Dr. Katz Defamation Case Against Me Gets Chucked

DrMicheaelKatz-Pinocchio

Justice Hart’s opinion of Dr. Michael Katz

Ahh, the sweet smell of victory. Not that I ever doubted it. But it is nice to see this over so quickly.

So. You remember that idiotic defamation case against me by New York orthopedist Michael Katz? He was the one that was called a liar by Justice Duane Hart over and over and over and over and over again. The one that dealt with his testimony during a medical-legal exam, where he said it was likely 10-20 minutes long but a surreptitiously made video showed that the actual examination part was only one minute and 56 seconds?

Yeah, that Dr. Katz.

And then he sued me for reporting on what transpired in the courtroom? Yeah, that lawsuit. (See also, opinions on suit by Scott Greenfield and Marc Randazza.)

Effective today, that suit has been chucked — that’s a legal term of art — by New York County Justice Cynthia Kern.

Why was it chucked? Well, it seems that reporting on what happened in a courtroom is fair game. We have those law thingies that protect us for that. Specifically, New York Civil Rights Law 74, which reads:

A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.

Oh, that law.

Citing to Dr. Katz’s own complaint, which sets forth ad nauseum all of the eviscerating comments Judge Hart made about Dr. Katz being a liar, Justice Kern dismissed the case for failing to state a claim. In other words, we accurately reported what transpired in court, that Justice Hart called him a liar, ergo it’s impossible to make a claim.

Dr. Katz also conceded that Justice Hart threatened to report him to the District Attorney to investigate perjury, the Office of Professional Medical Conduct to investigate action against his license and to the the Administrative Judge for potential civil contempt.

And when I use the word eviscerating above, I am quoting Justice Kern on page 3 of her decision. Katz Case Chucked

Specifically, Judge Kern held that I, and my co-blogger for those posts Samson Freundlich, were immune from suit because the comments we made here were  ”fair and true reports of Justice Hart’s findings and assertions made during the course of the proceedings.” (p. 9)

And I kinda liked this quote:

Indeed, a side by side comparison of the posts, specifically the statements identified by the plaintiffs in their complaint, with the proceedings transcripts…clearly reveal that Turkewitz and Freundlichs’s reports of the proceedings accurately reflect Justice Hart’s statements.

The court next addressed those statements that were not facts, but opinions. And you know where that goes, don’t you? Chucked. They are “nonactionable as they are constitutionally protected assertions of opinion.” (p. 10)

Two quirks to the opinion that might interest others: The court held that the standard for suing someone for comments on the Internet is higher than if the comments were made in a “physical official publication.” Because Internet.

Second, I thought I had a very strong case to have the lawyer and law firm sanctioned, since there was no colorable way they could succeed. Katz conceded in his very own complaint that Justice Hart made those lacerating comments about him. Yet the court, without discussion, simply denied my motion for sanctions. If Dr. Katz is dumb enough to appeal, I will press the point again.

All in all, every time an idiotic defamation case against a blogger gets tossed out, it’s a good day for free speech.

Now if only we could do something about our judiciary’s deep reluctance to sanction clearly frivolous lawsuits…

Being a Witness Isn’t Easy (My Turn To Be One)

Pedestrian KnockdownI’m going to start this piece in New Rochelle where I recently saw a pedestrian knockdown. I’ll end at the University of Virginia discussing a now (in)famous rape story reported by Rolling Stone. I hope to make it there in one piece.

On Friday night I became a witness. It was dark. It was raining. The pedestrian who came into contact with the vehicle in front of me was wearing dark clothes and wasn’t in a marked crosswalk.

You can see him here lying in the roadway in this photo I took a few minutes afterward as we waiting for the police. The two people standing on either side of him in the headlights were Good Samaritans trying to make sure he wasn’t further injured by another car.

We were both making left hand turns onto this divided road.

Why blog about this? Because witnesses are important in cases, civil or criminal. Lawyers question witnesses all the time, to get information or dissect fact from fiction.

And as I reflected on what happened, I could hear the me cross-examining myself in my own mind over this incident.

And the funny thing is, I would struggle to answer many of the questions. One reason is that, before the accident happened, I had no reason to “remember” that which was ordinary.

