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By REED ABELSON and MILT FREUDENHEIMPublished: May 4, 2008

The economic slowdown has swelled the ranks of people without health insurance. But now it is also threatening millions of people who have insurance but find that the coverage is too limited or that they cannot afford their own share of medical costs.

Karena Cawthon for The New York Times

When Marianne Falacienski’s husband started a new job, the family could not afford the health plan. Ms. Falacienski, 32, found individual coverage only for him and their daughter, Gabrielle.

The Mounting Burden for Health Care  

Many of the 158 million people covered by employer health insurance are struggling to meet medical expenses that are much higher than they used to be — often because of some combination of higher premiums, less extensive coverage, and bigger out-of-pocket deductibles and co-payments.

With medical costs soaring, the coverage many people have may not adequately protect them from the financial shock of an emergency room visit or a major surgery. For some, even routine doctor visits might now take a back seat to basic expenses like food and gasoline.

“It just keeps eating into people’s income,” said James Corbin, a former union official who works for the local utility in Tucson.

Mr. Corbin said that under their employer’s health plan, he and his co-workers are now obliged to pay up to $4,000 of their families’ annual medical bills, on top of about $1,600 a year in premiums. Five years ago, they paid no premiums and were responsible for only about $2,000 of their families’ medical bills.

“That’s a big jump,” Mr. Corbin said. “You’ve just lost a month’s pay.

”Already, many doctors say, the soft economy is making some insured people hesitant to get care they need, reluctant to spend a $50 co-payment for an office visit. Parents “are waiting longer to bring in their children,” said Dr. Richard Lander, a pediatrician in Livingston, N.J. “They say, ‘The kid isn’t that sick; her temperature is only 102.’ ”

The problem of affording health care is most acute for people with no insurance, a group expected to soon exceed 48 million, but those with insurance say they too are feeling the pain.

Since the recession of 2001, the employee’s average cost of an annual health care premium for family coverage has nearly doubled — to $3,300, up from $1,800 — while incomes have come nowhere close to keeping up. Factor in other out-of-pocket medical costs, and the portion of the average American household’s income that goes toward health care has risen about 12 percent, according to the consulting and accounting firm Deloitte, and is now approaching one-fifth of the average household’s spending.

In a recent survey by Deloitte’s health research center, only 7 percent of people said they felt financially prepared for their future health care needs.

Shirley Giarde of Walla Walla, Wash., was not prepared when her husband, Raymond, suddenly developed congestive heart failure last year and needed a pacemaker and defibrillator. Because his job did not provide health benefits, she has covered them both through a policy for the self-employed, which she obtained as the proprietor of a bridal and formal-wear store, the Purple Parasol.

But when Raymond had his medical problems, Ms. Giarde discovered that her insurance would cover only $22,000, leaving them with about $100,000 in unpaid hospital bills.

Even though the hospital agreed to reduce that debt to about $50,000, Ms. Giarde is still struggling to pay it — in part because the poor economy has meant slumping sales at the Purple Parasol. Her husband, now disabled and unable to work, will not qualify for Medicare for another year, and she cannot afford the $758 a month it would cost to enroll him in a state-run insurance plan for individuals who cannot find private insurance.

She recently refinanced her car, a 2002 Toyota Highlander, to help pay for her husband’s heart medicines, which cost some $400 a month.

Experts say that too often for the underinsured, coverage can seem like health insurance in name only — adequate only as long as they have no medical problems.

“There’s a real shift in the burden of health care to people who happen to be sick,” said Paul B. Ginsburg, the president of the Center for Studying Health System Change, a research group in Washington.

Companies and policy makers have yet to focus on what the faltering economy means for employees’ medical care, said Helen Darling, president of the National Business Group on Health, a Washington association of about 200 large employers.

“It’s a bad-news situation when an individual or household has to pay out-of-pocket three, four or five times as much for their health plan as they would have at the time of the last recession,” she said. “Americans have been giving their pay raise to the health care system.”

 The Mounting Burden for Health Care

Sage Holben, a 62-year-old library technician with diabetes who is active in her local union in St. Paul, says that in 2003 union members agreed to a two-year freeze on wages to protect their health care coverage. But for the union, which will begin talks on the next contract this fall, it may be difficult to continue that trade-off, Ms. Holben said. “It’s at the point where we’re losing, anyway,” she said.

“I live paycheck to paycheck,” said Ms. Holben, who makes close to $40,000 a year at Metropolitan State University.

When she took the job in 1999, she says, the health benefits required no co-payments for doctor visits. Now, her out-of-pocket cost per visit is $25, and she pays $38 a month for her diabetes medicine. She has not been to the eye doctor in two years, even though eye exams are crucial for people with diabetes and she knows she needs new glasses. Nor does she monitor her blood sugar as regularly as she should because of the cost of the supplies.

“It’s not an extravagant expense,” she said. “It just adds up.” And it comes atop the increasing cost of utilities, gasoline and food — and the few hundred dollars of repairs her 1994 Chevrolet Cavalier needs.

Many employers do recognize that their workers are struggling financially even as they are asking them to pick up more of their health-care bills.

“It makes the work we have to do even more challenging,” said Anne Silverman, the vice president in charge of benefits in North America for the publishing company Reed Elsevier. “Employees are being stretched in terms of their disposable income.”

Even so, more companies may see themselves as having little choice but to require employees to pay even more of their health expenses, said Ted Nussbaum, a benefits consultant at the firm Watson Wyatt Worldwide. And when a weak economy undermines job security, he said, workers may simply have to accept reduced benefits.

While Mr. Nussbaum and other consultants say it is unlikely that significant numbers of employers will simply drop coverage for their workers, the weak economy could prompt more of them to push for so-called consumer-driven plans. Such plans tend to offset lower premiums with higher annual deductibles.

And while these plans often allow employees to put pre-tax savings into special health care accounts, they typically end up forcing the worker to assume a bigger share of overall medical costs. About six million people are now enrolled in these medical plans.

Among employers, the hardest pressed may be small businesses. Their insurance premiums tend to be proportionately higher than ones paid by large employers, because small companies have little bargaining clout with insurers.

Health costs are “burying small business,” said Mike Roach, who owns a small clothing store in Portland, Ore. He recently testified on health coverage at a Senate hearing led by Ron Wyden, Democrat of Oregon.

Last year, Mr. Roach paid about $27,000 in health premiums for his eight employees. “It’s a huge chunk of change,” he said, noting that he was forced to raise his employees’ yearly deductible by 50 percent, to $750.

Around the nation, some workers are simply priced out of their employee health plans.

After Brian Falacienski of Milton, Fla., was laid off last year from his job as a surveyor for a construction company, he found another position. But the cost of his new health plan — $800 a month for coverage with a $1,000 annual deductible — was beyond the means of Mr. Falacienski, 38, who is married and has a 2-year-old daughter.

His wife, Marianne, started researching individual insurance policies and was able to find policies for her husband and daughter offering basic, if minimal, coverage, costing $161 a month for father and daughter. But Ms. Falacienski, 32, who has arthritis and the severe digestive disorder Crohn’s disease, is now uninsured. Because of her conditions, she said, four major insurers rejected her.

“I even applied for Medicaid,” she said, “but I wasn’t low-income enough.”

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Medical insurer to halt reimbursements for mistakes it calls preventable Indianapolis-based WellPoint, the nation’s largest commercial health insurer in terms of membership, on Wednesday announced it is changing its policy and halting reimbursement payments to hospitals and doctors for 11 medical errors considered preventable.

WellPoint, which provides benefits to about 35 million Americans, is following the lead of the U.S. Centers for Medicare and Medicaid Services, which last year announced it was planning on ending payments for some medical mistakes.

“We know there are a number of events that happen for hospitalized patients that are absolutely preventable,” said Dr. Sam Nussbaum, WellPoint’s executive vice president for clinical health policy and chief medical officer. “These are errors that really relate to the process of care.”Many hospital-acquired infections, he said, could be prevented by making sure caregivers regularly wash their hands between seeing patients. Nussbaum also urged patients or their family members to be proactive to help prevent errors by asking questions and speaking up if they have concerns about the care being provided.

Other insurers may follow the federal agency’s new policy.

“We continue to evaluate the new Medicare policies and how they may be applied to best meet the needs of our members,” said Debora Spano, spokeswoman for Minnesota-based UnitedHealthcare.

Under the policy change, expected to be rolled out across the nation this year, WellPoint said it will no longer provide payment for three errors: surgery on the wrong body part, a wrong surgery performed on a patient, or surgery on the wrong patient.

The company also said it will not provide payment to cover additional costs incurred by a health provider for eight other mistakes, such as bed sores, a sponge left in the body after surgery and urinary tract infections associated with catheter use.

Officials will use several methods for identifying the errors, including comparing a patient’s diagnosis and condition upon admission to a hospital with the treatment received during the hospital stay.

The 11 errors identified by WellPoint are those that have been defined as preventable by the Centers for Medicare and Medicaid Services and the National Quality Forum.

WellPoint, which operates Anthem Blue Cross and Blue Shield in Indiana, added that it also will make sure its members are not billed for these errors.

The U.S. Centers for Disease Control and Prevention estimates about 2 million infections are acquired each year in hospitals and other health-care facilities, resulting in roughly 90,000 deaths and $4.5 billion in extra costs.

In 2006, Medicare reported 322,946 cases of patients who had a pressure ulcer, or bedsore, as a secondary diagnosis, with the average cost per case exceeding $40,000.

