South Carolina Personal Injury Law Blog

SC Governor Attempts to Interfere with Workers' Compensation Commission

South Carolina Governor Marshall (Mark) Sanford has attempted to exert his will upon the South Carolina Workers' Compensation Commission.  Basically, he is trying to tell an arm of the judicial branch how to do its job, ignoring the mandates established by the legislative branch when it established the Commission.  The following is an article written by John P. Freeman, who is the John T. Campbell professor of business and professional ethics at the University of South Carolina School of Law, which provides excellent insight and analysis to this situation:

THE GOVERNOR'S INTERFERENCE

We all studied civics in school. We learned about such things as how there are three separate branches of government: the legislature, the executive and the judiciary. Remember the lesson? We were taught that the legislature writes the laws, the executive branch enforces the laws and the judiciary interprets the laws. This separation of powers was designed to protect citizens from excessive power being wielded by any single branch.

Unfortunately, it appears Gov. Mark Sanford cut class the day the foregoing civics lesson was taught.

His lack of education about separation of powers (or his deliberate disregard for the concept) was shown on Sept. 20 when he promulgated an executive order that directed commissioners on the Workers Compensation Commission to change how they decide cases. He commanded them to strictly use “objective standards” in rendering awards.

His aim was to reduce awards for injured workers, thereby saving money for his political base, namely the business community and insurance companies. What Gov. Sanford sought to orchestrate was a wealth transfer: Workers take less, his political base pays less.

Make no mistake about it. Gov. Sanford, the executive branch’s leader, intended to change the law by manipulation of judges he assumed he could control. We know this because when he signed the order at his press conference, comments made by him and his invited guests, business lobbyists, were captured on videotape. On that tape we find Gov. Sanford billing his “objective standards” approach as adding to the workers compensation law something “that was lacking.” Business lobbyists present at the press conference praised Gov. Sanford for “today... implementing objective standards into the workers compensation system for the first time.”

This new requirement pleased the business lobbyists since the Legislature, the government branch actually empowered to write laws, had refused to enact objective standards in the last legislative session.

To enforce his command that workers comp awards be reduced, Gov. Sanford’s order demanded that each commissioner report to the governor quarterly about adherence to the order’s award-cutting command. Implicit in the reporting requirement was the suggestion that failure to follow directions exposed a recalcitrant commissioner to punishment, either removal or the governor’s failure to reappoint.

One of the lobbyists at the order-signing press conference explained that the governor’s right to pressure workers compensation commissioners to change the law was rooted in a “pretty simple concept.” The commissioners, he explained, “are not judges.... They are part of the executive branch. (Gov. Sanford) is the leader of the executive branch.” Another lobbyist later chimed in that “Even making a decision on whether or not to follow the governor’s executive order is improper because the commissioners are not judges.”

What smug business lobbyists and Gov. Sanford have now learned is that a Workers Compensation commissioner is not a puppet on a string. Each actually is a judge from an ethical standpoint, having been placed under the Canons of Judicial Ethics by the Legislature in 2005. Those ethical precepts demand that commissioners must act 24/7 with impartiality and integrity. They are ethically commanded to be faithful to the law and to disregard outsiders who seek to steer their decision-making.

The commissioners’ high ethical standards prevent them from dispensing favors to special interest groups, even when the governor who appointed them orders them to do so.

Political conservatives decry judicial activism, and Gov. Sanford presents himself as a conservative. But his aim in signing this executive order was anything but conservative. It was judicial activism personified. Gov. Sanford sought to manipulate judges in order to change the law to favor the business community, his political base. In their order flatly rejecting Gov. Sanford’s command, the Workers Compensation commissioners offered the governor a make-up assignment for that civics lesson he seems to have missed years ago. They also provided an example of professional integrity he would do well to emulate.

The rest of us can learn lessons from this episode as well. For one thing, we need to remember that those who seek to manipulate judicial decision-making are not working to serve the common good. Their intent is to benefit themselves, the special interest groups. The Workers Compensation commissioners’ steadfastness proves we have public servants with backbones and 20/20 vision.

