Barbara O'Brien's Open Salon Blog

Help! They're Stealing My Home!

Thu, 22 Oct 2009 12:10:43 -0400

There it was, stuck on the door to my co-op apartment with chewing gum — a court summons. “Notice of petition to recover real property non-payment,” it said.

This had to be a mistake. Yes, I had gotten three months behind on my management fees — business was bad last year, and I hit bottom in February. But then my income picked up, and for five months I’d been sending the management company extra big checks to catch up. My last check, sent several days before, had paid off the entire previous balance, so that I owed only for the current month.

I went to my computer and checked my bank account. The check hadn’t cleared. Maybe it had been lost in the mail. I could just give them another check and clear this up.

Then I checked my mail. There was my check, for $1,609.55, returned uncashed by the management company. I was not to mail them checks, it said. I could send only certified checks to the co-op board’s lawyers.

This made no sense. My checks don’t bounce. The management company had been accepting my checks until then, and they’d all cleared the bank. Why were they being difficult?

I read the court summons. The lawyers had tacked hundreds of dollars of fines to what I owed. The debt I had thought I had whittled down to about $1,000 had suddenly blossomed up to nearly $4,000.

The next day I met with a lawyer. [Note: The guy has a long-established practice specializing in real estate law.] His fee for representing me in court would eat most of the $1,609.55, which was all I could pay for the month. But I felt helpless, surrounded by sharks. I couldn’t understand why the co-op board wouldn’t let me just pay off the debt, especially when I was so close. These people are crazy, I told the lawyer. I don’t want to deal with them.

We talked about options, including bankruptcy. It seemed extreme, because I am not that far into debt, but I had to save my home. Do you have more than $50,000 in equity, he asked. For reasons I don’t understand, he recommended bankruptcy only if I had less than $50,000 in equity. I will check, I said.

So I went online to find out what apartments are going for in the neighborhood these days. I knew prices had dropped, and I had no idea how far. But I’m carrying a mortgage of only $50,000, and in Westchester County, New York, an unheated garage is worth at least that much. Sales are slow, but units are selling.

I learned there is a 2-bedroom apartment in my co-op complex on the market for $222,500. I have a two-bedroom apartment. A 1-bedroom apartment is on the market for $189,000. The cheapest unit available in the neighborhood — in one of the rattier complexes — is a 1-bedroom fixer-upper, on the market for $130,000. So, I certainly have more than $50,000 in equity. More like $150,000, probably.

Finally, a light dawned. No wonder the co-op board is trying to keep me from paying off the debt. If they can “recover” my apartment, that equity goes to the corporation.

I wasn’t able to go to the court hearing; as I had come down with the flu. [Note: The lawyer was there on my behalf and said I didn't have to be there, so I didn't miss the hearing..] The lawyer’s office called and said the case had been “adjourned.” I was to be given more time to pay the debt, but how much time I do not know. Apparently I still have to pay the hundreds of dollars in fines. And I have no assurance the co-op board will not continue to tack on more fines and haul me into court a few more times. I had been paying them every penny I could scrape together, and it wasn’t good enough. I sent a formal complaint to the state attorney general’s office, but I have not heard back from them.

And note that tapping into the equity is not an option, for other reasons that would take time to explain.

Here’s my situation: I had seen a light at the end of the tunnel. Now the tunnel is ten miles longer, and growing. I think the only way I can keep my home is to pay off the debt in one lump, so they can’t keep adding fines. So I’m rattling the tin cup, so to speak, and asking for donations (see tip jar). Please help me keep my home.

Tort Reform Prescription: First, Get the Facts

Mon, 14 Sep 2009 09:09:18 -0400

This is a follow up to the recent “Malpractice Reform for (Doctors Who Are) Dummies” post. Over the weekend I found more ammunition for my argument that physicians are misinformed if they think tort reform is essential to reducing their malpractice premium costs. Further, while the high cost of malpractice premiums is an issue that needs to be addressed, it’s not a critical factor in the nation’s overall health care costs.

For years, conservatives blamed out-of-control malpractice litigation for rising health care costs. Today it’s an article of faith on the Right that the nation’s courts are clogged with greedy plaintiffs bringing frivolous cases against doctors in the hopes of getting a jackpot jury award (much evidence to the contrary). If only that were stopped, they say, health care costs would drop like a rock.