WellPoint’s move is part of an effort across the health-care industry to better link reimbursement rates with quality of care. Other efforts include pay-for-performance programs from which doctors get more compensation if their patients receive recommended care and screenings, such as blood-sugar tests for diabetics.

“What people are doing to create more awareness and transparency in the marketplace is going to be good for the consumer, because those hospitals that have focused on patient-centered care are going to have a business advantage,” said Keith Jewell, chief operating officer of St. Francis Hospital & Health Centers in Indianapolis.

However, Jewell added that he hopes any savings WellPoint gets from halting these payments would result in reduced premiums for patients.

Nussbaum said WellPoint has been promoting safe practices.

WellPoint said it would give consideration in complex cases involving the care of patients who may beprone to developing infections or to other problems included on its list of 11 preventable errors. “Some of these are in a gray zone,” Nussbaum said.

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WASHINGTON — Death rates from motorcycle crashes have risen steadily since states began weakening helmet laws about a decade ago, according to a Gannett News Service analysis of federal accident reports. Deaths have increased, so has the proportion of older riders killed. Dying on a motorcycle could soon become a predominantly middle-aged phenomenon, the GNS analysis shows.Most states once required all motorcycle riders to wear helmets. But a trend in the other direction began accelerating after 1995, when the federal government decided to stop withholding highway money from states without helmet laws. As states weakened or repealed the laws, the percentage of riders who wore helmets began dropping. And fatality rates increased.

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By JEFFREY ROSEN

I.The headquarters of the U.S. Chamber of Commerce, located across from Lafayette Park in Washington, is a limestone structure that looks almost as majestic as the Supreme Court. The similarity is no coincidence: both buildings were designed by the same architect, Cass Gilbert. Lately, however, the affinities between the court and the chamber, a lavishly financed business-advocacy organization, seem to be more than just architectural. The Supreme Court term that ended last June was, by all measures, exceptionally good for American business. The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history. The current term, which ends this summer, has also been shaping up nicely for business interests.I visited the chamber recently to talk with Robin Conrad, who heads the litigation effort, about her recent triumphs. Conrad, an appealing, soft-spoken woman, lives with her family on a horse farm in Maryland, where she rides with a fox-chasing club called the Howard County-Iron Bridge Hounds. Her office, playfully adorned by action figures of women like Xena the Warrior Princess and Hillary Rodham Clinton, has one of the most impressive views in Washington. “You can see the White House through the trees,” she said as we peered through a window overlooking the park. “In the old days, you could actually see people bathing in the fountain. Homeless people.”Conrad was in an understandably cheerful mood. Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes. Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike. In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ “Examples like these point to an ideological sea change on the Supreme Court. A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.” Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy. Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans? Only history will ultimately make this clear. One thing, however, is certain already: the transformation of the court was no accident. It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country’s political culture.

II. The origins of the business community’s campaign to transform the Supreme Court can be traced back precisely to Aug. 23, 1971. That was the day when Lewis F. Powell Jr., a corporate lawyer in Richmond, Va., wrote a memo to his friend Eugene B. Snydor, then the head of the education committee of the U.S. Chamber of Commerce. In the memo, Powell expressed his concern that the American economic system was “under broad attack.” He identified several aggressors: the New Left, the liberal media, rebellious students on college campuses and, most important, Ralph Nader. Earlier that year, Nader founded Public Citizen to advocate for consumer rights, bring antitrust actions when the Justice Department did not and sue federal agencies when they failed to adopt health and safety regulations.Powell claimed that this attack on the economic system was “quite new in the history of America.” Ever since 1937, when President Franklin D. Roosevelt threatened to pack a conservative Supreme Court with more progressive justices, the court had largely deferred to federal and state economic regulations. And by the ’60s, the Supreme Court under Chief Justice Earl Warren had embraced a form of economic populism, often favoring the interests of small business over big business, even at the expense of consumers. But what Powell saw in the work of Nader and others was altogether more extreme: a radical campaign that was “broadly based and consistently pursued.”To counter the growing influence of public-interest litigation groups like Public Citizen, Powell urged the Chamber of Commerce to begin a multifront lobbying campaign on behalf of business interests, including hiring top business lawyers to bring cases before the Supreme Court. “The judiciary,” Powell predicted, “may be the most important instrument for social, economic and political change.” Two months after he wrote the memo, Powell was appointed by Richard Nixon to the Supreme Court. And six years later, in 1977, after steadily expanding its lobbying efforts, the chamber established the National Chamber Litigation Center to file cases and briefs on behalf of business interests in federal and state courts.Today, the Chamber of Commerce is an imposing lobbying force. To fulfill its mission of serving “the unified interests of American business,” it collects membership dues from more than three million businesses and related organizations; last year, according to the Center for Responsive Politics, the chamber spent more than $21 million lobbying the White House, Congress and regulatory agencies on legal matters. But its battle against the forces of Naderism got off to a slow start. In 1983, when Robin Conrad arrived at the chamber, the Supreme Court was handing Nader and his allies significant victories. That year, for example, the court held that President Reagan’s secretary of transportation, Andrew L. Lewis Jr., acted capriciously when he repealed a regulation, inspired by Nader’s advocacy, that required automakers to install passive restraints like air bags. In 1986, the chamber supported a challenge to the Environmental Protection Agency’s aerial surveillance of a Dow Chemical plant. The chamber’s side lost, 5-4.But eventually, things began to change. The chamber started winning cases in part by refining its strategy. With Conrad’s help, the chamber’s Supreme Court litigation program began to offer practice moot-court arguments for lawyers scheduled to argue important cases. The chamber also began hiring the most-respected Democratic and Republican Supreme Court advocates to persuade the court to hear more business cases. Although many of the businesses that belong to the Chamber of Commerce have their own in-house lawyers, they would have the chamber file “friend of the court” briefs on their behalf. The chamber would decide which of the many cases brought to its attention were in the long-term strategic interest of American business and then hire the leading business lawyers to write supporting briefs or argue the case.Until the mid-’80s, there wasn’t an organized group of law firms that specialized in arguing business cases before the Supreme Court. But in 1985, Rex Lee, the solicitor general under Reagan, left the government to start a Supreme Court appellate practice at the firm Sidley Austin. Lee’s goal was to offer business clients the same level of expert representation before the Supreme Court that the solicitor general’s office provides to federal agencies. Lee’s success prompted other law firms to hire former Supreme Court clerks and former members of the solicitor general’s office to start business practices. The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.At times, the strategic calculations can be quite personal. Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, Conrad told me, having well-known former clerks involved in submitting a brief can be especially important. “When Justice O’Connor was on the bench and we knew her vote was very important, we had a case where the opposition had her favorite clerk on the brief, so we retained her next-favorite clerk,” she said with a laugh. “We won.”In our conversation, Conrad was especially enthusiastic about Maureen Mahoney, a former clerk for Chief Justice Rehnquist and one of the top Supreme Court litigators who coordinate strategy with the chamber. When Mahoney agreed in 2005 to represent an appeal by the disgraced accounting firm Arthur Andersen, which was convicted in 2002 of obstructing justice by shredding documents related to the audit of Enron, few people thought the Supreme Court would take the case. “The climate was very anti-Enron,” Mahoney told me, “and it was viewed as a doomed petition.”Mahoney rehearsed her Supreme Court argument in a moot court sponsored by the chamber. (”She was absolutely dazzling,” Conrad recalls.) On April 27, 2005, Mahoney stood calmly before the justices and delivered one of the best oral arguments I’ve ever seen at the Supreme Court. She argued that because Arthur Andersen’s accountants had followed a standard document-destruction procedure before receiving the government’s subpoena, they couldn’t be guilty of a crime; they weren’t aware what they were doing was criminal. The Supreme Court unanimously agreed and reversed the conviction, 9-0.The Arthur Andersen case is a good example of how significantly the Supreme Court has changed its attitude about cases involving securities fraud — and business cases more generally — from the Warren to the Roberts era. In a case in 1964, the court ruled that aggrieved investors and consumers could file private lawsuits to enforce the securities laws, even in cases in which Congress hadn’t explicitly created a right to sue. In the mid-1990s, however, Congress substantially cut back on these citizen suits, and the court today has shown little patience for them. Mahoney says she sees her victory in the Arthur Andersen case as significant because it applied the same principle in criminal cases involving corporate wrongdoing that the court had already been recognizing in civil cases: namely, “refusing to create greater damage remedies or criminal penalties than Congress has explicitly specified.” She describes the case as “a very important win for business.”This term, the Supreme Court has continued to cut back on consumer suits. In a ruling in January, the court refused to allow a shareholder suit against the suppliers to Charter Communications, one of the country’s largest cable companies. The suppliers were alleged to have “aided and abetted” Charter’s efforts to inflate its earnings, but the court held that Charter’s investors had to show that they had relied on the deceptive acts committed by the suppliers before the suit could proceed. A week later, the court invoked the same principle when it refused to hear an appeal in a case related to Enron, in which investors are trying to recover $40 billion from Wall Street banks that they claim aided and abetted Enron’s fraud. As a result, the shareholder suit against the banks may be dead.