An example of a typical question asked of a witness in this plain-vanilla incident — and I call it that because there was no crime involved nor life-threatening trauma:

When did you first notice the car in front of you (that came into contact with the pedestrian)?

Answer: How the hell should I know? Because until something “different” happened, there was no reason to notice in the sense of discriminating that one car from any other car. When we drive we certainly see that there are cars near us so that we can avoid collisions, but unless one of the cars sticks out as “different” — perhaps a 1950s white Cadillac with big tail fins — we don’t really notice in the sense of looking at it with a view toward detail.

And when something does happen — in this case the car in front of me running over the foot of the pedestrian — we are so stunned that something has happened that we don’t sit there cataloging in our mind that which we’ve just seen. It’s more like, holy crap, did that really just happen?! The “story” is almost like fragments in the brain since we weren’t looking for it to happen.

Then comes the time of reconstruction in our minds when we try to fit all the pieces together. And I think reconstructing is a better word than remembering, as we start to use circumstantial evidence to put the story back together in our brains. So, for example, I didn’t notice the other car as I waited at the light to make the turn that resulted in the pedestrian being hit, but I know in hindsight that, since I was directly behind the red car at impact, I must have been directly behind her moments before waiting at the light.

Frankly, if I hadn’t snapped that picture you see here, I wouldn’t have even remembered the color of the car. Or the clothes the people were wearing. These things might have been right in front of my nose, but because they were “normal” they were unmemorable. Yet witnesses are asked to remember such details.

In addition, my ability to recollect is colored by the my own experiences: that of personal injury attorney. Who was at fault? A doctor behind the wheel may have observed (or remembered) different things that I did. Perhaps a tailor would seen yet different things about the people.

And no doubt the view of the incident differs further from the perspective of the pedestrian, the driver, and the two Good Samaritans. Like the old Japanese movie Rashomon — which should probably be required viewing for any trial lawyer — we all see different things from our own perspectives. This is neither good nor bad; it just is.

Now lets take this one step further, because I was a mere witness that was not directly involved, unlike an incident I wrote about 7 years ago. (Or at least I wasn’t involved Friday until the other driver backed into me as she rolled back off of the guy’s foot.)

I didn’t have my heart racing as an actual participant. I was not stopped dangerously on a bridge. There wasn’t a massive surge of adrenaline that shot my nervous system into overdrive. But if I was actually involved or in a dangerous spot? That would have surely have effected my mental state and made the act of remembering different.

And if I was the victim of a violent crime, then what? There’s a pretty good chance things would become even stranger to remember if the assault was sudden, as my mental state would be significantly altered. Whether it would be sharper or more confused, I don’t know and I hope not to ever find out.

Throw drugs or alcohol into the mix, and now what? Reconstructing could become even more complicated.

Remember, my event on Friday night should theoretically be  relatively simple: I’m not directly involved, not assaulted, without any artificial impairments. But it isn’t.

Criminal defense lawyers, of course, deal with these issues all the time, not just with the nuanced facts of a crime, but with the (mis)identification of people by witnesses.

And now we transition to Virginia: What do we see now with the roaring debate over the Rolling Stone article about the University of Virginia women named “Jackie” who said she was gang raped as part of a frat initiation? And Rolling Stone then pulling back on the story saying that they should have been more careful in checking sources?

Should we believe her despite Rolling Stone backing away from the story for failing to properly fact check? Should we believe others who’ve made claims of violence against them? Should we believe those who claim they were falsely accused in various crimes?

Here’s a thought: How about instead of electing who to “believe” we just listen. And understand that news accounts rarely present all the facts. Or are only partially accurate.

Ignore those who tell you who you should believe when they have political agendas. Because accurately remembering sudden and traumatic events can be difficult. Even for simple stuff.

There is no reason to jump to a presumption of guilt against those accused. Nor any reason to disbelieve those that claim to have been assaulted.

It’s good to remember the false accusations of rape against Duke lacrosse players. And equally good to remember that those “guilty” of the Central Park Jogger case were actually innocent, with convictions based on false confessions by juveniles. And likewise good to remember that there are countless cases of rape and sexual assault that do take place, many of which are never reported. All of which involve witnesses of one kind or another.