Mr. Freeman is the John T. Campbell professor of business and professional ethics at the USC School of Law.

Source:  "The Governor's Interference" by Prof. John P. Freeman, published at The State newspaper.

State Agency Destroys Records Related to Consumer Disputes with Insurance Companies

For a year, the Florida Department of Financial Services has thrown away records relating to consumer disputes with insurance companies. Lawyers and open records advocates claim that by tossing the material, the state made it harder to track bad business practices by the insurance industry and uncover patterns of abuse. A public records champion called the practice ‘horrendous.’  A Department of Financial Services lawyer countered that since the files weren't requested and aren't required by law, the agency was free to destroy them. The state also questioned the value of the documents. For now, however, the practice is on hold.

Source:  "Lawyers Rip Agency for Destroying Documents" by Paige St. John, published at Florida Today.

Smallpox Vaccine Caused Illness in Soldier’s Son

According to a government report and attending physicians, a two-year-old boy almost died after contracting a viral infection as a result of exposure to the smallpox vaccine his father received before being deployed to Iraq. The infection, eczema vaccinatum, caused the boy to suffer kidney failure and lose most of his skin.

According to experts, because the father had eczema during childhood and the son too suffered from the skin condition, the vaccination should have never been given due to the risk for side effects and infection. Military regulations require those receiving vaccinations to be asked about history of such conditions in themselves and their families. 

Source:  "Soldier’s Smallpox Inoculation Sickens Son" by John Schwartz, published in The New York Times.

Man Exonerated After Wrongful Conviction Awarded $5 Million

A Connecticut man was awarded $5 million from the state after serving 18 years for wrongful conviction of rape. Members of the state legislature voted unanimously Wednesday to give James Tillman $5 million, following his 2006 exoneration and release. The $5 million settlement was reached in an agreement to halt possible lawsuits against the police and state by Tillman.  DNA tests, pushed for by The Innocence Project, a New York-based legal group, helped overturn the conviction. 

Source:  "Wrongly Jailed U.S. Man Gets $5 Million" by Av Harris, published by Reuters.

Congressman Calls for Investigation in Dangerous Toy Case

An Illinois Congressman has called for an investigation into the slow reaction by the U.S. Consumer Product Safety Commission in recalling a hazardous toy that killed a child in Seattle.  The CPSC had been warned that magnets in Magnetix toys may fall out, connect in the bowels if swallowed, and cause internal injury.  However, the CPSC failed to recall the toy until after the death of the child in 2005.  The CPSC announced a limited recall of the toys in March 2006. However, last month the agency expanded that recall to include another 4 million boxes after admitting it received 1,500 complaints about magnets coming loose.

Source:  "Congressman Calls for Toy Recall Investigation" by Patricia Callahan, published in the Chicago Tribune.

Woman Files Lawsuit After Falling Into Open Grave

A federal judge has allowed an elderly woman to proceed with her lawsuit against a funeral home and the town of Highlands, NC. According to the lawsuit, she fell into a grave while attempting to place flowers on a friend's casket, and she sustained a broken hip in the fall.  The woman claims that the site was not safe for the June 2004 service, because workers did not dig the grave to the proper size, cover the opening with plywood, or warn people of the danger. 

Source:  "Woman Sues After Falling Into Open Grave" published in the Boston Globe.

What Our Soldiers Really Need Is Lawyers

You have probably heard about the scandal involving the conditions at the Walter Reed Army Medical Center.  However, what you probably have not heard is even more shocking.  Did you know that for decades, our military servicemembers have been barred from suing for medical malpractice and other forms of negligence by the government under the Feres Doctrine?

This doctrine prohibits servicemembers from seeking the same relief that other citizens can when harmed due to the negligence of others.  Of course, the threat of a lawsuit (and more specifically a judgment) serves as a critical deterrence of negligence by the government, companies, and others.  In other words, knowing that one could be held accountable, required to pay compensation, and possibly pay punitive damages will cause most rational people to take steps to ensure that they act reasonably and thus minimize their legal exposure.