Let’s look at Texas. Texas has put itself through several rounds of reforming tort, beginning with a 1995 law that Gov. George W. Bush considered one of his crowning achievements. As explained in this PBS Frontline documentary, tort reform was identified as a winning wedge issue by Karl Rove back in the 1980s. At the time, some jury awards related to work-related injuries, such as mesothelioma from asbestos exposure, were making headlines in Texas. Rove persuaded Texans that greedy litigants and predatory trial lawyers were the bogeymen responsible for most of the states’ problems.

The most recent reform, the Medical Malpractice and Tort Reform Act of 2003, has been credited with cutting in half the number of malpractice lawsuits in Texas and reducing the cost of medical malpractice insurance by 30 percent. And that’s good, right?

There are two catches in this story. The first catch, as explained by Mitchell Schnurman of the Dallas/Fort Worth Star-Telegram:

Healthcare spending has grown faster in Texas than the rest of the country. Patients are paying more for health insurance and medical bills. Doctors do more tests and scans, an indication that so-called defensive medicine hasn’t declined here.

I keep writing about this, but it bears repeating — although doctors complain that they are forced to order unnecessary tests and procedures out of fear of being sued, in the real world cutting the risk of malpractice doesn’t change their test- and procedure-ordering habits. The claim that “defensive medicine” is a significant driver of health care costs appears to be a myth, albeit one that many doctors fervently believe.

And, one more time — clamping down on malpractice lawsuits and capping awards has no impact on overall health care costs. We’ve seen this over and over again, in state after state. Even signficantly reducing malpractice costs and physician’s malpractice insurance premiums do not stop health care costs from shooting up. Yet the myth that tort reform is key to lowering health care costs will not die.

But, you might say, at least the doctors got some good out of it, right? This takes us to the other catch. There is evidence the insurance companies in Texas did not drop their rates because of tort reform, but because the state’s insurance commissioner forced them to drop their rates. Shortly after the passage of the Medical Malpractice and Tort Reform Act of 2003, two major Texas insurance carriers requested increases in malpractice insurance rates. One, the Joint Underwriting Association, filed for a rate increase of 35 percent and 68 percent for doctors and hospitals, respectively. Malpractice insurance rates did not increase only because the state insurance commissioner denied the request.

Americans for Insurance Reform and the Center for Justice and Democracy (and, yes, the latter is a trial lawyers’ association) have data that show increases and decreases in physicians’ medical malpractice insurance have less to do with malpractice costs than with swings in the business cycle that have nothing to do with tort. Differences in malpractice insurance premium costs from one state to another often are more the result of state insurance boards keeping their thumbs on what insurers charge, or not, than whether tort is “reformed.”

It’s important for physicians to understand that, while they have a legitimate grievance about the cost of their malpractice premiums, it makes no sense for them to insist that tort reform be part of the nation’s health care reform policies. And it’s important for everyone to understand that, as far as out-of-control health care costs are concerned, tort is a red herring.

9/11: The Story, The Shrines, The Meaning

Fri, 11 Sep 2009 10:09:38 -0400

The Story

When I meet someone who says he was in lower Manhattan on September 11, I apply a little test. Yes, I was watching from an office building on West 17th Street, I say. A high-rise. We had a clear view. Where were you, exactly?

If the answer is vague — standing on a corner or watching out a window — with no specific details offered, I figure the guy is blowing smoke. He wasn’t there. People who were there launch into The Story. The Story varies, of course, but the usual details involve the precise location, such as street name or building, where they stood to watch the towers collapse; where they had just been; where they had planned to go; the people they knew who were, or might have been, in the towers; and if they were close enough, mention of the flaming objects, and people, they saw falling from the sky.

Eight years ago The Story was told urgently. Now the telling is more mechanical, as if reciting a lesson. The details are no longer raw and jumbled, but polished and fixed into place. But The Story still comes out. We still feel a need to tell it.

The Shrines

There were details about life in New York in those days that didn’t come across on television. You had to be in New York to appreciate how the city turned into a shrine, for example. At first there were photocopied pictures of the missing ones afixed to lampposts and scaffolding everywhere. Then came the flowers, cards, notes, candles, flags. Little shrines grew like kudzu all over the city, covering sidewalks and spreading through subway stations.

The Smell

Something else you couldn’t see on television was The Smell. For weeks after, lower Manhattan and Brooklyn were permeated with a sharp, bitter smell of burned plastic, metal, fuel, and we didn’t want to think about what else.

