Sunday, September 23, 2007

The rule of law is in shambles

In The Baffler No. 17, Thomas Geoghegan presents a fascinating perspective on the state of the rule of law in America. It is not a good state according to Geoghegan, and this is so because, as a labor lawyer, he has watched the gutting of the United States federal civil service, where administrative and regulatory agencies charged with oversight of all kinds have been systematically rendered nearly useless by 30 years of a constant right wing assault on domestic government budget. This has been accomplished quite silently, of course, and Grover Norquist's prescription for government -- "drown it in a bathtub" -- appears to be nearly filled.

Georghegan points out that the last peg of accountability left to American citizens in keeping the corporations even remotely responsible is tort law; the ability to sue companies because they easily and jauntily forsook government regulations and endangered the public. Because of this, it is no surprise that the GOP, led by the indefatigable charlatan in chief, George Bush, have been crusading against those pesky trial lawyers and insisting on "tort reform." By which they mean, severely limit punitive awards handing out by juries.

Having just read Geoghegan's "The Rule of Law in Shambles," it was remarkable to see, the very next day, a front page story at the New York Times about nursing homes being bought up by private equity firms, with predictable results:

The facility’s managers quickly cut costs. Within months, the number of clinical registered nurses at the home was half what it had been a year earlier, records collected by the Centers for Medicare and Medicaid Services indicate. Budgets for nursing supplies, resident activities and other services also fell...
Much of this violated federal regulations, as mandatory nurse/patient rations were treated more as ignorable suggestions and, with yet more grim predictability, patients died in the midst of a stye.
Regulators repeatedly warned the home that staff levels were below mandatory minimums. When regulators visited, they found malfunctioning fire doors, unhygienic kitchens and a resident using a leg brace that was broken.

“They’ve created a hellhole,” said Vivian Hewitt, who sued Habana in 2004 when her mother died after a large bedsore became infected by feces.
Note again, as Geoghegan has, that the regulatory bodies have no ability to enforce compliance with these regulations. On the happy side of this equation, the investors "were soon earning millions of dollars a year from their 49 homes."

As noted, this is really par for the American course. These companies can and do willfully ignore federal regulations because they know, perhaps more than anyone, that the thirty years war on government agency has rendered it inefffectual and entirely unable to oversee or enforce those regulations.
managers at many other nursing homes acquired by large private investors have cut expenses and staff, sometimes below minimum legal requirements.
The only real recourse left those suffering at the hands of these piranha is the lawsuit.

But now even the lawsuit is being marginalized even without "tort reform" which has momentarily faded from the public sphere. Uncontented with the prospect of facing big awards for wrongful death lawsuits, the private equity firms have gone to some length to make such lawsuits dificult.
In the past, residents’ families often responded to such declines in care by suing, and regulators levied heavy fines against nursing home chains where understaffing led to lapses in care.

But private investment companies have made it very difficult for plaintiffs to succeed in court and for regulators to levy chainwide fines by creating complex corporate structures that obscure who controls their nursing homes.
There is no rule of law here. All that is left is the rule of the lawsuit. But now that final ex post facto recourse in law is slowly being dismantled. And then what? Corporate America runs amok, killing and maiming in the name of expedient profit, arguing that "the market" will correct to the proper course. But there is no proper course here, only a remorseless tack of impunity, carcasses strewn in the wake of a very sick ship of state as it plies an ocean of avarice and plumbs the depths for profit.


Blogger spiiderweb™ said...

I have questions for which I'm sure you have the answers.

Much of this violated federal regulations, as mandatory nurse/patient rations were treated more as ignorable suggestions and, with yet more grim predictability, patients died in the midst of a stye.

How is it "mandatory" rules can be construed as "suggestions"?

Is my dictionary out of date? Have the definitions we all know changed?

11:30 PM  
Blogger theBhc said...

As Georghegan points out, mandatory laws mean nothing without enforcement. There certainly was no enforcement, the companies ignore the warnings and people died.

I highly recommend Georghegan's article. You can't get on the web as far as I can see. You'll have to find a paper copy of The Baffler.

2:06 AM  
Blogger spiiderweb™ said...

Enforcement is mandatory as in a suggestion? Hahaha.

Thank you.

I often put things into parenting terms. If you say, "Do this or else". It means nothing if there is never an "or else".

With no consequences there's no point in setting rules.

3:47 AM  

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