If unchecked, social inflation, driven by the myriad factors discussed in this study, will become a self-perpetuating phenomenon that sends improper signals regarding the value of damages to jurors, judges and defendants. This will lead to higher insurance premiums, financial strain on insurers, depletion of municipal resources and disincentives for businesses to take risks. This hidden “tort tax” benefits no one except plaintiff attorneys and their clients who engage in practices that lead to social inflation.
There are two broad responses that need to be pursued to combat the perpetuation of social inflationary pressures. One is to influence the development of public policy at the state and federal levels to reveal and control excesses. The second is for insurers and defense counsel to adopt and deploy more aggressive strategies that push back and formally object to tactics violating existing norms of courtroom behavior.
For context: a recent study by Pfizer, the pharma company backing the drug, found Paxlovid decreased hospitalizations and deaths from COVID by a factor of ten, with no detectable side effects. It was so good that Pfizer, “in consultation with” the FDA, stopped the trial early because it would be unethical to continue denying Paxlovid to the control group. And on November 16, Pfizer officially submitted an approval request to the FDA, which the FDA is still considering.
As many people including Zvi, Alex, and Kelsey have noted, it’s pretty weird that the FDA agrees Paxlovid is so great that it’s unethical to study it further because it would be unconscionable to design a study with a no-Paxlovid control group – but also, the FDA has not approved Paxlovid, it remains illegal, and nobody is allowed to use it.
One would hope this is because the FDA plans to approve Paxlovid immediately. But the prediction market expects it to take six weeks – during which time we expect about 50,000 more Americans to die of COVID.
Perhaps there’s not enough evidence for the FDA to be sure Paxlovid works yet? But then why did they agree to stop the trial that was gathering the evidence? Or perhaps there’s enough evidence, but it takes a long time to process it? But then how come the prediction markets are already 90% sure what decision they’ll make?
Colleges face an increasingly complex and unpredictable array of challenges — abuse, harassment, assault, police misconduct, accidents, health and environmental hazards, fiduciary wrongdoing, the pandemic — that are making it more difficult to calculate risk and insure against it.
That’s a big part of why annual insurance premiums have gone up by double digits in recent years. John McLaughlin, senior managing director of the higher-education practice at Gallagher, an insurance brokerage and risk-management and consulting firm, says those increases range between an average of 10 and 35 percent across an institution’s insurance portfolio.
But what’s striking is that just behind enrollment on colleges’ list of worries are two areas that are not directly related to Covid: data security and Title IX. That’s according to an annual survey by United Educators, which provides liability insurance and risk-management services for its member colleges and schools. The survey was conducted from May 2019 through September 2020, as the coronavirus crisis unfolded, and 480 United Educators member institutions responded.
The volcano on the Caribbean Island of St Vincent has erupted. Cruise liners and Ferries are rushing to the scene to evacuate people caught by the eruption – but people are not allowed to board the cruise liners until they receive a Covid vaccination.
In normal circumstances people are just evacuated from a deadly disaster zones, nobody refuses anyone because they might be sick. Sick people are given medical attention if required.
But because the world has become obsessed with a disease which kills up to 1% of victims, there is a real possibility that people fleeing a natural disaster will be told they have to stay and die, unless they receive an experimental and potentially life threatening medication.
As I said, not the rescuers fault – they are the meat in the sandwich. If they don’t insist on vaccination, their reward for compassion and heroism could be to be stuck in the ocean, nobody willing to take the evacuated islanders.
Younger, populist, anti-corporate juries are more prone to make larger awards than baby boomer jury pools. Plaintiff attorneys making good use of the “reptile theory” to provoke jurors to punish defendants painted as dangerous to society have led to staggeringly large verdicts. The combined impact of these trends has led to more and larger lawsuits, as well as year-over-year increases in “nuclear verdicts” — verdicts in excess of $10 million.
Some elements of the COVID-19 litigation torrent fit squarely in Buffet’s meaning of social inflation: expansion of what insurance policies cover. To be sure, the plurality of the 10,000 coronavirus suits filed involve insurance coverage litigation, with plaintiffs seeking coverage for business losses in policies where insurers maintain coverage does not exist.
Democratic lawmakers have called on U.S. insurers including American International Group Inc., Berkshire Hathaway, Chubb Ltd., Liberty Mutual Insurance Co., MetLife Inc. and Travelers Cos. Inc. to explain how their fossil fuel underwriting policies align with their commitments to sustainability.
In a letter dated March 24, Sen. Sheldon Whitehouse, D-Rhode Island, and Senators Jeffrey A. Merkley, D-Oregon, Elizabeth Warren, D-Massachusetts, and Chris Van Hollen, D-Maryland, request information on each insurer’s fossil fuel underwriting and investment policies.
