Archive for the ‘ Birth Injury ’ Category

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12
Aug

Cumberland County, Pennsylvania Hospital In Carlisle Alleged SERIOUS PROBLEMS.

Three days ago, a story broke, that Carlisle Regional Medical Center (“CRMC”) had been taken to task by the Pennsylvania Department of Health. The article said two deaths in the Emergency Department may be blamed on dangerous understaffing.

I read the survey results on the DOH website, and it doesn’t look good for CRMC. Below are the lowlights, because I’m certain CRMC would not call them highlights.

The hospital did not, “provide high quality health care to ensure care was provided in a safe setting.” On a specific day, May 23, 2011, the ED had allowed at least one patient to wait sixteen hours before being taken to the med-surg service or the ICU. In this period, it was found the ED was down a nurse. Nurses in the ED complained to their supervisor, but no remedy was found. The following day, a similar situation occurred, again when the ED was one nurse short. The supervisor did not fix the staffing problem. The problems continued through June 3, 2011.

Despite the days of problems, the facility’s Emergency Department continued to accept patients, and did not send seriously ill people to a hospital that could provide appropriate care.

CRMC appears to have violated its own policy of moving patients to the proper service within thirty minutes of the order having been written.

In an interview, an unnamed source said, “When we tell administration they say we are out of control and troublemakers.” The doctors, who are temporarily hired in, do not know how to use the computer system and slow the work of the nurses. When a cardiac patient codes, requiring the full attention of the staff, there is a single nurse left to watch the trauma patients, and some of the cardiac monitors don’t work.

An unnamed employee stated, “The patients have a delay in treatment because of lack of staffing.” Part of the problem is that CRMC is not hiring. There were only two part-time nursing positions open in the other parts of the hospital. If the ICU nurses or the med-surg nurses are overwhelmed, and that is causing long hold times in the ED, it appears CRMC is doing nothing to fix the problem. Another quote from the survey: “Insufficient staff causing a backup in the ED.”

Hospital management was aware of serious understaffing, and “told the ED nurses to be more creative.” It appears the ED director was fired because of attempting to fix the understaffing problem.

Now to the specific cases that ended in patient deaths.

The Department of Health Survey says, “…the facility failed to ensure that the Emergency Department services were provided to meet the emergency needs of patients in accordance with acceptable standards of practice for two of two serious events reviewed.” Keep in mind, these are not my words, these are not the reporters words, these are words I’m copying from the survey done by Pennsylvania.

Incident: June 5, 2011. A patient triaged from the Emergency Department to Intensive Care Unit, taken to CT Scan from the ED, on the way back to ED, coded and died. Evidently, the patient went to the CT Scan without a nurse, as no nurses were available. When he became unresponsive, he was brought back to the ED for resuscitation. The patient coded after being in the ED for six hours. An unnamed employee said that at the time of the incident, the ED was full and the waiting room was full. It appears that the ED was short one RN and was at less than minimal staffing.

Incident: June 11, 2011. A cardiac patient was seen by a doctor who intended he would be transferred to another facility. The patient was diagnosed with critical aortic stenosis. He arrived at CRMC at approximately 11:14a.m., and still in the ED, passed away at 6:37p.m. A man with a serious heart problem and dramatic symptoms, stayed in the ED for almost seven hours. A doctor’s note, said the patient remained “in the emergency room due to staffing issues…” No order was ever written for a transfer to an outside facility. Department of Health officials reviewed a medical record, which they report said the following: “The ED was overwhelmed. Nurse patient ratio was 9:1, 6:1, and 7:1. The triage nurse was taking patients and unable to answer call bells. IV pumps were unavailable. There were delays in getting beds and delays in patients being evaluated by MD. A code occurred and the patient died.” On the day of the incident, the ICU was full and management was aware of the situation.

After these events, the hospital did not even follow the simple duty of reporting the serious incident to the state, as required by law. An unnamed employee told the state investigators that death on the way back from the CT scanner met the facility’s own definition of a serious event, which should have been reported. No kidding. CRMC’s patient safety officer was not informed of the event. Similarly, unnamed employees, speaking about the death of the cardiac patient, said the incident was not reported to the patient safety authority. Another person said that “there were unsafe staffing in the Emergency Department that may have contributed to the death of the patient and this was not reported to the Patient Safety Authority.”