Listening is good. It isn’t necessary to instantly have an opinion on who to believe, or not believe, especially when every single case is different and facts are often in dispute. We don’t usually get the benefit of being a fly on the wall, or having that God’s eye view of what happened. Asking questions and being quizzical are good; forming instant opinions and being adamant, not so much.

I am forever mindful of “subway vigilante” Bernhard Goetz being on trial, a white man who shot four black teens in the subway that, he said, threatened him. Outside the courthouse during the trial were two groups of protestors: Those who called him a hero for standing up to thugs, and those who accused him of being a murderous racist that should be jailed or worse.

But the protestors outside the courthouse all had a couple of mportant things in common: None of them were actually in that subway car and truly knew what happened, nor were they even in the courtroom listening to the witnesses try to describe a few moments of unexpected trauma.

“& Associates” as an Ethical Violation Gets a Courtroom Visit

Ethics-700970-774132Five years ago, when Sonia Sotomayor came before the Senate Judiciary Committee for confirmation, she released a questionnaire that gave her legal history, and she revealed that she once had a firm called “Sotomayor & Associates.” The problem? There were no associates.

Oops. I wrote the piece up within a few hours of the document’s release, describing it as a one of the less serious pieces of misleading advertising that take place, but a violation nonetheless.

And there the post sat for a couple weeks until the Washington Times picked it up in an editorial. And then the New York Times did a big story on it (without attribution to me, thank you very much) a month after I did, complete with White House response.

But the most curious part of the episode was the White House claim that this wasn’t an ethical violation, raising the issue from an “oops” to a full-blown kerfluffle. They actually paraded out a defense of the clearly misleading practice by offering a written analysis by Hal R. Lieberman, a former disciplinary committee chief counsel in New York:

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications…In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

Lieberman was dead wrong, in my opinion, and I called this a lousy defense.

Well, the answer is now clear, for any lawyers that thought they could get away with puffing out their firm names to make them look bigger than they actually are. Yesterday the Appellate Division, First Department censured a lawyer over the use of “& Associates” when he had no associates; he was a solo practitioner (Matter of Cardenas).

To be sure, this was the least of the transgressions committed in the censure that took place, with the big issue being the apparent deliberate commingling of funds. For the non-lawyers that may be reading, that means the lawyer borrowed money for his own use from an attorney escrow fund where it was supposed to sit segregated.

But mixed into the panoply of charges was this clear and unmistakable bit, for violating:

Rule 7.5(b) (using business cards and letterhead listing his law firm as “Cardenas & Associates,” when, during the period at issue, he did not employ any associates)

It is highly doubtful a lawyer would be censured for this alone. But the rule is nevertheless clear. It is misleading to call your firm “& Associates” when there are no associates. And if the White House or any other authority tries to tell you otherwise, there is now a decision to point to.

 

Is Any Lawyer Advertising Good?

Running on Field NakedI’m not a fan of lawyer advertising. Likely because so much is dreadful  (though not all). Or ethically challenged.

But when The Fishtown Lawyers, Leo Mulvihill and Jordan Rushie, were contacted by the Philadelphia Eagles about advertising during their games, I think they missed the boat by saying “no” too quickly.

Maybe going over the top is OK — no, not with a flaming sledge hammer of justice.  Maybe you just have to go over the top the right way.

So I’ve taken the liberty of writing ad copy for their criminal defense firm…you guys can thank me later:
—————-

Have you been falsely accused of running naked onto the field in front of 50,000 people?

Were you busted for recycling your pre-game beers down from the upper deck perch onto the heads of  choir boys and nuns below while the video cameras rolled? But you thought it was fresh beer, so it was OK?

Did you dis a cop at a crowded tailgate party, “You can only catch me in your dreams?”  Before collapsing into a pool of your own vomit?

Call The Fishtown Lawyers, Mulvihill & Rushie, to help save you from such well-documented, though no doubt scurrilous, accusations.

That’s The Fishtown Lawyers, Mulvihill & Rushie, who know from personal experience that consuming a mere 5 – 10 drinks can make others level all kinds of false accusations against you.