III. In addition to litigating cases before the court, the Chamber of Commerce also lobbies Congress and the White House in an effort to change the composition of the court itself. (Unlike many other government officials, the justices themselves are not, of course, subject to direct corporate lobbying.) The chamber’s efforts in this area were inspired by Robert Bork’s thwarted nomination to the court in 1987. Business groups were enthusiastic about Bork — not because of his conservative social views but because of his skepticism of vigorous antitrust enforcement. “In reaction to the Bork nomination, it struck us that we didn’t even have a process in place to be a player,” Conrad said. So the chamber set up a formal process for endorsing candidates after their nominations. The process was designed to be bipartisan; and the chamber has encouraged Democratic as well as Republican presidents to appoint justices. Nominees are evaluated solely through the prism of their views about business. “We’re very surgical in our analysis,” Conrad said. After the election of Bill Clinton, for example, the chamber endorsed Ruth Bader Ginsburg, who in addition to her pioneering achievements as the head of the women’s rights project at the A.C.L.U. had specialized, as a law professor, in the procedural rules in complex civil cases and was comfortable with the finer points of business litigation. The chamber was especially enthusiastic about Clinton’s second nominee, Stephen Breyer, who made his name building a bipartisan consensus for airline deregulation as a special counsel on the judiciary committee; and who, as a Harvard Law professor, advocated an influential and moderate view on antitrust enforcement.During Breyer’s confirmation hearings his sharpest critic was Ralph Nader, who testified that his pro-business rulings were “extraordinarily one-sided.” Another critic, Senator Howard Metzenbaum of Ohio, said that the fact that the chamber was the first organization to endorse Breyer indicated that “large corporations are very pleased with this nomination” and “the fact that Ralph Nader is opposed to it indicated that the average American has a reason to have some concern.” The chamber’s imprimatur helped reassure Republicans about Breyer, and he was confirmed with a vote of 87 to 9. “Frankly, we didn’t feel like we had anyone on the court since Justice Powell who truly understood business issues,” Conrad told me. “Justice Breyer came close to that.”The Breyer and Ginsburg nominations also came at a time when liberal as well as conservative judges and academics were gravitating in increasing numbers to an economic approach to the law, originally developed at the University of Chicago. The law-and-economics movement sought to evaluate the efficiency of legal rules based on their costs and benefits for society as a whole. Although originally conservative in its orientation, the movement also attracted prominent moderate and liberal scholars and judges like Breyer, who before his nomination wrote two books on regulation, arguing that government health-and-safety spending is distorted by sensational media reports of disasters that affect relatively few citizens. Since joining the Supreme Court, Breyer has also been an intellectual leader in antitrust and patent disputes, which often pit business against business, rather than business against consumers. In those cases, many liberal scholars sympathetic to economic analysis have applauded the court for favoring competition rather than existing competitors, innovation rather than particular innovators. “The court deserves credit for trying to rationalize a totally irrational patent system, benefiting smaller new competitors rather than existing big ones,” says Lawrence Lessig, an intellectual-property scholar at Stanford.Clinton’s nominations of Ginsburg and Breyer may have been welcomed by the chamber, but with the election of George W. Bush, the chamber faced a dilemma. Ever since the Reagan administration, there had been a divide on the right wing of the court between pragmatic free-market conservatives, who tended to favor business interests, and ideological states-rights conservatives. In some business cases, these two strands of conservatism diverged, leading the most staunch states-rights conservatives on the court, Antonin Scalia and Clarence Thomas, to rule against business interests. Scalia and Thomas were reluctant to second-guess large punitive-damage verdicts by state juries, for example, or to hold that federally regulated cigarette manufacturers could not be sued in state court. As a result, under Conrad’s leadership, the chamber began a vigorous campaign to urge the Bush administration to appoint pro-business conservatives. When it came time to replace Chief Justice William Rehnquist and Justice Sandra Day O’Connor, the candidate most enthusiastically supported by states-rights conservatives, Judge Michael Luttig, had a record on the Court of Appeals for the Fourth Circuit that some corporate interests feared might make him unpredictable in business cases. (”One of my constant refrains is that being conservative doesn’t necessarily mean being pro-business,” Conrad told me.) The chamber and other business groups enthusiastically supported John Roberts, who had been hired by the chamber to write briefs in two Supreme Court cases in 2001 and 2002. At the time of Roberts’s nomination, Thomas Goldstein, a prominent Supreme Court litigator, described him as “the go-to lawyer for the business community,” adding “of all the candidates, he is the one they knew best.” When Roberts was nominated, business groups lobbied senators as part of the campaign for his confirmation.The business community was also enthusiastic about Samuel Alito, whose 15-year record as an appellate judge showed a consistent skepticism of claims against large corporations. Ted Frank of the American Enterprise Institute predicted at the time of the nomination that if Alito replaced O’Connor, he and Roberts would bring about a rise in business cases before the Supreme Court. Frank’s prediction was soon vindicated.“There wasn’t a great deal of interest in classic business cases in the last few years of the Rehnquist Court,” Carter Phillips, a partner at Sidley Austin and a leading Supreme Court business advocate, told me. In 2004, Judge Richard Posner, a founder of the law-and-economics movement, argued that the Rehnquist Court’s emphasis on headline-grabbing constitutional cases had politicized it, and called on the court to hear more business cases. The Roberts court has unambiguously answered the call. As Phillips told me, Roberts “is more interested in those issues and understands them better than his predecessor did.”

IV. Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog. And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent.Faced with these daunting numbers, the progressive antagonists of big business are understandably feeling beleaguered and outgunned. “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.”To gauge the degree of the frustration, I recently paid a visit to Ralph Nader, a few weeks before he announced his most recent campaign for president of the United States. It was a surprise to find that his office, the Center for Study of Responsive Law, shares an address in a grand building with the Carnegie Institution for Science. But the office itself, reassuringly, is buried on the ground floor, where Nader received me at a conference table surrounded by file cabinets stuffed with faded back issues of Mother Jones and The Nation.Nader was uncontrite about his 2000 run against Al Gore — which is often credited with helping George W. Bush win the presidency — and he insisted that because Clinton appointed justices like Breyer, Gore would have done the same. “Breyer hasn’t been worse than I feared, because I had real concern when he was nominated,” Nader told me. He conceded that, like Breyer, Democratic justices appointed by President John Kerry would presumably have been better on civil rights and liberties than John Roberts and Samuel Alito. Nevertheless, he disparaged Breyer as a “deregulation quasi-ideologue” who was able to weave a “tapestry of illusion” in his arguments by dealing in abstractions.The main casualty of the 2000 run, Nader said, is that he is no longer collaborating with America’s trial lawyers. They would ordinarily be his natural allies in representing consumer interests, but they donated heavily to Gore’s campaign. After 2000, the trial lawyers “have been vitriolic,” Nader explained. He blames them for not using their money to help counteract the influence of the Chamber of Commerce and other business groups before the federal courts. In part as a result of their stinginess, he said, his colleagues at Public Citizen are underfinanced and worn down. “There were some lawyers who left Public Citizen because they got tired of losing,” he said. “Everyone is desperately trying to hold on to whatever issues are left, and then they become demoralized and discouraged.”Thirty years after the Chamber of Commerce founded its litigation center to counteract his influence, Nader all but conceded defeat in the battle for the Supreme Court. With the decline of economic populism in Congress, the weakening of trade unions and the rise of globalization, the political climate, he lamented, was passing him by. “I recall a comment by Eugene Debs,” Nader said, looking at me intensely. “He said: The American people live in a country where they can have almost anything they want. And my regret is that it seems that they don’t want much of anything at all.”Nader chuckled quietly and shook his head. “I say ditto.”