Two hindered thirty three RN shifts were not filled from June 21, 2011 through July 23, 2011. The ED had insufficient staff to cover all shifts.

From May 22 through June 8, 2011, the Emergency Department was used for inpatient care, which is not allowed. The ED was not designed, equipped, and staffed for inpatient care. This is a violation of patient-limit regulations in the Pa. Code. Beds in the ED were used as inpatient beds for up to eighteen hours. CRMC knew that these patients were considered “inpatient” as the billing confirmed it. Two hundred people were held in this manner in violation of regulations. Sadly, this was a repeat deficiency which had been raised in March of 2009.

Joe Chapman
SCHMIDT KRAMER PC
209 State Street
Harrisburg, PA 17101
(717) 232-6300

http://blog.schmidtkramer.com/ for all things injury law.

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25
Nov

Pennsylvania Supreme Court Limits Effect Of Release In Vicarious Liability

Below is the link to the majority opinion from the Pennsylvania Supreme Court on November 24, 2009 in Maloney v. Valley Medical Facilities where the Court (opinion by Justice Saylor) holds that a plaintiff’s release of a principal whose potential liability is vicarious does not necessarily discharge the plaintiff’s claims against the agent, especially when their has been an express reservation of rights. The Court holds that parties to a settlement should be afforded latitude to effectuate their express intentions. The Court indicates that its decision in Mamalis v. Atlas Van Lines, 560 A.2d 1380 (Pa. 1989) is limited to a simple fact pattern involving a single principal, a single agent, a single event and consequences of the release of the party bearing primary liability upon settlement” and that is should not be read to apply to a situation with multiple agents, events, tortfeasors, etc.

The case at hand is a medical malpractice case but the Court is specific that its holding is not limited to medical negligence actions. Obviously, it would now be applied in an auto case. Justice Greenspan wrote a dissent and would enforce the release to the principal, even if their has been an express reservation of rights. Justice Saylor’s opinion also has a detailed explanation of the difference between joint tortfeasors and vicarious liability which is worth reading.

http://www.pacourts.us/OpPosting/Supreme/out/J-16-2009mo.pdf

Scott B. Cooper

scooper@schmidtkramer.com

717-232-6300

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4
Sep

En banc panel of Pennsylvania Superior Court Decides Jury Should Not Be Instructed on Doctor’s “Error of Judgment” – Decision Protects Patients’ Rights

 

Below is the link to a Pennsylvania Superior Court decision from August 31, 2009.  In Pringle v. Rapaport, ___ A.2d ___ (Pa. Super. August 31, 2009),  the Superior Court reversed a Clearfield County Court of Common Pleas verdict for the defendant doctor.

 

The case arose when Austin Pringle’s shoulder became stuck behind his mother’s pubic bone during his delivery.  This is known as shoulder dystocia.  The defendant doctor used the appropriate series of maneuvers to emergently deliver Austin, but used force in the final maneuver which caused Austin to have severe nerve damage to his right arm.  In fact, nerves in Austin’s upper back and neck were torn or stretched.  This brachial plexus (web of tissue and nerves) injury resulted in Austin’s right arm being paralyzed.

 

Austin’s family alleged the doctor’s delivery was performed negligently.  Their theory of liability was that the doctor had used too much traction (force to remove the baby), when he made the last maneuver, and that excessive force caused the injury.  Further, there was no other explanation for how Austin was injured, and therefore it must have been the excessive force the doctor used in delivering him. 

 

Standard of Care and “error of judgment”

 

The case went to trial, and the jury was instructed in the standard of care owed by the defendant doctor.  The charge read first,

 

A physician must have and use the same knowledge and skill and exercise the same care as that which is usually had and exercised in the medical profession.  A physician whose conduct does not meet this professional standard of care is negligent.