Why the Fishtown Lawyers? Because representing yourself might not be such a hot idea.

And we promise we’ll be sober in court.
————

Too bad they don’t have the guts to run it.

Ebola and the Failure of Lawyering (Updated)

A member of Doctors Without Borders dons protective gear at the isolation ward of the Donka Hospital in Conakry, Guinea, where people infected with the Ebola virus are being treated. (Photo: Cello Binani/AFP/Getty Images)

A member of Doctors Without Borders dons protective gear at the isolation ward of the Donka Hospital in Conakry, Guinea, where people infected with the Ebola virus are being treated. (Photo: Cello Binani/AFP/Getty Images)

Gov. Chris Christie was the US Attorney for New Jersey. Gov. Andrew Cuomo was the Attorney General for New York. You’d think that, with those credentials, they’d be smarter.

Each of them knows that a long view must be taken with respect to many, many issues, often with extensive evaluation of complex issues.  It took them years, sometimes, to accomplish things with litigation.

As lawyers we cite to precedents that go back decades, sometimes centuries. This is part of critical thinking and analysis.

But when it comes to the Ebola virus, they’ve both capitulated to the concept of panic first and think second.

Both governors have now imposed a 21-day quarantine on medical workers who risk their lives to go to west Africa to help save lives and fight the virus. So in addition to an involuntary deprivation of liberty for those now returning, even if healthy, they have  also made the  job of helping more difficult for these particular brands of heroes. If a doctor or nurse was willing to squeeze out a 3-week trip to help, that just became a 6-week trip.

The ostensible reason is to make it harder for the virus to come here. But the result is the opposite.

Instead of fighting the disease where it is, it is now more likely to spread with less medical care. And folks who are visiting the region will simply vanish from sight (and potential monitoring) by routing themselves to other U.S. airports, via other countries, where they won’t be subject to the long arm of government.

Even if we stopped all people and flights, the proliferation of the disease if left unchecked would just as easily go to many a European or Asian nation. It could go anywhere, since disease knows no politics or borders.

Instead of 10,000 infected in Africa, it could grow to 1,000,000 if left unchecked.

The only logical answer is to stop the disease where it is. Does that mean risk that a few people might come back sick? Of course. But a few sick folks here now is a whole lot better than many sick people here later. It isn’t about picking a good course of action over a bad one, but picking the one that is less bad.

We should be encouraging people to help if they have the skills, not discouraging.

The short-sighted plan runs counter to the long-view training both Christie and Cuomo have as lawyers. They should both be embarrassed for their blundering pandering to the ignorant panicers.  The times call for the type of deliberative long-term evaluations and critical thought that they had been trained to do, and they failed.
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Updated: Elsewhere of interest on law blogs:

Experts Debate Legality of New Jersey’s Ebola Quarantine Policy (WSJ Law Blog)

Seized By Fear: The Ebola Quarantine(Simple Justice)

Constitutional challenge to quarantine unlikely to succeed (Volokh Conspiracy)

Which Privacy Protections Apply? HIPAA, FERPA and Ebola (HIPAA, HITECH & HIT)

Ebola and Privacy: Snooping, Confidentiality, and HIPAA (Daniel Solove)

 

RIP: Prof. David Siegel

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Professor David Siegel, from his Albany Law School biography page

Calling Professor David Siegel a giant of the New York legal world would not only be a bit trite, but would still be an understatement. His treatise on New York Practice, the bible of New York civil procedure, is a required text for anyone that works in this state’s courts on the civil side and is routinely cited by judges at all levels, both state and federal.

He died yesterday.

In an obituary at the New York Law Journal, former Chief Justice Judith Kaye is quoted thusly from a 2008 Albany Law School event honoring him:

“Who among us doesn’t know that he is the—absolutely the—preeminent authority on matters of civil practice in the entire universe?” Kaye said at the time. “There’s no one with a bit of good sense who would dare ever to cross you on matters of civil practice, David Siegel.”

Like many other local lawyers, I attended Siegel’s continuing legal education classes regarding our civil procedure many times. And here’s the thing: The guy wasn’t just smart and practical, he was funny.