Just a few days after September 11, people who spent large amounts of time where The Smell was strongest began to report skin and respiratory problems. A common condition was being diagnosed by doctors as “World Trade Center cough.” Some people wore surgical masks when out walking.

Still, all the news reports tols us not to be concerned about The Smell. The Environmental Protection Agency issued five press releases within ten days of the attack assuring people that the air was safe to breathe. We would learn later that the truth was being censored.

On September 12, EPA head Christine Todd Whitman issued a memo: “All statements to the media should be cleared through the NSC [National Security Council in the White House] before they are released.” Thus, facts and recommendations from EPA scientists were muzzled in favor of the cheerful, but false, news that there was nothing in the air to worry about.

Recommendations that people with asthma or other breathing problems should take precaution were stricken. Warnings that the dust outside and inside office and apartment buildings was laced with toxins and should be cleaned by professionals never made it to the public.

A few days after 9/11, Congressman Jerrold Nadler set up the Ground Zero Elected Officials task force. The task force decided to conduct its own air quality tests. One September night city council candidate Alan Gerson and Councilwoman Kathryn Freed snuck some scientists with air testing equipment past the barricades. These scientists made the first independent measurements of both air quality in lower Manhattan and asbestos debris within residential apartments. The scientists found levels of asbestos that were more than double what government guidelines say are “safe.” Breathing asbestos fibers can cause the deadly lung cancer mesothelioma and a host of other diseases.

On September 30, Mayor Rudy Giuliani said,

“There is a lot of questions about the air quality because there are at times in downtown Manhattan and then sometimes even further beyond that, a very strong odor. The odor is really just from the fire and the smoke that continues to go on. It is monitored constantly and is not in any way dangerous. It is well below any level of problems and any number of ways in which you test it.”

On October 26, the New York Daily News published a report by Juan Gonzalez, “A Toxic Nightmare at a Disaster Site.” Gonzalez reported that the EPA had found levels of benzene and dioxin in the air that were several times above the danger zone. Gonzalez wrote more stories revealing that the city’s asbestos-cleanup instructions were dangerously lax.

What I know is that I made my way to the Financial District in mid-October, and after only an hour of walking around my eyes and throat were burning. This didn’t feel “safe.”

The Dying

Meanwhile, the dedicated firefighters, policemen, and others who worked daily at Ground Zero — the heroes of the hour — breathed toxins all day long without proper safety equipment and instruction. The Occupational Safety and Health Administration (OSHA) refused to enforce worker safety standards even after months had passed and the work was no longer an “emergency.”

A recent study revealed that the a quarter of Ground Zero workers still have persistent lung problems. There doesn’t seem to be an official tally of 9/11 responders who have since died of diseases caused by exposure to toxins, although some news stories put the number at around 100. Keep in mind that some kinds of cancers related to toxin exposure can take decades to develop.

Juan Gonzalez has a recent story in the Daily News about Joe Picurro, an ironworker who volunteered at Ground Zero. Today Picurro is dying, painfully. “The list of ailments ravaging his body is stunning,” Gonzalez writes.

Officially, about 3,017 people died in the terrorist attacks of September 11. Because no one bothered to protect the health of Ground Zero workers, more will die in the years ahead.

The Meaning

There were some things one didn’t see much in New York City. For example, it would be months before I saw the T-shirts with the flaming towers and weeping bald eagle, and I had to go home to Missouri to see them. The imagery seemed as crass as photographing one’s mother’s last moments of life and putting that image on a T-shirt. Or maybe you could celebrate that special moment when a loved one’s vital signs monitor flatlined.

The ideologues pushing the obscene “9/12 Project” want to take us all back “to the place we were on September 12, 2001.” Anyone who really wants to go back there wasn’t in New York. Clearly, the 9/12ers have internalized their own Story, and that Story has very little to do with anything that happened in lower Manhattan and the Pentagon on 9/11.

To me, there’s the Meaning of the day and the Meaning of the Meaning. The first is personal; the second is pathological. The second, to me, illustrates all the ways humans separate themselves from anything real.

It’s much more satisfying to “remember” 9/11 with brash, jingoistic rah rah than to fully acknowledge that day, that moment, with all its heartbreak. It’s more satisfying to enshrine the image of firefighters raising a flag than to see to it they got proper breathing equipment or medical care. It feels better to use 9/11 as a club to bash your enemies with than to fully acknowledge what happened, mistakes and corruption included.