 

Later in the instructions, the jury was told,

 

Folks, if a physician has used his best judgment and he has exercised reasonable care and he has the requisite knowledge or ability, even through complications resulted, then the physician is not responsible, or not negligent.  The rule requiring a physician to use his best judgment does not make a physician liable for a mere error in judgment provided he does what he thinks best after careful examination.

 

Pringle appealed, and argued that the error of judgment charge did not help the jury with the standard of care, against which the defendant doctor’s conduct was to be measured, but was confusing instead. 

 

The Pennsylvania Superior Court agreed with the argument Pringle’s lawyer put forth.  The court based its opinion mainly on Donaldson v. Maffucci, 156 A.2d 835 (Pa. 1959), and Smith v. Yohe, 194 A.2d 167 (Pa. 1963), which focused on whether the physician had violated the requisite standard of care, rather than on whether he committed an error of judgment.  In Yohe, the court stated,

 

If a physician, as an aid to his diagnosis, i.e. his judgment, does not avail himself of the scientific means and facilities open to him for the collection of the best factual data upon which to arrive at his diagnosis, the result is not an error of judgment but negligence. Yohe, 194 A.2d at 173.

 

Though, in the past and in fact in Yohe, the Pennsylvania Supreme Court had included in its principles for physician liability that “a physician is not liable for an error of judgment,” the court left the concept behind beginning with Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971).  The Committee on Proposed Standard Civil Jury Instructions recognized this fact, and has not included “error of judgment,” in its instructions since its first publication and the notes to the instruction for physician negligence said,

 

The inclusion of such phrases in jury instructions [error in judgment] seems unlikely to serve that purpose [helping to understand standard of care].  To the contrary, such phrases, at worst, risk misstating the law.  At best, they seem unnecessarily circular in form.

 

The court was most concerned that a jury would understand that the physician’s conduct included actions, judgments, and decisions, all of which can meet or violate the standard of care.  Further an error in judgment charge appeared to be subjective, and the physician standard of care remains an objective one.

 

res ipsa loquitur and “error of judgment”

 

The error in judgment issue again arose in the instructions for res ipsa loquitur.  First the court charged the jury,

 

…You may infer that the harm suffered by Austin was caused by negligence of [Dr. Rapaport] if your [sic] find the following three factors are present:  First that the accident, or the harm involved here, is of a kind that ordinarily does not occur in the absence of negligence…that the other responsible causes…have been sufficiently eliminated…[Dr. Rapaport] had exclusive control involved here at the time when the negligence that is claimed would have occurred…

 

Then the court charged,

 

Physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake of judgment.  Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgments unless it is proved that an error of judgment was the result of negligence.  And folks, as a general proposition that applies in any case, doctors or physicians do not guarantee a cure to their patients, and negligence should not be presumed from the occurrence of an unfortunate outcome.  (emphasis added)

 

In short, the res ipsa loquitur rule in medical malpractice is negligence is proved when someone shows they have, “…been injured by a casualty of a sort that normally would not have occurred in the absence of the defendant’s negligence.” Quoting Quinby v. Plumstead Family Practice, 907 A.2d 1061, 1071 (Pa. 2006).  It was held, the two instructions were contradictory, because it instructed both to infer and not to infer liability for the happening of the injury.

 

Conclusion

 

The Pennsylvania Superior Court cleared up a confusing area of medical malpractice law by recognizing an “error of judgment” jury instruction is confusing at best, and, depending on the theory of liability, directly contradictory to the rule of law.  Schmidt Kramer injury lawyers believe the Court protected patients’ rights in this decision, and are available to discuss your case in the context of the existing medical malpractice law in Pennsylvania.

 

http://www.pacourts.us/OpPosting/Superior/out/e04001_08.pdf 

 

Submitted by, Joe Chapman, Schmidt Kramer Injury Attorney

717-232-6300

1-800-232-6301

www.schmidtkramer.com

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6
Jul

Pennsylvania Supreme Court Allows Nurse’s Testimony on Causation When Nurse Defendant Failed to Meet Standard of Care in Medical Malpractice Case.