That humor was reflected not only in his on-stage manner, but incorporated into his New York Practice book. I mean really, who the hell ever laughed out loud at something in a book about legal procedure? But Siegel could pull that off.

On a few occasions in this blog over the years I’ve mentioned that it sucks to be a test case, usually on the subject of our new and untested ethics rules regarding online conduct and solicitation. That mantra of “it sucks to be a test case” comes from Siegel, who used to preach that advice when lawyers would pose factual situations that might (or might not) comply with our procedure.

Ever the practical person, he knew that it wasn’t always whether some procedural issue would work or not, but that lawyers should avoid placing themselves into the position to have to make that decision. You might (or might not) win your test case, but it will cost you time, money and sleepless nights to get there.
——————–

From appellate lawyer Jay Breakstone:

I suppose it’s to be expected.  A lawyer dies and we all gather around and describe him in the most glowing terms, whether he was a saint or a nasty bastard.  Sometimes, it’s like being at Hitler’s funeral.  ”All in all, what can we say?  He was a hell of a dancer.”  At the time of death, there is always something nice to say about anyone.

But the recent loss of David Siegel is something else.  It is the true loss of someone we needed, not just admired.  Prof. Siegel was that one tool on the belt of every working lawyer that we couldn’t live without.

He was the Vise-Grip plier that could wrap itself around a particularly nasty question and break it loose from our own ignorance.  And, just like that Vise-Grip plier, he was always there.  Except for now.

To those of us who write about the law, David Siegel had a very unique talent.  The Professor could make the law understandable.  What a gift!  After all, this is not John Grisham writing about steaming plot lines and attractive anti-heroes.  This is New York practice, about as entrancing as a heartburn.  Yet, David Siegel made it sing.

How did he do that?  To this day, I do not know.  In the master’s hands, New York practice was just about the most interesting thing in the world.  It involved real people and real lawyers and real problems and, best of all, real answers.  Like some ancient prophet, Prof. Siegel revealed all that came down from on high to those of us who lived below.

I first came across Prof. Siegel at a bar review course in 1976.  They said that his course on New York practice was essential.  I think I paid extra to take the course and they were right.  He lectured in a style that can only be called “conspiratorial.”  This was a lawyer talking to other lawyers (almost.)

It was him and us against the world.  At last, this was the real thing.  No theories, no big shot federal jurisdictional issues; this was blue collar lawyering at its best.  We listened enraptured, for we quickly understood that if by some slight chance we actually passed the bar exam, this was what we needed to know on the day after our admission. I can still hear David Siegel today:

“One day, as young lawyer, your boss will send you to court.  How exciting!  You will carry the nice new briefcase your parents bought you and head off to the courthouse at 60 Centre Street.  You will walk up the steps with the sun shining, ready to do battle for justice.  You will enter the beautiful lobby and, just as quickly, you will descend into the bowels of hell.  You have been sent to the Special Term, Part I courtroom.

As you open the swinging doors, you will be assaulted by a scene out of Dante’s Inferno.  Hundreds of lawyers will be there, shouting out the name of hundreds of other lawyers.  You will sit down in the back of the courtroom and wait for the judge to take the bench and call your case.  But there will be no judge to hear your application for an adjournment.  Only the clerk will take the bench and he will begin to rattle off case after case in the order they are on the calendar taped to the wall outside the door – - the calendar you did not notice when you came in.  So, you will listen for your case to be called.

Quickly, the case names go by, and then, you think you hear yours!  You walk to the front of the courtroom, only to realize that in the time it took you to make that trip, fifty other cases went by.  There is no one to talk to; you are alone in a crowd, secure in the knowledge that once you get back to the office, you will be fired and have to pack up your desk in one of those cardboard boxes and go home, telling your mother you’re not a lawyer anymore.”

It was then that David Siegel, as he did until the day he died, rode in like a knight on horseback and saved our lives:

“This is what you have to know:  There are only three things you may yell out in Special I.  Nothing else will register in the mind of the clerk.  He or she is only programmed to respond to these three magical phrases.  Write them down now.  Memorize them.  Never forget them.   Here they are:  Ready for;  Ready against; Application.”