Note the inverse proportion: The further away people were from the events of that day, the more they want to glorify it.

There was glory that day, but not of the sort Glenn Beck wants to fabricate. To me, there was glory in the fact that thousands of people evacuated the towers, walking orderly and calmly down endless flights of stairs. There was no panic or trampling. The infirm were helped by friends and strangers alike.

There was glory in the way New Yorkers reached forward to do what they could. On that day I saw lines of New Yorkers, sometimes several blocks long, winding around hospitals. Sorrowing, they stood in line for hours to give blood, to give whatever they could give. It turns out there was no need for the blood, but the giving was beautiful nonetheless.

This is what I choose to remember, part of my Story. I still feel a need to tell it.

Hey, Righties! Read the Bill!

Thu, 10 Sep 2009 13:09:27 -0400

How come all the righties against health care reform who tell me to “read the bill” — very obviously haven’t read “the bill”?

For that matter, they seem unaware that there isn’t any one “bill” but several versions of bills floating around in Congress at the moment. However, the one being referred to as “the bill” is H.R. 3200, which I believe is the only version that’s advanced enough to have been published. It’s on the Thomas Library of Congress website.

The charge is that in last night's speech President Obama was lying about illegal immigrants not getting free health care. Rep. Wilson heckled the President on this point, and today a number of rightiebots are marching around saying “Obama lied read the bill … Obama lied read the bill… Obama lied read the bill.” Etc.

Ladies and gentlemen, I give you this bit from H.R. 3200:

SEC. 246. NO FEDERAL PAYMENT FOR UNDOCUMENTED ALIENS.

Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States.

So if H.R. 3200 is “the bill,” then it was Wilson who lied, not Obama.

Recently the Annenberg “Fact Check” site published “Twenty-six Lies About H.R. 3200,” which answers a viral email being spread by health care reform opponents. It’s a good resource. Of course, there’s nothing better than finding the precise wording in “the bill” itself to show the “read the bill” crowd that they ought to read the bleeping bill.

Malpractice Reform for (Doctors Who Are) Dummies

Tue, 8 Sep 2009 16:09:23 -0400

The AMA’s slow and begrudged support to the contrary, many physicians seem ambivalent about health care reform. They are holding out for federal tort reform, which they believe is key to lowering their malpractice insurance costs.

The doctors’ perspective was expressed this weekend in the Washington Post by Dr. Arthur Feldman, who wrote in “10 Things I Hate About Health-Care Reform“:

Malpractice costs rise each year, as do the number of frivolous lawsuits. Our practice has seen a 10 percent increase in malpractice expenses this year. Sure, doctors make mistakes, and patients deserve fair compensation for their injuries and lost wages, but in this area of the law, physicians and hospitals are too often at the mercy of capricious juries.

I’ve got a message for you doctors: You’re being snookered.

The costs of malpractice suits and awards are not the only driver of the cost of malpractice insurance. They may not even be the primary driver of malpractice insurance costs. Insurance companies don’t just take in premiums and pay out damages. Insurers rely heavily on return from investments for profits, and during times of economic downturn insurers tend to crank up premiums to cover investment losses.

And when an insurance company has a really disastrous quarter because of bad investments, they make excuses to stockholders by blaming out-of-control litigation.

Americans for Insurance Reform (AIR) documented a long-standing pattern of physician malpractice insurance premiums going up during times when the actual amount of awards payouts were stable or even going down. I say again, you doctors are getting snookered.

The insurance lobby has done a bang-up job persuading doctors that the only way to reduce malpractice premiums is to stop greedy litigants from filing frivolous suits. The truth is, the insurance companies charge what traffic will bear, or as much as state insurance boards will let them get away with, no matter what happens in courts.

About Those Out-of-Control Juries

As I’ve also written in the past, tort is mostly a state issue. Most personal injury lawsuits, including malpractice suits, are filed under state laws. And state laws are all over the map. In the past several years more than half of the states have enacted rigorous tort reform laws that include caps on non-economic and “pain and suffering” damages, raising the burden of proof to bring suit, regulating lawyers’ compensation practices, etc. etc. In other words, there’s a better than even chance the tort laws of the state you live in already have been “reformed.”

Medical malpractice claims, inflation-adjusted, have dropped 45 percent since 2000, according to AIM. A great many individual states, such as Pennsylvania, have had dramatic reductions in the number of medical malpractice cases in the past several years.