Below are links to the majority and the dissenting opinion of the Pennsylvania Supreme Court in the recent decision, Freed v. Geisinger Medical Center, ____ A.2d ____ (Pa. June 15, 2009). Justice Todd wrote the opinion for the majority and the dissent was authored by Justice Eakin.

The medical malpractice suit was based on allegations that the nursing staff at a rehabilitation hospital did not meet the standard of care in preventing and treating pressure sores Mr. Freed developed.

In a medical malpractice case, the Plaintiff, Mr. Freed, must have an expert give an opinion that the treatment fell below the standard of care and that the negligence caused the injury alleged. For an expert, Mr. Freed’s lawyer presented a registered nurse to testify at trial. Geisinger objected when the testimony was offered, and the trial court held the RN was not qualified to give a medical diagnosis. Without this testimony, Mr. Freed’s case failed because he could not prove the substandard treatment was the cause of his injury.

In the Court of Common Pleas, a motion for compulsory non-suit was granted and the Plaintiff’s case was lost. The Pennsylvania Superior Court reversed. Here, the Supreme Court affirmed and held the Plaintiff’s expert may testify, and the case was remanded for trial.

Legal Reasoning

The Court began by defining “expert” as someone with more than an ordinary range of training, knowledge, intelligence, or experience, who has specialized knowledge in the subject under investigation and cited to Miller v. Brass Rail Tavern. Next, Justice Todd explained why the Supreme Court’s decision in, Flanagan v. Labe, needed to be overturned and therefore was not binding on the Freed case. Flanagan held that the Professional Nursing Law says a nurse may not make a medical diagnosis. That being the case, a nurse cannot give expert testimony in court which requires a medical diagnosis. Therefore a nurse cannot testify to causation in a medical malpractice case. Here, the Supreme Court holds that testifying as an expert considers past events or hypotheticals, and there is no implication of “the practice of nursing,” in which a patient is involved. The testimony is outside of what was considered by the statute, and it qualifies for what the court has already defined as expert.

Where the medical negligence is a breach of the standard of nursing care, and that failure caused the injury, a nurse can testify to what caused the injury.

A question remains whether the Court’s holding in Freed will be the standard applied to non-physician health care providers, or whether the increased threshold for who can be an expert created by the MCARE Act will apply. Question raised in the majority’s footnote 8.

The dissent would uphold Flanagan and reverse the Pennsylvania Superior Court here, because its opinion is in conflict with Flanagan. The opinion is based on the Professional Nursing Statute and the MCARE Act, and extends restrictions on a nurse’s ability to opine on medical diagnosis to the court room.

A medical malpractice attorney from SCHMIDT KRAMER will choose the right expert for your case, based on the current state of the law in Pennsylvania.

Majority: http://www.aopc.org/OpPosting/Supreme/out/J-87-2008mo.pdf

Minority: http://www.aopc.org/OpPosting/Supreme/out/J-87-2008do.pdf

D. Joseph Chapman, Esquire

jchapman@schmidtkramer.com

717-232-6300

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4
May

District Court For Eastern District Of Pennsylvania Allows Amendment Of Medical Malpractice Complaint Finding That Language Barrier May Delay Discovery Of Medical Error

Following is the link to the recent memorandum decision of the Federal Court in the Eastern District of Pennsylvania, Ramos v. Quien, 09D0403P (E.D. Pa. April 2, 2009, Baylson, J.)

The court allowed an amendment to Mr. Ramos’ Complaint, when his medical malpractice lawsuit may have been affected by a language barrier and poor drafting of the original Complaint by his attorney. The language barrier may have slowed his discovery of the medical error, thereby tolling the statute of limitations. The court determined the Defendant doctor was not prejudiced, because his Answer to the Complaint raised a defense based on the statute of limitations.

Mr. Ramos’ lawyer filed a Complaint in November 2007. He then filed an Amended Complaint which alleged he did not become aware that he had cancer until November 2005. After Defendant’s Answer and New Matter alleged the statute had run before the action was put into suit, Plaintiff replied that the discovery rule tolled the statute of limitations until November of 2005, when he discovered he had cancer. The court found allegations in the original Complaint and the Amended Complaint to be very similar. Though there was evidence which showed Mr. Ramos may have known of his cancer before November 2005, what weight should be given the evidence was not to be determined as a matter of law. His original Complaint alleged he did not know about the cancer in January, 2006.