Prof. Siegel, I have never forgotten those words . . . or any of yours.

Loving Your Office

woolworth-building-at-night-425

Photo by Chris Petsos Photography. Many more great shots at his site. Click on image above to get there.

Lawyers have to make decisions on their offices: Make it nice? Or make it inexpensive? Rarely do the two concepts coincide.

We spend a lot of time in our offices.  Other than our homes, this is it.

This came to mind when I saw an article in the Sunday real estate section of the Times on my old stomping ground: The Woolworth Building.

My office was on the 8th floor, overlooking Broadway (and ticker tape parades) and City Hall Park (and the people who’d shout and scream at Mayor Guiliani).

I loved that building. As I walked into the office each day through the lobby of this gothic style skyscraper — once the world’s tallest, with its vaulted mosaic ceiling, gargoyles, and crowds of tourists gawking at its magnificence — I couldn’t believe I actually worked there.

And I enjoyed going in to work. It made me feel good to be there. I was productive. And it was a fine contrast to the windowless office that I started my solo career in, with a big mirror that I bought to give it the illusion of something bigger than a glorified closet.

Since leaving the Woolworth, each of my offices has been nice. Spacious. Welcoming. With pictures of my family filling the walls.  The diplomas are on the wall behind me, where I don’t need to look at them.

Today’s rumination isn’t just for those looking for offices for themselves, but those in charge looking for their staff. Do you want them to look forward to work or do you want them miserable coming in? While this formula isn’t ironclad, I think it has a lot of validity, both for lawyers and staff:

Comfortable office = productive lawyer

Don’t be cheap unless you absolutely have to. Remember how much time you’ll spend there, and make sure it’s a place you want to go to each day.

Apple, Privacy and Law

ApplePayYesterday Apple had its massive product presentation and one of the products it announced was a new pay system for credit cards, Apple Pay. Load the cards into an iPhone, and then just wave them in front of a techno-gadget at the check-out counter and you’re done. Simple.

Why might this be important? Currently, big business is tripping all over itself to gather as much information on you as possible, taking away big chunks of your privacy.

A 2012 New York Times piece on Target explained how, based on the buying patterns of a teenager — unscented lotions, vitamin supplements and other non-pregnancy related products — it knew she was pregnant early on and sent coupons for maternity clothes to her home. Her father was livid. And unaware of his daughter’s state.

Target is obviously not alone in doing everything possible to create massive data banks about you. Data banks that, perhaps, can then be hacked into (or subpoenaed).

Personally, I find myself using cash more and more often, as I cherish my privacy.

But Apple Pay may reverse that direction. According to CEO Tim Cook, the iPhone encrypts the card numbers, and when you make a purchase, the store can’t attach product information to your purchase.

That’s because the store doesn’t even get your name, much less your card number. Hacking the store’s computers should keep the consumer safe (again, see Target, and its loss of 40M credit card numbers).

And even Apple doesn’t get the information. From the Apple website, two key paragraphs:

Apple doesn’t save your transaction information.With Apple Pay, your payments are private. Apple doesn’t store the details of your transactions so they can’t be tied back to you. Your most recent purchases are kept in Passbook for your convenience, but that’s as far as it goes.

Keep your cards in your wallet. Since you don’t have to show your credit or debit card, you never reveal your name, card number or security code to the cashier when you pay in store. This additional layer of privacy helps ensure that your information stays where it belongs. With you.

If this works as planned, it has the potential to (partially) reverse our headlong dumping of personal information about ourselves into the computers of Big Business, both with respect to the items we buy as well as the cards we use.

The less data that exists in the data banks, the less it can be abused.

Joan Rivers Death and ‘Risk of the Procedure’

Joan Rivers in 2010, via Wikipedia

Joan Rivers in 2010, via Wikipedia

The phrase grates on me big time, that a poor medical outcome was a “risk of the procedure.” And so it is now that we see in a couple places with the death of Joan Rivers after she stopped breathing during an out-patient endoscopic procedure, that the phrase “risk of the procedure” is popping up, as if to excuse what happened.