“An increasing number of your competitors have stopped underwriting coal and other fossil fuel projects and/or restricted their investments in coal and certain dirty and environmentally damaging oil and gas projects such as tar sands,” the letter said.
The probe follows a Daily Poster investigative series detailing how one of Cuomo’s biggest donors, the Greater New York Hospital Association (GNYHA) — a lobby group that represents hospital systems and nursing home operators — said it “drafted and aggressively advocated for” the corporate immunity provision. Cuomo’s administration quietly inserted the measure into his state’s budget as thousands lay dying from COVID-19 in New York nursing homes.
Critics say that the immunity law removed a key deterrent to corporate malfeasance, and victims and their families were subsequently stripped of their legal rights. Cuomo’s original executive order shielding front line health care workers from lawsuits was widely reported, but not the governor’s separate budget language extending immunity to hospital and nursing home corporations’ executives and board members.
Author(s): David Sirota, Joel Warner, Andrew Perez, Julia Rock
The State Department of Health (DOH) has failed to hold accountable certain health care providers including hospitals, nursing homes and individual nurses, for patient safety violations and use its power under the law to impose stronger fines. Additionally, DOH does not ensure amounts collected are directed to increase patient safety, as required, according to an audit released today by State Comptroller Thomas P. DiNapoli.
“Lisa’s Law was created to make health care in New York safer and give patients the knowledge they need to make informed decisions,” DiNapoli said. “The Department of Health generally has improved the public’s access to health care information. Too often, however, it gives negligent health care providers a slap on the wrist by not issuing financial penalties that can act as a deterrent against future incidents and help fund improvements in patient safety. DOH needs to do better.”
Author(s): Thomas DiNapoli
Publication Date: 10 March 2021
Publication Site: Office of the NY State Comptroller
Smith-McLallen: In a broad sense, what the nonessential business closure policy did was to create a situation that limited interpersonal contact for nonessential workers who were staying at home. But it also limited contact for essential workers who were perhaps commuting with fewer people, for example, and not necessarily exposed to all of the people who were staying at home. That secondary protective effect was very effective at reducing cases.
Another thing about that secondary protective effect is we might think that if there would have been no nonessential business closure — if the nonessential workers had gone out to work — their infection rates would have been the same as we observed among the essential workers. There would be no difference. That’s what the results of our study speak to. However, there is a real possibility that the rates for everyone would have been considerably higher, even higher than what we observed in the essential worker population, just because of the increased contact and exposure across the board.
What I think policymakers should take from this research is that with new strains of the virus being discovered, if we reach a point where we need to aggressively limit contact and transmission, nonessential business closure policies can be effective. And now we can quantify just how effective they can be.
On Jan. 27, 1986, Allan McDonald stood on the cusp of history.
McDonald directed the booster rocket project at NASA contractor Morton Thiokol. He was responsible for the two massive rockets, filled with explosive fuel, that lifted space shuttles skyward. He was at the Kennedy Space Center in Florida for the launch of the Challenger “to approve or disapprove a launch if something came up,” he told me in 2016, 30 years after Challenger exploded.
His job was to sign and submit an official form. Sign the form, he believed, and he’d risk the lives of the seven astronautsset to board the spacecraft the next morning. Refuse to sign, and he’d risk his job, his career and the good life he’d built for his wife and four children.
“And I made the smartest decision I ever made in my lifetime,” McDonald told me. “I refused to sign it. I just thought we were taking risks we shouldn’t be taking.”
Sens. Blumenthal, Bob Casey (D–Penn.), and Amy Klobuchar (D–Minn.) introduced the STURDY Act last Thursday. The legislation would require the federal Consumer Product Safety Commission (CPSC) to develop more rigorous standards for dressers and other free-standing “clothing storage units” to prevent them from tipping over.
Deaths from falling furniture have attracted increased attention recently. According to the CPSC, which has released a series of reports on these incidents, 571 people, including 451 children, have died in the last 20 years from accidents involving unstable TVs, furniture, and appliances.
Most of these fatalities involved either falling TVs or falling furniture. Incidents involving only a tipped-over dresser or bureau, the subject of the STURDY Act, have produced 115 deaths in two decades.
Attorneys insist nursing home negligence cases are not designed to target nursing home employees and other frontline workers caring for facility residents during the pandemic. As Mosher notes, “In most cases, these people are just as much victims as the residents.”
Instead, the lawsuits are going after nursing home owners and operators, a population that has become increasingly dominated by private equity firms, shell companies, and other secretive for-profit operations, which make staffing and other decisions about quality of care in boardrooms and corporate offices far removed from those who are impacted.
The results of these cases are not about simply scoring million-dollar settlements and padding lawyers’ pockets, say legal experts. Torts and class action suits are an important deterrent to bad behaviors in an industry that has become known for lax oversight.