Where the defendant recognized a statute of limitations defense, and preserved it in their Answer to Plaintiff’s Complaint, there is no prejudice in allowing an amendment which clarifies an allegation which was already in the original Complaint.

http://www.paed.uscourts.gov/documents/opinions/09D0403P.pdf

D. Joseph Chapman

Attorney at Law

jchapman@schmidtkramer.com

717-232-6300

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5
Mar

NEW U.S. SUPREME COURT DECISION HOLDS STATE PRODUCTS LIABILITY LAW IS NOT PREEMPTED WHEN DRUG WARNING WAS INSUFFICIENT; A WIN FOR CONSUMER PROTECTION.

Below is a link to the opinion from the U.S. Supreme Court issued on March 4, 2009, in Wyeth v. Levine, 555 U.S. _____ (2009). One of the products liability or medical malpractice attorneys at Schmidt Kramer PC, in Harrisburg, PA, can explain the application of the decision to your case.

Wyeth is a company that manufactures a drug called Phenergan. The drug is corrosive and causes irreversible gangrene if it enters a patient’s arteries. On April 7, 2000, the drug was introduced into Diane Levine’s body through the IV-push injection method. This is where the drug is injected directly into her vein, rather than being dripped in through a saline solution. During the injection, the drug somehow encountered an artery, causing gangrene and eventual amputation of her right forearm. This ended her career as a professional musician.

After settling her medical malpractice case, Ms. Levine’s product liability case against the manufacturer went to a jury in Vermont. She won, and was awarded compensation for medical bills, loss of income and future earning capacity, and pain and suffering in excess of six million dollars.

The case was appealed through Vermont’s high court, and was before the U.S. Supreme Court to consider the following issue: When the manufacturer’s label failed to provide adequate warning of the risks of using a particular method of introducing the drug into the body, should the judgment be overturned because the label was approved by the Food and Drug Administration, preempting a jury award based on state tort law? The court considered this narrow question, because the record in the lower courts was conclusive that had a stronger warning been present, the drug would not have been administered as it was, and that the warning for IV-Push administration was insufficient. The Supreme Court viewed these facts with the understanding that Congressional purpose determines preemption and federal law will only preempt the traditional police powers retained by the state when its purpose was clear and manifest.

The U.S. Supreme Court decided, the FDA’s approval of the label is not a complete defense to a state law tort claim. Wyeth was found to be able to comply with both duties imposed on it by the state tort law jury verdict and the federal labeling approvals. The court also found that subjecting Wyeth to a state tort law duty would not obstruct the purposes and objectives of federal drug labeling regulations. Ms. Levine’s claim was not preempted by federal law. The judgment from the jury in Vermont was allowed to stand.

http://www.supremecourtus.gov/opinions/08pdf/06-1249.pdf

Joe Chapman

Attorney at Law

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27
Feb

NEW PENNSYLVANIA SUPREME COURT DECISION HOLDS MEDICAL MALPRACTICE CASE PRESENTS QUESTION FOR JURY ON STATUTE OF LIMITATIONS.

Below is a link to the opinion from Pennsylvania’s Supreme Court decided on February 19, 2009, in Wilson v. El-Daief, ____ A.2d ____ (Pa. 2009). Please contact the medical malpractice attorneys at Schmidt Kramer PC, in Harrisburg, PA, for an explanation. A lawyer will explain the application of the decision to your case.

Mary Elizabeth Wilson had an operation on her wrist. After the operation, her hand clinched into a fist, her elbow turned inward, and her shoulder drew upward. For these problems, she continued to see the physician who performed the operation. For more than one year, he told Ms. Wilson, she would be fine. She was referred to an orthopedic surgeon who, for more than a year, was unable to tell what was wrong or how it had happened. Finally, after bouncing back and forth between the two doctors Ms. Wilson said she knew something was wrong and that she had not been treated appropriately by her surgeon. She said this in September 2001.