One leading possibility for death, of course, is that it was related to the anesthesia, which Ms. Rivers likely had numerous times considering all the jokes she made about her own plastic surgery.  A sudden allergic reaction wouldn’t exactly be on anyone’s list of possible causes.

At HCP Live, a medical website, they first look at the incidence of cardiac arrest from anesthesia, and it looks positively frightening, by starting out like this:

Although perioperative cardiac arrest due to anesthetics occurs just 10.8% of time, according to the Mayo Clinic, it represents the most serious complication and can have devastating results, as witnessed by the recent death of comedian Joan Rivers.

Wow!!! 10.8% of the time?!?

Well, not quite. That would be 10.8% of all cardiac arrests, which itself are quite rare. Not in the HCP article, but deep into the linked Mayo Clinic article is this:

At the Mayo Clinic, the incidence of arrest primarily attributable to anesthesia was 0.5 per 10,000 anesthetics, which represented 10.8% of cardiac arrests that occurred preoperatively…

So, the incidence of cardiac arrest is actually exceedingly rare.

Moving on, the article starts goes to the potential medical excuses for what might have happened:

The surgery was apparently a minor, elective procedure, but the complications Rivers suffered reminds patients and providers that there are always risks to be considered during surgery. Some of the factors that can increase the risk of cardiac arrest during surgery include coronary artery disease, cardiomyopathy, congenital heart disease, and heart failure.

And what is missing? The failure to properly ventilate or medicate the patient.

Want to know why excusing a bad outcome by simply saying it is a risk of the procedure is so awful? Think about getting hit in the rear by another car while driving. Hey, you knew that others on the road might not be paying attention, didn’t you? Isn’t an auto collision (not an accident) one of the risks of being on the road? Do we excuse that inattentive driver because you knew that being on the road was risky?

Senator Rand Paul pulled a similar stunt with BP’s gulf oil spill, dismissively saying “Sometimes accidents happen.” Sure.  Or maybe the company acted with “conscious disregard of known risks.

Sometimes a deer bolts into the road and can’t be avoided. But sometimes, someone is following too close and rear-ends you because they didn’t leave enough room to stop.

What is the standard here for the Rivers matter in evaluating possible medical malpractice? The standard to look for by investigators, be they New York’s Department of Health (now underway) or the family’s private lawyer, are twofold in looking at the acts or omissions of the medical staff:

Was the act (or omission) a departure from customary and usual medical practice?

Was that departure (or omission) a substantial cause of injury/death?

Simply calling something an “accident” or saying it is a “risk of the procedure” is the type of language that immunity-seekers use (i.e. defense lawyers in the courtroom). But it isn’t the law.

The press should take note in writing stories on the subject, and be careful of the highly dismissive “risk of the procedure” lingo that may flow from some places.

GPS is Making Us Dumber (And other thoughts on the law)

GPSMakingUsDumberSome folks want directions when they go someplace new. Others want a map.

The directions tell you lefts and rights. The map tells you where you came from and where you need to go.

Many GPS devices simply tell you to make those rights and lefts. They don’t tell you where you are. And thus we become unthinking followers.

GPS devices were wrong at least twice on last week’s family vacation in Maine, once while I followed a family member and a second time while sitting shotgun. The GPS said to go one way and my brain said to go the other. The only reason I overruled the GPS directives was because I’d looked at a map before leaving.

So how is this related to law? All too often I see it at depositions, where the other lawyer comes prepared with page after page of questions to ask — the same questions at every deposition.

The lawyer follows the directions given, dutifully jotting down the responses.

The highly detailed outline is like the GPS. It tells you which questions to ask, but doesn’t give you a road map of where you actually need to go.

But the road map exists. It’s in the instructions that the judge will give to the jury at the end of the case. This is the map of what you need to prove, and thus needs to be the focus of the questions. It isn’t just that you need those instructions before the deposition, but that you need them before you file suit (or when retained to defend).

This requires thinking, not following. The lawyer that thinks, instead of follows, will do a deposition that is half as long and twice as useful.

It’s OK to have a general outline, of course, as you wouldn’t want to miss out on an important topic. But becoming a slave to the outline is the danger. Topics are good, specific questions from stock outlines, not so much.

My advice: Leave the directions, take the map.

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