As to the “frivolous” nature of medical malpractice cases being filed — there are all kinds of reports with all kinds of numbers. The Harvard School of Public Health did a study in 2006 that showed “frivolous lawsuits” were not the chief cause of expenses.

[T]he authors found that the claims that did not involve errors absorbed a relatively small piece of the costs of compensation. Eliminating those claims would decrease the system’s compensation and administrative costs by no more than 13% to 16%. “Many of the current tort reform initiatives, such as caps on noneconomic damages, are motivated by a perception that ‘jackpot’ awards in frivolous suits are draining the system,” explained Michelle Mello, an associate professor of health policy and law at HSPH and a co-author of the study. “But nearly 80% of the administrative costs of the malpractice system are tied to resolving claims that have merit. Finding ways to streamline the lengthy and costly processing of meritorious claims should be in the bullseye of reform efforts.”

Let me repeat that — Tort reformers have been telling us for years that costs are too high because so many juries are giving away jackpots to plainiffs with frivolous suits. Therefore, they say, getting malpractice costs under control requires finding ways to prevent so many people from filing lawsuits. But the alleged frivolous lawsuits aren’t the real problem. Many physicians, like Dr. Feldman, have been sold the bill of goods that it is the problem, however. So they stand with the insurance industry to block reform. Snookered, I tell you.

No Tort Reform Without Health Care Reform!

The cry from many physicians is “no health care reform without tort reform!” They should turn that around — no tort reform without health care reform!

Since so many states have capped noneconomic and pain-and-suffering damages, the big bucks are being paid for economic damages. “Economic damages” are costs the plaintiff can document at time of trial, including actual medical bills and written estimates for treatment that the plaintiff must pay. If we had real national health care reform, in particular single payer, plaintiffs wouldn’t be able to claim those costs.

According to Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law and author of The Medical Malpractice Myth, obstetrician-gynecologists pay huge premiums because injury to a newborn can mean a lifetime of medical bills. In comparison, gerontologists’ premiums are exceedingly low.

And you doctors are holding out for tort reform … why, exactly?

Personal note: Often when I write about tort reform I get razzed because I also blog for a mesothelioma litigation site. But, full disclosure, I’m not contracted by the law firm but by the technology company that runs the site, and nobody tells me what to write or what opinions I’m supposed to express. And I was hired because I already was writing about tort reform and health care reform on my politics site. However, if you are in favor of tort reform because you want to hurt trial lawyers, eliminating health care costs from awards would do it. Just saying.

The Bigger Picture

I hate to break it to you doctors, but your issues with malpractice premiums don’t even amount to a drop in the bucket of the overall problem. If all American doctors woke up tomorrow and found that the Good Actuarial Fairy was cutting their malpractice premiums to zero from now on, physicians would be very, very happy. But it would have no noticeable impact on the nation’s health care crisis, because the cost of your malpractice insurance is less than one half of one percent of the nation’s total health care expenditure, according to AIM.

Regarding “defensive medicine,” I’ve covered this before, but here it goes again. Yes, physicians self-report that X amount of the tests and procedures they order are done “defensively,” in case they are sued. But much empirical evidence suggests that physicians are kidding themselves. In the several states in which malpractice suits are drastically reduced, there has been no noticeable difference in the cost of practicing medicine. Costs continue to rise as much — and more in some cases — as in states that haven’t been “reformed.”

Tort reform advocates like to cite a 1996 study by Kessler and McClellan that in certain heart disease cases, there was a 5 to 7 percent increase in treatment costs in a high-litigation state compared to a low-litigation state. This is about the only independent study that shows an actual defensive medicine effect, as opposed to self-reported numbers. However, according to Tom Baker, (1) the data for this study dates from the 1980s; and (2) a second study published in 2002 showed that managed care erased most of the difference.

On Jan. 8, 2004 , the Congressional Budget Office also said the Kessler-McClellan study wasn’t a valid basis for projecting total costs of defensive medicine.

CBO: When CBO applied the methods used in the study of Medicare patients hospitalized for two types of heart disease to a broader set of ailments, it found no evidence that restrictions on tort liability reduce medical spending. Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts.

At the time of this report, the nonpartisan CBO was headed by Douglas Holtz-Eakin, who previously was chief economist for President Bush’s Council of Economic Advisers.

So, doctors, what say you? Are you still so certain you have to have tort reform?