The question before the court was only whether Ms. Wilson’s claim was barred by time limitations. She had two years from when her claim accrued to file a lawsuit. Ms. Wilson’s Writ of Summons and subsequent Complaint, alleging the doctor who performed her surgery had lacerated the radial nerve in her wrist, were not filed within two years of the surgery, nor within two years of the date she stated she knew something was wrong. Without more, her claim would not have been allowed to proceed. But here, whether the claim was time-barred, hinged on the court’s application of the discovery rule.

The court ruled there was potential for Ms. Wilson to be confused about whether she was injured and its cause, because her surgeon told her she would be fine, and the orthopedic surgeon did not explain all the possible diagnoses he was considering. The court stated that a person with a high school education, cannot be held to a higher standard of knowledge than two medical doctors – if the physicians were unable or unwilling to tell her what was wrong, then she may not have known. Her efforts to find out what was wrong were considered to present a genuine issue of material fact, when she continued to meet with her surgeon and the orthopedic surgeon, as well as seeking out the opinion of a third doctor. A definitive medical diagnosis was not needed to begin the running of the statute of limitations, but a mere loss of confidence in her doctor was not sufficient to begin the running of the time in which she had to file her lawsuit.

The posture of the case was on appeal from a grant of summary judgment to the defendant-doctor based on the claim being time-barred by the statute of limitations. The Pa. Supreme Court reversed, but did not state as a matter of law that the discovery rule allowed the claim to proceed. Against strong protests of the concurring/dissenting justices, the Supreme Court said a jury needed to decide whether Ms. Wilson had used reasonable diligence in discovering her injury and its cause.

http://www.aopc.org/OpPosting/Supreme/out/J-148-2008mo.pdf

Joe Chapman

Attorney at Law

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9
Feb

SURGICAL ERRORS AND MEDICATION ADMINISTRATION ERRORS ARE TOP REASONS PATIENTS NEED TO TAKE CONTROL OF THEIR OWN CARE.

Below is a link to an article, written by a medical doctor, which explains how dangerous it is to go to the hospital. In the February 8, 2009, article, the doctor highlights surgical errors and medication administration errors as areas of concern.

“Surgical Errors

The Risk: About 1300 times a year, surgeons operate on the wrong person or remove the wrong limb or organ. Also, doctors leave surgical instruments inside the body once in every 5000 surgeries. This is the stuff of headlines, but such incidents are rare, considering that more than 20 million surgeries occur every year. Far more common preventable problems are stitches coming loose, blood clots forming during or after surgery, and infections. These can lead to very serious outcomes.”

“Medication Errors

The Risk: Giving the wrong drug, administering the wrong dose, mixing drugs that interact badly, or giving a medication to which a patient is allergic—all can be deadly. Unfortunately, such mistakes are not rare. Adverse drug events cause one out of five injuries or deaths to hospital patients in the U.S.”

Pennsylvania injury lawyers at Schmidt Kramer PC have successfully prosecuted such obvious medical malpractice cases in the Harrisburg area. The attorneys at Schmidt Kramer PC have also benefitted their medical malpractice clients with very good results in more difficult medical negligence cases.

Click on the link below for the full article.
 
Attorney at Law
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30
Jan

Pennsylvania Supreme Court Affirms Holding On MCARE Expert Testimony

Below are the links to the opinions by Justices Saylor and Greenspan in the 3-3 decision (Justice McCaffery did not participate) issued January 29, 2009 in Gbur v. Golio. The Pennsylvania Supreme Court affirms the trial court and Superior Court opinions which allowed an expert in radiation oncology to testify in a medical malpractice case involving a urologist. The lowers courts opined that the expert and his background was in the same sub-specialty and qualified under Section 512(c) of the MCARE Act. The Supreme Court affirms but writes 2 opinions since the Court is split on the reasons for affirmation. Justice Saylor would affirm because the motion in limine and trial testimony did not fully develop the objection under Section 512 to disqualify the expert. Justice Greenspan would find that the record was developed but the expert had sufficient background and credentials to qualify to testify as an expert under Section 512 of the MCARE Act. Therefore, the Superior Court is affirmed and the issue that the Court was reviewing about a medical expert of a sub-specialty testifying is preserved for another day.