V. If there is an anti-Nader — a crusading lawyer passionately devoted to the pro-business cause — it is Theodore Olson. One of the most influential Supreme Court advocates and a former solicitor general under President George W. Bush, Olson is best known for his winning argument before the Supreme Court in Bush v. Gore in 2000. But Olson has devoted most of his energies in private practice to changing the legal and political climate for American business. According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.Punitive damages — money awarded by civil juries on top of any awarded for actual harm that victims have suffered — are designed to penalize especially egregious acts of corporate misconduct resulting from malice or greed, and to deter similar wrongdoing in the future. In the 19th century, courts generally demanded a clear assignment of fault in cases where victims sued for injuries caused by malfunctioning products. It was hard for plaintiffs to recover in personal-injury cases unless the corporation was obviously at fault. But in the 20th century, in liability cases involving a rapidly expanding class of potentially dangerous products like cars, drugs and medical devices, courts increasingly applied a standard of “strict liability,” which held that manufacturers should pay whether or not they were directly at fault.The animating idea was that manufacturers were in the best position to prevent accidents by improving their products with better design and testing. They and their insurance companies (rather than society as a whole) would shoulder the costs of accidents, thus giving them an incentive to make their products safer. Encouraged by Ralph Nader’s book, “Unsafe at Any Speed,” published in 1965, courts began to see car accidents as predictable events that better car design could have prevented. In 1968, for example, a federal court held that car manufacturers could be sued for failing to make cars safe enough for drivers to survive crashes, even if the driver was at fault for the crash.A series of well-publicized awards in the 1980s and ’90s culminated in the largest punitive damage award in American history the $5 billion levied against Exxon after the Exxon Valdez oil spill in 1989. This was hardly typical: the median punitive award actually fell to $50,000 in 2001 from $63,000 in 1992. Nevertheless, critics like Olson claimed that multimillion-dollar punitive-damage verdicts were threatening the health of the economy. They resolved to fight back on several fronts. In his first Supreme Court argument, in 1986, Olson set out the broad contours of his argument: for most of English and American history, private litigants were entitled to be compensated for whatever damages they suffered, including pain and suffering, but any public wrongs like the failure of American business to make cars safer by adopting air bags should be addressed by legislation or regulation, not by the courts.Olson decided that his clients deserved not just a lawyer who could argue a case but a lawyer who could change the political culture. “You had to attack it in a broad-scale way in the legislatures, in the arena of public opinion and in the courts,” he told me recently. “I felt the business community had to approach this in a holistic way.” He set out, in lectures and op-ed pieces, to publicize especially egregious examples. The poster child for punitive-damage abuse, widely derided in TV and radio ads paid for by the business community, was a New Mexico grandmother who, in 1994, was awarded $2.7 million in punitive damages when she scalded herself with hot McDonald’s coffee. Consumer advocates countered that she had originally asked for $20,000 for medical expenses, which McDonald’s refused to pay, and the award appeared to have the effect of persuading McDonald’s to serve its coffee at a safer temperature. Nonetheless, the campaign to vilify plaintiffs’ lawyers has been effective enough that the American Association of Trial Lawyers recently changed its name to the fuzzier American Association for Justice.The business community made other inroads against punitive damages. Corporations financed campaigns against pro-punitive-damage state judges who had been elected with the assistance of large contributions from plaintiffs’ lawyers. The business community also helped persuade more than 30 states to either impose caps on punitive-damage awards or direct substantial portions of the awards to be paid into special state funds. In 1996, it helped persuade the Republican Congress, led by Newt Gingrich, to pass legislation that would cap punitive-damage awards in product-liability cases in every state court in the country. But in 1996, President Clinton, with what must have been perverse pleasure, vetoed the bill on the grounds that it violated principles of federalism and states rights to which conservatives claimed to be devoted. Thwarted by Clinton, and unable to persuade Congress to override the veto, opponents of punitive damages turned their attention back to the Supreme Court, looking for a victory they were unable to win in the political arena. Here, they were remarkably successful. As late as 1991, the court had refused to impose limits on a large punitive-damage award. But in a case in 1996, the court held for the first time that punitive-damage awards had to be proportional to the actual damage incurred by the plaintiff. The case involved a man who said he was deceived by BMW when it sold him a supposedly “new” car that was, in fact, used and had received a $300 touch-up job. The court, in a 5-4 opinion, overturned a $2 million punitive-damage award as “grossly excessive.” In 2003, the court clarified what it meant: a single-digit ratio between punitive damages and compensatory damages was likely to be acceptable.Last year, the business community watched with anticipation as Roberts and Alito revealed their views about punitive damages. The case involved the estate of a heavy smoker who sued Philip Morris for deceitfully distributing a “poisonous and addictive substance.” A jury had awarded the estate $821,000 in compensatory damages and $79.5 million in punitive damages — a ratio of about 100 to 1. In a 5-4 opinion written by Breyer, the court held that it was unconstitutional for a jury to use punitive damages to punish a company for its conduct toward similarly affected individuals who are not party to the lawsuit.This spring, the court will decide the Exxon Valdez punitive-damage case, which many consider the culmination of the business community’s decades-long campaign against punitive damages. In 1989, the Exxon Valdez tanker, whose captain had a history of alcoholism, ran into a reef and punctured the hull; 11 million gallons of oil leaked onto the coastline of Prince William Sound. A jury handed down a $5 billion punitive-damage award.After the verdict, Exxon began providing money for academic research to support its claim that the award for damages was excessive. It financed some of the country’s most prominent scholars on both sides of the political spectrum, including the Nobel laureate Daniel Kahneman and Cass Sunstein, a law professor at the University of Chicago. (Sunstein says he accepted only travel grants, not research support, from Exxon; and Kahneman stresses that the financing had no influence on the substance of his work.) In a 2002 book, “Punitive Damages: How Juries Decide,” Sunstein studied hundreds of mock-jury deliberations and concluded that jurors are unpredictable and often irrational in punitive-damage cases. Jury deliberations, he found, increase the unpredictability, as well as the dollar amount of the final awards. Sunstein concluded that a system of civil fines determined by experts, rather than punitive damages determined by juries, might be more sensible. When Exxon appealed the $5 billion verdict in 2006, it was reduced by an appellate court to $2.5 billion. The reduced verdict is once again being challenged as excessive. Walter Dellinger, the lawyer now arguing Exxon’s case before the Supreme Court, is no Republican activist. Like Sunstein, he is one of the most respected Democratic constitutional scholars, as well as a former acting solicitor general for President Clinton. Last month, in his argument before the court, Dellinger argued that because Exxon has already paid $3.4 billion in fines, cleanup costs and compensation connected with the Exxon Valdez spill, and because it didn’t act out of malice or greed in failing to monitor the alcoholic captain, additional punitive damages would serve no “public purpose.”During the argument, Breyer noted that the $2.5 billion punitive damage award represents a less than 10-to-1 ratio between punitive damages and compensatory damages, which is in the single-digit range that the Supreme Court has considered acceptable in the past. But Breyer also seemed concerned at other points that punitive-damage awards have not been routine in maritime cases like this one, and that the award might create “a new world for the shipping industry.” Alito, who owns Exxon Mobil stock, did not participate, and because a tie would affirm the $2.5 billion punitive-damage award, the plaintiffs who are opposing Exxon need only four votes to prevail. But whether Dellinger gets five votes, a significant triumph is already behind him: he persuaded the court to take the case in the first place.

VI. Ted Olson and the Chamber of Commerce aren’t only trying to persuade the Supreme Court to cut back on large punitive-damage awards; they’re also arguing that consumers injured by dangerous or defective medical devices and drugs in some cases shouldn’t be able to file product-liability suits at all. Because there is no national product-liability law that allows federal suits for personal injuries, consumers who are injured by, say, defective heart valves or artificial hips have to sue in state courts under state tort law. By asking the Supreme Court to prevent injured consumers from suing in state court, the business community, supported by the Bush administration, is trying to ensure that these consumers often have no legal remedy for their injuries. And the Supreme Court has been increasingly sympathetic to the business community’s arguments. In a Supreme Court case Olson argued in December, he stood before the justices and argued that the manufacturers of defective medical devices — like heart valves, breast implants and defibrillators — should be immune from personal-liability suits because the federal Food and Drug Administration had approved the devices before they were marketed and the manufacturers had complied with all federal requirements. The case involved Charles Riegel, who had an angioplasty in 1996 during which the catheter used to dilate his coronary artery burst. Riegel, who needed advanced life support and emergency bypass surgery, eventually sued the manufacturer of the catheter, Medtronic. The company is colloquially referred to in the business community as “the pre-emption company” because of its practice of arguing that the Food and Drug Administration’s “premarket approval” of its products pre-empts product-liability suits in state courts. The lawyer representing Riegel’s estate before the Supreme Court, Allison Zieve of Public Citizen, countered that Congress never intended to ban state product-liability suits when Senator Edward Kennedy sponsored a bill regulating medical devices in 1976. (Kennedy himself filed a brief in the case noting that he indeed intended no such thing.) “Lawyers think this is a close issue, but any time I talk to a nonlawyer about it, they’re shocked,” Zieve told me after the argument. “People think: of course, if somebody makes a defective product you can sue.”It’s one thing to argue that the federal government’s “premarket approval” of food, drugs and medical devices should pre-empt clearly inconsistent state laws and regulations. After all, if states imposed safety requirements that conflicted with the federal standard, the resulting regulatory confusion would make a national (and global) market impossible. But Olson’s claim that federal regulation of medical devices and drugs should also pre-empt product-liability suits under state tort law is one of the more creative and far-reaching legal arguments of the business groups that litigate before the Supreme Court.This type of argument arose out of the tobacco litigation of the 1980s and ’90s, which culminated in a $206 billion settlement paid by the top tobacco companies to a consortium of 46 state attorneys general in exchange for dropping tort suits against the companies. The tobacco litigation began modestly: in 1983, Rose Cipollone, a New Jersey woman dying of lung cancer, sued several of the country’s largest tobacco companies for their failure to give adequate warnings about the dangers of smoking. After spending tens of millions of dollars fighting the verdict, the companies decided to take their defense to the next level. They argued that because the federal government required cigarette companies to have warning labels, tobacco companies couldn’t be subject to tort suits in state courts. Jury verdicts, they argued, are no less a form of regulation than laws explicitly adopted by state legislatures.In a decision in 1992, the Supreme Court endorsed part of the companies’ argument. The decision unleashed a torrent of similar “pre-emption” claims by the manufacturers of dangerous drugs, defective medical devices and cars without air bags. And after the election of President Bush in 2000, the business community’s crusade was aggressively supported by the White House. At the same time that the White House was scaling back on federal health-and-safety enforcement, it insisted that consumers should not be able to sue federally regulated industries in state court. Bush appointed as the general counsel of the Food and Drug Administration a former drug- and tobacco-company lawyer named Daniel Troy. With Troy’s support, the F.D.A. reversed its position, held for 25 years, and argued for the first time that its premarket approval of medical devices should prevent injured consumers from bringing product-liability suits in state court.After her Supreme Court argument in the Medtronic case, Zieve told me she wasn’t sure what to expect. Until the arrival of Chief Justice Roberts, groups like Public Citizen had found that they had a better chance of winning pre-emption cases before the Supreme Court than in the lower courts. But during the first two years of the Roberts Court, the justices had decided two pre-emption cases in favor of the corporate defendants.The trend has continued. On Feb. 21, the Supreme Court handed Zieve a crushing defeat: an 8-1 opinion immunizing the makers of defective medical devices from product-liability suits. The lone dissent was written by Ruth Bader Ginsburg, who objected that Congress could not have intended such a “radical curtailment” of state personal-injury suits when it regulated medical devices in 1976. Ginsburg, who is devoted to liberal judicial restraint, has consistently opposed efforts to second-guess punitive-damage awards or expand federal pre-emption. I called Zieve soon after the Supreme Court issued its opinion, and she sounded shocked. “It’s really unfathomable to me,” she said. “I wasn’t sure that this was a business-friendly court, but now I’m finding it harder not to view it that way.” Zieve said that, as a result of the decision, “I think the industry will keep unsafe devices on the market longer and be slower to improve products.”In the eyes of advocates like Zieve and Public Citizen, the public is now caught in a Catch-22: at the very moment that agencies like the F.D.A. are being strongly reproved by critics — including the agency’s own internal science board — for being unwilling or unable to protect public health, the court is making it harder for people to receive compensation for the injuries that result. On rare occasions, the Roberts Court has held that the Bush administration’s deregulatory efforts circumvent the will of Congress — like the 5-4 decision last year holding that the Environmental Protection Agency acted capriciously when it adopted a rule that said it had no legal authority to regulate greenhouse gases. But by and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve told me. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.”

