only to making some
modifications on the Cap, such as letting it rise with the CPI, or
inflation, or an arbitrary percentage per year, or whatever, as opposed
to a full blown overhaul, have made some progress thought committees
from time to time. This happened a few years ago, when with Grey Davis
then in office, it looked as though if such a bill could get through the
legislature, he most probably would have signed it, even though he would
not take a public position in favor. This got blown out of the water,
however, one morning by Banner Headlines in the LA Times, which had
gotten wind of the bill, and apparently was induced to oppose it "Docs
can be Sued for Millions....", and so on. Bad start; many legislators
in the Southland; heard from constituents; end of effort. For now.

Thanx for taking the time to read some or all of this. I think it is
important history and background that has faded from folks' memories.
The balance between trying to contain health care costs and protecting
patients from unnecessary medical errors is a tricky and complex one.
We shall see what happens at the national level. One thing, tho, for
sure to keep in mind: any time any legislative product has the word
"Reform" in its title, you know someone without a big lobby in the
legislative halls is going to get screwed in some way.


Gerald C. Sterns

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