Justice Saylor Opinion Link
http://www.pacourts.us/OpPosting/Supreme/out/J-119-2008mo.pdf

Justice Greenspan Link
http://www.pacourts.us/OpPosting/Supreme/out/J-119-2008co.pdf

Scott B. Cooper
scooper@schmidtkramer.com
717-232-6300

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20
Jan

Pennsylvania Association For Justice Responds To George Will (Pocono Record – January 18, 2009)

‘Safety cult,’ or a constitutional right?
By ANTHONY GREEN
Pennsylvania Association for Justice
January 18, 2009

In his Jan. 11 column “Lawsuits and death of common sense,” George Will expressed anguish about a proliferation of rules, warnings and safety measures, ridiculing many of them and suggesting that this epidemic is prompted by purported lawsuit abuse.

It would be interesting to follow George Will through a morning in Washington, D.C., and think about the warnings and safety measures he would get rid of. Let’s say he gets to the Metro to go to work at the Washington Post and he sees the blinking lights as the train is coming to alert riders to stand back. Should they turn off the lights? Should other transit companies get rid of the bumpy tread along train tracks designed to stop people from falling over? If it was raining that day and the Post building managers put up plastic, yellow signs cautioning about wet floors, was that a waste of their time and money? Is it wise or necessary for the elevator at the Post to have communications systems and emergency bells?

George Will should know about the Constitution, which in its Seventh Amendment guarantees all of us a right to a jury trial. I know that because I used to work at the National Constitution Center, a new museum on Philadelphia’s Independence Mall dedicated to the history, meaning and evolution of the document created there. One day, I noticed George Will wandering around the lobby as he waited to see the opening show, “Freedom Rising.” Once you leave the theater, one of the first things you come across is a model jury box, paying homage to jury trials and the Seventh amendment to the Constitution.

You can learn a lot about the document there, but Will must have forgotten some of it, at least what it says about our right to jury trials. He includes an encyclopedia of stories which he portrays in no more than 12 words as frivolous lawsuits. Some of the cases involve children and schools, like a new rule at a South Florida school banning running at recess because of a child that got out of hand.

He probably obtained many of his anecdotes from think tanker Philip Howard. He quotes Howard in his anxiety about “a bubble wrap approach to child rearing” from a “cult of safety.” In other words, the argument goes, companies and institutions are so worried about lawsuits that they set rules by the bakers’ dozen and hang up warnings everywhere. Philip Howard is a genial man (whom I also met working at the Constitution Center) whose “think tank” has a genial name, “Common Good.” He works for a large law firm which represented the tobacco industry in its decades-long battle against people suing who were dying or dead because of the lethal nature of cigarettes. (The “safety cult” won a warning on cigarette boxes long ago.)

When are the warnings that Will and Howard dispute unwarranted? When is a safety measure justified or urged on by the “safety cult”? Is everything else a frivolous lawsuit until you get hurt and sue? What about the Supreme Court Justice who constantly railed against unjustified lawsuits, until he fell off a stage giving a speech at the Yale Club and sued? The Wills and the Howards of the world think it makes common sense to let the free market regulate industry, not the courts or government. This common sense deregulation and downsizing of civil justice brought us the meltdown on Wall Street, (alleged) Ponzi schemers like Bernard Madoff and the sub-prime mortgage crisis. We’re headed for much more trouble if they want to extend it to the places where our children play and the lead painted toys they chew on.

It is the civil justice system embedded in the Seventh Amendment that keeps us safe, saves us from being cheated and provides us with fairness when others commit reckless conduct, especially at a time when government has turned its back from providing for the general welfare. The courts, brave plaintiffs seeking justice and their lawyers are the only ones filling the void. When corporations and institutions respond with rules, warnings and measures to make us safer, that, too, is the free market system at work.

Anthony Green formerly served as a vice president at the National Constitution Center and is presently Executive Director of the Pennsylvania Association for Justice.