VII. The Supreme Court is unlikely to reconsider its pro-business outlook anytime soon. Nevertheless, there are several currents in American political life that run counter to the court, even if they may not be strong enough, or suitably directed, to reverse it. There are, for example, economic populists in both political parties — John Edwards Democrats and Mike Huckabee Republicans, to cite just two types — who express concern about growing economic inequality and corporate corruption, and blame unchecked corporate power for America’s escalating economic problems. These populists tend to be from the working and middle classes rather than the professional classes, and their numbers may be growing. In recent Pew surveys, 65 percent of Americans agreed that corporations make excessive profits — the highest number in 20 years. Moreover, about half the country now asserts that America is divided on economic lines into two groups — the “haves” and “have nots” — up from only 26 percent two decades ago. And the number of Americans who view themselves as “have nots” has doubled to 34 percent today from 17 percent in 1988. Responding to pressures from this demographic, a Democratic Congress — bolstered by states-rights conservatives — might well try to pass legislation to counteract the court’s recent decisions barring product-liability suits for defective medical devices.What about the executive branch? It seems unlikely that John McCain, if he were elected president, would push back against the court: he has already pledged to appoint “judges of the character and quality of Justices Roberts and Alito,” rather than justices more devoted to states rights, like Scalia and Thomas. As for Barack Obama and Hillary Clinton, both have sounded increasingly populist notes in an effort to attract union and blue-collar supporters, ratcheting up their attacks on corporate wealth and power, singling out the drug, oil and health-insurance industries and promising to renegotiate the North American Free Trade Agreement. But despite their rhetoric, it is not clear that either candidate would actually appoint justices any more populist than Bill Clinton’s nominees. “I would be stunned to find an anti-business appointee from either of them,” Cass Sunstein, who is a constitutional adviser to Obama, told me. “There’s not a strong interest on the part of Obama or Clinton in demonizing business, and you wouldn’t expect to see that in their Supreme Court nominees.”Still, the possibility does exist. If the economy continues to decline and blue-collar voters end up being crucial in the election, a Democratic president might appoint an economic populist to the Supreme Court as a kind of payback. Earlier this month, on the campaign trail in Ohio, Obama mentioned Earl Warren, who served as governor of California before becoming chief justice, as a model of the kind of justice he hoped to appoint. “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said. He praised Warren for understanding that segregation was wrong because of the stigma it attached to blacks, rather than because of the precise nature of its sociological impact. Appointing a former politician to the court would almost certainly introduce a more populist element: the Supreme Court that in 1954 decided Brown v. Board of Education included, in addition to a former governor, three former senators, a former Securities and Exchange Commission member and two former attorneys general. (By contrast, the Roberts court is composed of nine former judges.) Whatever happens in November, Robin Conrad says the Chamber of Commerce is prepared to lobby as hard as ever for the appointment of pro-business justices. “If we do have a Democrat president, and that president has opportunities to nominate to the court,” she said in our meeting as I glanced at her Hillary Clinton action figure, “we want to be able to express ourselves and work with that president.” Regardless of how many justices retire in the next presidential term, Conrad is confident that, having helped to transform the Supreme Court in less than 30 years, she and her colleagues can assure American business of a sympathetic hearing for decades to come.When I told Conrad that Ralph Nader told me that lawyers were leaving Public Citizen because they were tired of losing, she achieved a look of earnest concern. “I hope if they feel they’ve lost,” she said, “they lost for a good reason — not because they’ve been overpowered or muscled by the big, bad business community, but they’ve lost because reason won.”Conrad looked at me squarely, and then added, “I guess if Ralph Nader wants to say we did him in” — she paused to weigh her words — “so be it.”

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WASHINGTON (Reuters) - A surprising number of people — more than 60 percent — still suffer significant pain a year after a traumatic injury in a car crash or other cause, showing the need for better pain treatment, researchers said. In a study published on Monday in the journal Archives of Surgery, researchers tracked 3,047 patients ages 18 to 84 from 14 U.S. states who survived an acute traumatic injury.A year after the injury, 63 percent reported that they still experienced pain related to the injury, with most having pain in more than one region of the body.On average, the patients assessed their pain at 5.5 on a 10-point scale — a level at which they would be expected to have moderate to severe interference with daily activities.“I was surprised that the pain was as common and as severe as they reported it to be,” said Dr. Frederick Rivara of the University of Washington in Seattle, who led the study.“The implications are that we need to do a much better job of identifying pain in these patients, treating it adequately and treating it early,” Rivara added in a telephone interview.The people in the study sustained head injuries, broken limbs, chest or abdominal trauma and other injuries in motor vehicle crashes, falls and other circumstances.Pain was most commonly seen in joints and limbs (44 percent of patients), the back (26 percent), the head (12 percent) and neck (7 percent).Rivara noted that people who experience chronic pain are at higher risk for depression and for being unable to work or function normally.“The focus up until now in a lot of our care is on whether you live or die, which is obviously important. But we can’t just stop there. And I think we need to look at what are the things we can do to improve people’s lives after serious illness or injury,” Rivara added.The American Pain Foundation, a Baltimore-based advocacy group, said the financial cost exacted by chronic pain in the United States — including health-care expenses, lost income and lost productivity — is estimated at $100 billion a year.The group said back pain is the leading cause of disability in Americans under 45 years old.“There are hundreds of thousands, if not millions, of people who have had traumatic injury when the focus has been the injury and the destruction of tissue and not the pain. Pain has been a secondary consideration (during treatment),” said Will Rowe, American Pain Foundation chief executive officer.“In many instances, the injury heals and the pain persists. That’s the story that needs to be told,” Rowe said. Call Doehrman & Chamberlain for a review of your rights, 1-800-269-3443

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WASHINGTON, D.C. - Whether it is an apartment, duplex or single-family residence, the home is a place that is supposed to give families a feeling of safety and security. For many Americans families however, an injury or death of a loved one can turn this place of happiness into one of tragedy.

Each year, 33.1 million people are injured by consumer products in the home. Some hazards are from products the Agency has warned about for years; others come from new products and technologies. To keep Americans informed of dangers, the CPSC has identified the Top Five Hidden Home Hazards – associated with products that people may be using everyday, but are unaware of the dangers that they can cause. These home hazards are often unseen or unnoticed by consumers.

“The home is where people feel comfortable and secure, but constant awareness is the key to keeping families safe,” said Acting Chairman Nancy Nord. “CPSC is aiming to increase awareness of the hidden hazards around the home in order to help consumers protect against these dangers.”

With no or very little investment, incidents and injuries from these dangers are preventable. Simply by being aware of these Top Five Hidden Home Hazards, many lives can be spared and life-altering injuries avoided:

#1- Magnets

Since 2005:

1 Death, 86 Injuries;

8 million magnetic toys recalled.

Today’s rare-earth magnets can be very small and powerful making them popular in toys, building sets, and jewelry. As the number of products with magnets has increased, so has the number of serious injuries to children. In several hundred incidents, magnets have fallen out of various toys and been swallowed by children. Small intact pieces of building sets that contain magnets have also been swallowed by children. If two or more magnets, or a magnet and another metal object are swallowed separately, they can attract to one another through intestinal walls and get trapped in place. The injury is hard to diagnose. Parents and physicians may think that the materials will pass through the child without consequence, but magnets can attract in the body and twist or pinch the intestines, causing holes, blockages, infection, and death, if not treated properly and promptly.

Watch carefully for loose magnets and magnetic pieces and keep away from younger children (less than 6). If you have a recalled product with magnets, stop using it, call the company today, and ask for the remedy.

#2- Recalled Products

Each year there about 400 recalls.

CPSC is very effective at getting dangerous products off store shelves, such as recalled toys, clothing, children’s jewelry, tools, appliances, electronics and electrical products. But once a product gets into the home, the consumer has to be on the lookout. Consumers need to be aware of the latest safety recalls to keep dangerous recalled products away from family members.

Get dangerous products out of the home. Join CPSC’s “Drive To One Million” campaign and sign up for free e-mail notifications at https://www.cpsc.gov/cpsclist.aspx - an e-mail from CPSC is not spam – it could save a life.