In the military system, there is little deterrence for military negligence beyond self-regulation, bad publicity, or a political scandal, thanks to the Feres Doctrine.  Further, since most accidents are isolated and military personnel tend to stay within the chain of command, these are relatively low risks for military tort-feasors and since such accidents are not litigated, there is no reliable system to determine the rate of accidents in the military.

The military medical system is a prime example of what happens when patients are stripped of their legal protections.  For example, consider the following real-life scenarios:

• A female sailor had to have a fallopian tube removed, but military surgeons left five sponges and a plastic marking device in her abdomen, where the remained undetected for months.  Finally, her resulting complications forced a second surgery to remove her other fallopian tube, which left her infertile.  Her "compensation" for this medical malpractice: $66 per month in disability pay.

• A Lieutenant Commander spent 11 months with red lesions from his legs to his torso that a doctor classified as eczema. It was correctly diagnosed as cancer shortly before he died.

• An Airman was turned away twice by a military hospital that told him his intense stomach pains was nothing more than stomach flu.  He died of a bowel obstruction.

• A Naval Petty Officer went to a military hospital with pneumonia, which is treatable with antibiotics.  However, the doctor left it untreated, and the patient suffered brain damage.

• An Air Force Staff Sergeant had appendicitis but was repeatedly misdiagnosed and sent home with some antibiotics.  After finally collapsing at home, he was rushed into surgery, but he came out brain-dead. It's alleged that a series of malpractice led to his death, including the use of a pediatric rather than an adult device to open an airway when he had trouble breathing.

Both liberals such as Justice John Paul Stevens and conservatives such as Justice Antonin Scalia have denounced the Supreme Court's continued use of the Feres Doctrine, as have dozens of lower court judges.  This doctrine has done more harm to military personnel and families than any court-made doctrine in the history of this country.  If members of Congress truly want the best for our troops, they should start by giving them the same legal protections as the the non-military citizens that they are protecting.

Source:  "What Our Soldiers Really Need: Lawyers" by Prof. Jonathan Turley, published in USA Today.

Family Agrees to County's Settlement in Death of Teen at State Boot Camp

The family of a teenager who died after being roughed up by guards at a state-supervised boot camp have agreed to a $2.4 million settlement from Bay County, Florida.  The family had originally sued for $40 million, but will be receiving a total of $7.4 million, of which $5 million is being fast-tracked through the legislature.

A report said seven guards at the sheriff's boot camp in Panama City, engaged in "abusive and inhumane" behavior when they struck the teen with fists and knees, knocked him to the ground, and held ammonia capsules under his nose.  The guards and a nurse who watched have been charged with manslaughter. All pleaded not guilty last month. They face up to 30 years in prison if convicted.

Source:  "$2.4M Settlement in Fla. Boot Camp Death" by Brent Kallestad, publishd at Forbes.com.

Class Accuses Department of Education of Overcharging Borrowers

A lawsuit against the U.S. Department of Education alleges the agency overcharged millions of Americans with student loans over the past decade. Lawyers representing the class claim officials were repeatedly warned that they were breaking the law. According to the lawsuit, the problem is attributed to a computer glitch that caused more than 3 million borrowers to be billed hundreds of millions of dollars more than what they owed. 

Source:  "Lawsuit Says Education Dept. Overcharged on Student Loans" by Amit R. Paley, published in The Washington Post.

State House Awards Man Damages for Wrongful Imprisonment

A 46-year-old man who was exonerated of rape charges by DNA evidence after being imprisoned for 25 years. The GA House agreed to pay the man $1.2 million for lost income, personal injury and other damages. Before being convicted, the rape victim identified him from a lineup despite her earlier description that the rapist was much shorter.

Source:  "Georgia: $1.2. Million for Wrongful Imprisonment"  published in The New York Times.