#3-Tip-overs

Average of 22 deaths per year;

31 in 2006 and an estimated 3,000 injuries.

Furniture, TVs and ranges can tip over and crush young children. Deaths and injuries occur when children climb onto, fall against or pull themselves up on television stands, shelves, bookcases, dressers, desks, and chests. TVs placed on top of furniture can tip over causing head trauma and other injuries. Items left on top of the TV, furniture, and countertops, such as toys, remote controls and treats might tempt kids to climb.

Verify that furniture is stable on its own. For added security, anchor to the floor or attach to a wall. Free standing ranges and stoves should be installed with anti-tip brackets.

#4- Windows & Coverings

Average of 12 deaths annually from window cords;

Average of 9 deaths and an estimated 3,700 injuries to children annually from window falls.

Children can strangle on window drapery and blind cords that can form a loop. Parents should use cordless blinds or keep cords and chains permanently out of the reach of children. Consumers should cut looped cords and install a safety tassel at the end of each pull cord or use a tie-down device, and install inner cord stays to prevent strangulation. Never place a child’s crib or playpen within reach of a window blind.

The dangers of windows don’t end with window coverings and pull cords. Kids love to play around windows. Unfortunately, kids can be injured or die when they fall out of windows. Do not rely on window screens. Window screens are designed to keep bugs out, not to keep kids in.

Safeguard your windows: repair pull cords ending in loops and install window guards or stops today.

#5- Pool & Spa Drains

15 injuries, 2 fatalities from 2002-2004.

The suction from a pool drain can be so powerful that it can hold an adult under water, but most incidents involve children. The body can become sealed against the drain or hair can be pulled in and tangled. Missing or broken drain covers are a major reason many entrapment incidents occur. Pool and spa owners can consider installing a Safety Vacuum Release System (SVRS), which detects when a drain is blocked and automatically shuts off the pool pump or interrupts the water circulation to prevent an entrapment.

Every time you use a pool or spa, inspect it for entrapment hazards. Check to make sure appropriate drain covers are in place and undamaged.

To learn more about these and other home hazards, and to sign up for recall information, visit our Web site at http://www.cpsc.gov.

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Send the link for this page to a friend! The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of serious injury or death from more than 15,000 types of consumer products under the agency’s jurisdiction. Deaths, injuries and property damage from consumer product incidents cost the nation more than $800 billion annually. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard. The CPSC’s work to ensure the safety of consumer products - such as toys, cribs, power tools, cigarette lighters, and household chemicals - contributed significantly to the decline in the rate of deaths and injuries associated with consumer products over the past 30 years.

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Statement of Joan Claybrook, President, Public Citizen*

The study released today by the Insurance Institute for Highway Safety adds to the mountain of evidence that the federal government is not doing enough to protect the public from deadly rollover crashes.

The Institute’s study exposes the junk science that the auto industry has been circulating for years. The automakers have tried to pass off the laughable claim that roof strength has zero relationship to the risks vehicle occupants face in rollover crashes. This study is the last nail in the coffin for that bogus argument.

Additionally, the Institute’s study - which closely follows the methodology used by the National Highway Traffic Safety Administration (NHTSA) in its performance tests - underscores what safety experts and consumer advocates have been saying for years: NHTSA’s proposed revision to the 40-year-old roof strength standard is insufficient. Congress instructed NHTSA in the 2005 highways bill to “upgrade” the decades-old standard. NHTSA has chosen to fiddle around at the margins instead of overhauling its outdated safety standard to reflect the best protection possible for the public. The Institute’s study echoes our urgent warnings to the agency that its proposed increase of the roof strength standard from 1.5 to 2.5 times gross vehicle weight will not meet the public’s need for safety.

Rollover crashes kill more than 10,000 people every year. It is long past time for NHTSA to listen to the evidence and give the public the upgraded safety standard it so desperately needs.

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The Centers for Disease Control issued the following statement about injuries and illness related to cruise ship travel. It is important to remember that if you are injured or suffered an otherwise preventable illness, it is important to seek the opinion of a lawyer immediately. Most claims against a cruise ship are barred if not presented within a contractual statute of limitations, typically, one year. This is most likely dictated by the cruise ship ticket. Call Doehrman & Chamberlain for a review of your rights, 1-800-269-3443:

In 2004, 10.8 million people took North American cruise vacations, and cruising is expected to continue to gain popularity, with an estimated 20.7 million cruise travelers in 2010 (1). Since 1980, the North American cruise industry, which makes up the majority of the global cruise market, has experienced an average annual passenger growth rate of 8.1%. Cruise capacity also increased by 450% over the same period, with 225,714 beds available in 2004. U.S. ports handle about 75% of global embarkations, and 77% of the passengers are U.S. residents (2). The North American cruise industry has had overall passenger occupancies at full capacity in recent years, with top destinations being the Caribbean, the Mediterranean, Alaska, Europe, and the west coast of Mexico. Cruise itineraries are ever expanding to include continents and areas not easily accessible by other means of travel, permitting travelers to visit multiple global destinations in the comfort typically offered by cruise ships (1).

Cruise ships and all ocean-going vessels engaged in international commerce fly flags of registry, which are required for operation in international waters (3). Cruise lines often choose to register either in their country of ownership or ship production or in countries that provide open maritime registration, or “Flags of Convenience.” Ships are most often registered in the United Kingdom, Liberia, Panama, Norway, the Netherlands, the Bahamas, and the United States. Flag registry states provide comprehensive maritime expertise and administrative services, require annual safety inspections before issuance of a passenger vessel certificate, and monitor vessel compliance with international maritime laws, as well as flag state standards. The World Health Organization’s International Health Regulations stipulate health and sanitation requirements for international conveyances. In the United States, the U.S. Coast Guard enforces maritime safety requirements, and CDC has regulatory responsibilities for sanitation and public health on cruise ships bound for a U.S. port from a foreign port (3).

Today’s large cruise ships can serve as a gathering place for the global community, where passengers and crew from around the world bring together a diversity of cultures, as well as medical and immunization backgrounds and health risk behaviors (4,5). Cruise voyages can last from several hours (e.g., gambling cruises) to several months (e.g., around-the-world and semester-at-sea cruises); however, the average duration of cruise travel is about 7 days (1). This time period permits ample opportunity for passengers and crew to come into repeated and prolonged contact through shared activities, such as games and dining, and through resources such as food and water, resulting in opportunities for exposure and transmission of communicable diseases (4,5). In addition, as cruise ships make multiple port stops, where differences may exist in sanitation standards and disease exposure risks, embarking passengers and crew can import and spread communicable diseases onboard. Detecting and preventing infectious diseases acquired during cruises are important not only to protect the health of cruise travelers but to avoid global dissemination of diseases in home communities through disembarking passengers and crew members (5).

CDC’s Vessel Sanitation Program (VSP) and Quarantine Stations

In 1975, in response to several large gastrointestinal disease outbreaks on cruise ships, CDC established the VSP, a joint cooperative program with the cruise industry, to achieve a high level of sanitation and minimize the risk of gastrointestinal (GI) disease on cruise ships (6). The VSP encourages the cruise industry to establish and maintain a comprehensive sanitation program, including surveillance for acute gastroenteritis (AGE). The VSP staff conducts biannual, unannounced sanitation inspections on U.S.-bound cruise ships with international itineraries carrying 13 or more passengers. The VSP also engages in the design and construction of new ships, as well as retrofitting older ones to enhance facilities and provisions that promote shipboard sanitation and public health (6).

The VSP shipboard sanitation inspections cover the following areas of public health interest: 1) water supply storage, distribution, disinfection and protection; 2) spas and pools disinfection and filtration; 3) food handling, including storage, preparation, and service; 4) potential for contamination of food, water and ice; 5) personal hygiene and sanitation practices of crew; 6) general cleanliness and condition of the ship, and 7) ship training programs in environmental and public health practices. An inspection score of 86 or higher (out of 100) indicates an acceptable level of sanitation. In general, the higher the score, the higher the level of sanitation, but this score does not reflect the risk of acquiring gastrointestinal disease. The VSP could recommend or require that a cruise ship not sail if sanitation deficiencies could pose a public health threat. The VSP posts most recent sanitation scores and reports for specific cruise ships on its website: http://www.cdc.gov/nceh/vsp (6).

U.S. Federal Quarantine Regulations require that, 24 hours before arrival at a U.S port, vessels notify public health authorities of onboard incidents of death, diarrhea (defined as at least 3 stools in a 24-hour period), and certain febrile syndromes of public health significance (6,7). The VSP receives reports of AGE and may respond with an epidemiologic and environmental investigation if at least 3% of passengers and/or crew members seek medical attention for AGE, or if an unusual GI illness occurs (6). Surveillance and response for reports of onboard deaths and febrile syndromes of public health concern are conducted by CDC Quarantine Stations, located at major U.S. ports of entry and land border crossings and administered by the Division of Global Migration and Quarantine in Atlanta (7).

Cruise Ship Medical Facilities

In 2000, the Cruise Ship and Maritime Medicine Section of the American College of Emergency Physicians (ACEP) published ACEP Health Care Guidelines on Cruise Ship Medical Facilities, a consensus report on appropriate facilities and staffing able to provide basic medical and emergency services aboard cruise ships, within the recognized limitations of the offshore environment (8). These guidelines include provisions for medical facility design on cruise ships, including guidelines for an isolation room to manage communicable diseases, diagnostic and emergency medical equipment, formulary, staff number and qualifications, and a health, hygiene and safety program for medical personnel (8). Large cruise lines that operate in the United States or are members of the International Council for Cruise Lines (ICCL) meet or exceed the ACEP guideline standards. Medical facilities on ICCL member vessels can be equated to community urgent care centers, with the ability to perform basic diagnostics such as blood chemistries, complete blood counts, urinalyses, chest x-rays, and EKGs (3,9). An estimated 95% of illnesses seen in cruise ship medical facilities can be treated onboard; however, passengers with serious problems such as myocardial infarction or cerebrovascular accidents need to be transferred to shoreside hospitals after stabilization (10). Cruise travelers should note that ACEP guidelines for large cruise lines may not be followed by smaller ships or those run by independent operators; on such ships there may be no medical provisions onboard. Cruise ship travelers with chronic diseases or those who may require comprehensive medical care during travel should consult with their health-care providers and notify the cruise line of special needs before travel (9).

Transmission of Illness on Cruise Ships

Heightened disease surveillance efforts by cruise lines in cooperation with public health authorities and awareness among cruise ship travelers have led to the detection of illnesses of potential public health significance that might otherwise have gone unnoticed. Communicable diseases occurring onboard cruise ships reflect similar onshore events, but transmission risk may be enhanced by the crowded, semi-enclosed cruise ship environment, with increased opportunities for interpersonal interactions (4,5,11). In addition, an estimated one-third of cruise travelers are senior citizens who, along with travelers with underlying chronic health problems, are at increased risk of morbidity from infectious agents such as Influenza viruses and Legionella (11-13). A study of cruise ship medical logs showed that over half of infirmary visits are made by passengers over the age of 65; the most common diagnosis is respiratory tract infection, followed by injuries, nervous system (e.g., seasickness) (see Chapter 6) and GI illness (10). In recent years, outbreaks of norovirus and influenza (see Chapter 4) have posed particular public health challenges (11-15). Outbreaks of influenza A and influenza B can occur among cruise ship passengers and crew year-round worldwide. Previous outbreaks have resulted due to importation of influenza from a community in which it was circulating, with subsequent sustained person-to-person spread on cruise ships (11,12). The low infective dose of norovirus, combined with its easy person-to-person transmissibility and ability to survive routine cleaning procedures, has led to large, consecutive cruise outbreaks (14). Other causes of GI illness clusters on cruise ships have included contaminated food or water due to Salmonella spp., enterotoxigenic Escherichia coli, Shigella spp., Vibrio spp., Staphylococcus aureus, Clostridium perfringens, Cyclospora sp., and Trichinella spiralis (5). The estimated likelihood of contracting gastroenteritis on an average 7-day cruise is less than 1%, and GI illness accounts for fewer than 10% of passenger infirmary visits (15).

Legionnaires’ disease has led to pneumonia outbreaks on multiple, consecutive cruises. Passengers typically develop symptoms only upon completion of travel, resulting in delayed detection and continuous transmission (13). Additionally, since cruise travel typically involves stays in hotels as well as multiple environmental exposures during port stops, it is usually difficult to link a cruise ship with infection; however, contamination of ships’ whirlpool spas and potable water supply systems have most commonly been implicated sources (5,13). Clusters of rubella and varicella have been investigated on cruises originating in the U.S. and have highlighted the potential of global dissemination of vaccine-preventable diseases through cruise travel. During one investigation, 11% of the crew was shown to be infected with or susceptible to rubella, and 33% of passengers onboard were women of childbearing age, a high-risk group for congenital rubella syndrome if infected during pregnancy (5). Isolated cases of measles, hepatitis A, typhoid, tuberculosis, meningococcal meningitis have been reported and investigated (unpublished data, CDC Miami Quarantine Station).

Travelers who suspect that they have become ill with a communicable disease during cruise travel should contact the VSP (for GI illness); for other illnesses contact the nearest CDC Quarantine Stations http://www.cdc.gov/ncidod/dq/quarantine_stations.htm or call CDC/DGMQ at 866-694-4867 (6,7).

Injury and Other Health Considerations for Cruise Ship Travel

Injuries are one of the most common reasons for passengers to seek medical care on cruise ships, accounting for about 18% of passenger infirmary visits (10). As a result of climatic variations, environmental exposure to pollutants, changes in diet and physical activity levels and an increased level of stress due to being in an unfamiliar environment, the cruise ship traveler may be subject to exacerbation of existing chronic health conditions (9). A prospective cruise ship traveler with health conditions that might increase his or her potential for injury or illness should consult his or her health-care provider before embarking on a cruise (see Chapter 9). Special cruises are now available for travelers who have certain medical conditions, including those on dialysis (9).

Preventive Health for Cruise Ship Travelers

Due to multiple port visits and potential exposures, cruise ship travelers may be uncertain about which prevention medications, immunizations and behaviors are appropriate for them and for their itineraries (16). In general, travelers should inform the cruise line of special medical needs, such as wheelchair access, oxygen tank, dialysis, etc, in advance of travel (9). Adequate medical insurance coverage for receiving health care overseas and medical evacuation should be ensured (9). Four to six weeks before travel, cruise travelers should consult a health-care provider who can give guidance on appropriate chemoprophylaxis, immunizations, and health behaviors based on a complete review of the health status of the traveler, duration of travel, countries to be visited, and shoreside activities (16,17). Clinicians should provide travelers with 1) destination-specific recommended and required vaccines (e.g., yellow fever), as well as prevention medication (e.g. malaria chemoprophylaxis) if needed; 2) routinely recommended age- and medical condition-specific immunizations, such as MMR and influenza vaccines, if not up to-date; 3) appropriate options for motion sickness based on the individual’s medical history and current medications (see Chapter 6) and 4) a written summary of their medical history, including pertinent diagnostic data such as EKG and chest x-ray, to facilitate overseas medical care, should it be required (9,16,17). Among cruise ship passengers and crew members, risk of exposure to infectious diseases is difficult to quantify because of the broad spectrum of cruise ship experiences and limited data. Travelers should be given guidance on good health habits and disease prevention practices during travel including adequate 1) hand hygiene (i.e., washing hands for at least 20 seconds with soap and water) (http://www.cdc.gov/nceh/vsp/pub/CruisingTips/cruisingtips.htm) or if soap and water are unavailable, using an alcohol-based product containing more than 60% alcohol (18) 2) respiratory hygiene such as using tissue to cover coughs and sneezes (http://www.cdc.gov/flu/protect/covercough.htm); 3) food and water intake precautions (i.e., eating foods that are thoroughly cooked and of appropriate temperate) (see Chapter 2); and 4) mosquito prevention (i.e., using DEET-containing repellents, bed nets, and clothing that provides more coverage over exposed areas of the body (see Chapter 2) (17). Health-care providers can contribute to healthy environments on cruise ships by questioning ill returned travelers (see Chapter 2) about recent cruise vacations and promptly reporting any suspected communicable disease to public health authorities (16).

From the Wall Street Journal, concerning a new attempt by insurance carriers to defeat legitimate claims by injured consumers. Protect your legal rights and contact Doehrman & Chamberlain, 1-800-269-3443.

A test designed to expose fakers is roiling the field of personal-injury law, distressing plaintiffs and strengthening the hand of employers and insurers.

• The Focus: A test called the Fake Bad Scale is meant to spot litigants who may be feigning their injuries.

• Gaining Credibility: Use in personal-injury suits has grown since test became part of respected Minnesota Multiphasic Personality Inventory.

• Controversy: Some psychologists and plaintiffs’ lawyers protest that test identifies too many real victims as possible fakers.

Proponents hail the true-or-false test as a valid way to identify people feigning pain, psychological symptoms or other ills to collect a payout. In hundreds of cases, expert witnesses have testified that the test provided evidence that plaintiffs were lying about their injuries, just as suggested by the test’s colorful name: the Fake Bad Scale.

Use of the scale surged last year after publishers of one of the world’s most venerable personality tests, the Minnesota Multiphasic Personality Inventory, endorsed the Fake Bad Scale and made it an official subset of the MMPI. According to a survey by St. Louis University, the Fake Bad Scale has been used by 75% of neuropsychologists, who regularly appear in court as expert witnesses.

ON THE TEST

There seems to be a lump in my throat much of the time.
Once a week or oftener, I suddenly feel hot all over, for no real reason.
I have a great deal of stomach trouble.

But now some psychologists say the test is branding as liars too many people who have genuine symptoms. Some say it discriminates against women, too. In May, an American Psychological Association panel said there appeared to be a lack of good research supporting the test.

In two Florida court cases last year, state judges, before allowing the test to be cited, held special hearings on whether it was valid enough to be used as courtroom evidence. Both judges ended up barring it.

“Virtually everyone is a malingerer according to this scale,” says a leading critic, James Butcher, a retired University of Minnesota psychologist who has published research faulting the Fake Bad Scale. “This is great for insurance companies, but not great for people.”

The test asks a person to answer true or false to 43 statements, such as “My sleep is fitful and disturbed” and “I have nightmares every few nights.” Someone who suffers from, say, post-traumatic stress disorder might legitimately answer “true” to these questions. But doing so would earn the test-taker two points toward the total of 23 or so that marks a person as a possible malingerer.

Other test statements are “I have very few headaches” and “I have few or no pains.” These are false, someone who has chronic headaches would say. Again, those replies would incur two more points toward a possible assessment as a malingerer.

About a third of the questions relate to physical symptoms; there are questions about stress, sleep disturbance, and low energy. There is also a batch of questions related to denial of bad behavior. For instance, those who answer false to “I do not always tell the truth” get a point toward malingering.

Measuring Process

Paul Lees-Haley, the psychologist who created the test, say that while individual items “can be made to seem like evidence for a flawed” measuring process, what’s important is the total score. He says the scale has “been tested empirically and shown to be effective.”

Dr. Lees-Haley says criticism is being orchestrated by plaintiffs’ lawyers. One, Dorothy Clay Sims in Ocala, Fla., has written guides for other plaintiffs’ lawyers on how to challenge the Fake Bad test. She is leading an effort to reverse the decision that incorporated it into the Minnesota Multiphasic Personality Inventory, which is used in diagnosing and treating patients at mental-health facilities and in screening people for sensitive jobs like law enforcement.

Dr. Lees-Haley himself once testified frequently for plaintiffs in personal-injury lawsuits, but about 18 years ago he began to work mainly for the defense side. He says he devised his test because he saw so many claimants he believed to be faking mental or other distress, and existing tests didn’t spot them.

Working for litigants is Dr. Lees-Haley’s main source of income. He has said in court cases that 95% of this work is on behalf of the defense. He charges $3,500 to evaluate a claimant and $600 an hour for depositions and court appearances, his fee schedule says.

Dr. Lees-Haley didn’t dream up the 43 true-or-false statements in the Fake Bad Scale. He picked them from among the more than 500 true-or-false statements in the elaborate, decades-old MMPI.

He tested responses to the 43 questions on three groups. One was personal-injury litigants he said were malingering. A second group was people he asked to answer as if they were trying to fake emotional distress resulting from a car accident, toxic exposure or employment. A third group consisted of litigants he said had actually been injured.

The known fakers averaged a score of 27.6 on the Fake Bad Scale; those who had been instructed to try to fake emotional distress averaged 25; and the truly injured litigants averaged only 15.7, Dr. Lees-Haley wrote in a research report.

He also compared the scores with those of two large groups who had taken the MMPI; both averaged below 20.

Dr. Lees-Haley concluded that his test “appears to be a promising procedure” for detecting malingerers, and posited that anyone scoring over 20 tended toward fakery. He paid to have the results published in a small Montana-based medical journal, Psychological Reports, in 1991. Use of his Fake Bad Scale in litigation slowly grew.

It recently figured in the case of Steven Thompson, a onetime truck driver in Iraq for the KBR unit of Halliburton Inc. He said he hadn’t been able to hold a job since returning to the U.S. in 2004. Two doctors concluded Mr. Thompson had “chronic” and “fairly severe” post-traumatic stress disorder. He filed a disability claim that was denied by the insurer of Halliburton’s since-sold KBR unit.

Mr. Thompson appealed to the U.S. Labor Department, which has jurisdiction in such cases. He testified that memories of attacks on his convoys, seeing dead bodies and smelling burning flesh led to nightmares and sleeping problems that left him too irritable and difficult to work with to hold a job.

A psychiatrist hired by the defense, John D. Griffith of Houston, concluded Mr. Thompson was exaggerating his symptoms, and cited his score of 32 on the Fake Bad Scale. A Labor Department administrative-law judge denied Mr. Thompson’s claim, citing the test results along with inconsistencies in his testimony. Mr. Thompson is appealing.

Dr. Griffith won’t discuss the case but says the Fake Bad Scale is helpful in confirming fakers, who he estimates make up 40% of personal-injury plaintiffs.

In seven prior cases where Dr. Griffith worked for KBR or its insurer, he found five of the claimants to be malingering, court records show. Asked about the high percentage of Iraq truck drivers he found to be faking, he said: “When you come back to the States, you suddenly discover if you are sick you can make more money than if you were working.”

Cutoff Score

Dr. Butcher and some other researchers published a report critical of the Fake Bad Scale in 2003. They looked at more than 20,000 people, including several thousand psychiatric inpatients, who had taken the MMPI and calculated their Fake Bad Scale scores by checking their replies to the scale’s 43 questions.

More than 45% of psychiatric inpatients had Fake Bad Scale scores of 20 or more, meaning they were possible fakers, under Dr. Lees-Haley’s original cutoff score. Using a higher cutoff score, 24, the researchers still found that 23% of people were flagged as possible malingerers. In every subgroup, women had much higher scores than men.

The authors argued it was unlikely that so many psychiatric inpatients could or would have fooled doctors into diagnosing and admitting them to hospitals. It concluded that the Fake Bad Scale generated an “unacceptably high” rate of false verdicts of malingering, and also that it was biased against women.

Says Dr. Lees-Haley: “One of Dr. Butcher’s primary strategies for criticizing the FBS is to apply it to groups for which it was never intended, and then complain that it isn’t appropriate. Of course not. The FBS was designed for personal-injury claimants.”

In 2006, the publishers of the Minnesota Multiphasic Personality Inventory took a look at the Fake Bad Scale. Those who take the MMPI receive scores on various categories, such as paranoia, depression and social introversion. The question was whether to make the Fake Bad Scale one of these scored categories as well.

The University of Minnesota Press convened a panel of eight experts and pointed to two published reports for them to consider. One was a book chapter partly written by Dr. Lees-Haley himself. The other report was a review of existing research, concluding that the “preponderance of the current literature” supports the use of the test in litigation.

The review of existing research ended up looking at 19 studies, at least 10 of which had been done by Dr. Lees-Haley or other psychologists who do work for insurance companies. The review had excluded 21 other studies from consideration, including the negative analysis by Dr. Butcher’s team.

Dr. Butcher, a member of the advisory panel, opposed adding scores of the Fake Bad Scale to the results that are reported when a person takes the Minnesota Multiphasic Personality Inventory. Six of the eight panelists approved, although they differed on how the test should be used and what cutoff scores were appropriate. The University of Minnesota Press then did make the Fake Bad Scale a subset of the MMPI.

A few months later, the American Psychological Association’s committee on disabilities protested to the publisher that it had acted prematurely. The APA committee later said it hadn’t evaluated the test itself, but noted that the test was controversial and said: “Any test that over predicts malingering in persons with disabilities may result in their being denied necessary and due compensation, benefits or treatment.” The committee asked the MMPI publisher to have the Fake Bad Scale reviewed by a group at the University of Nebraska that specializes in evaluating psychological tests.

The University of Minnesota Press didn’t respond to a call. But in a letter to Ms. Sims, the Florida plaintiffs’ lawyer, a lawyer for the university said it “recognizes that the FBS is the subject of significant debate in the academic and professional community…. The University believes that the process leading up to the FBS’ release was sound.”

Courtroom Test

The experts’ disagreement spilled over into the courtroom in a case brought against a Florida gasoline carrier, Strawberry Petroleum Inc. Lloyd Davidson was sitting at a stoplight in May 2004 when his pickup was rear-ended by one of the gasoline company’s loaded tanker trucks, sending the pickup crashing into another truck ahead of him. His lawsuit said his head shattered the rear window and he ended up with diminished mental capacity and symptoms of depression and inattention.

A psychologist hired by the defense said in a deposition there was reason to believe Mr. Davidson was faking. The witness cited his “very high” score of 31 on the Fake Bad Scale.

Before the expert could testify at the trial, held in Hillsborough County Circuit Court, the plaintiffs moved for a hearing on the scientific validity of the Fake Bad Scale. Judge Sam Pendino ruled in June that “there is a genuine controversy surrounding use of this test” and “no hard medical science to support the use of this scale to predict truthfulness.” He said that drawing conclusions from a test that gives points for malingering when a plaintiff gives honest answers to questions based on actual injuries “has no place in this courtroom.”

In January, a jury determined that Mr. Davidson had suffered a permanent injury from the crash and awarded him $1.4 million from the gasoline carrier.

1. Surgery on the wrong body part.

2. Surgery on the wrong patient.

3. Wrong surgical procedure performed on a patient.

4. Object left in patient after surgery.

5. Death of patient who had been generally healthy during or immediately after surgery for a localized problem.

6. Patient death or serious disability associated with the use of contaminated drugs, devices or biologics.

7. Patient death or serious disability associated with the misuse or malfunction of a device.

8. Patient death or serious disability associated with intravascular air embolism.

9. Infant discharged to wrong person.

10. Patient death or serious disability associated with patient disappearing for more than four hours.

11. Patient suicide or attempted suicide resulting in serious disability.

12. Patient death or serious disability associated with a medication error.

13. Patient death or serious disability associated with transfusion of blood or blood product of the wrong type.

14. Maternal death or serious disability associated with labor or delivery in a low-risk pregnancy.

15. Patient death or serious disability associated with the onset of hypoglycemia, a drop in blood sugar.

16. Death or serious disability associated with failure to identify and treat hyperbilirubinemia, a blood abnormality, in newborns.

17. Severe pressure ulcers acquired in the hospital.

18. Patient death or serious disability due to spinal manipulative therapy.

19. Patient death or serious disability associated with an electric shock.

20. Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances.

21. Patient death or serious disability associated with a burn in the hospital.

22. Patient death associated with a fall suffered in the hospital.

23. Patient death or serious disability associated with the use of restraints or bedrails.

24. Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist or other licensed healthcare provider.