Joan Rivers in 2010, via Wikipedia
Over the years I’ve had a few occasions to take my own to task over crappy lawyering. Today, however, is not one of those days. If I’m going to spend time skewering bad stuff, I should also laud the good stuff.
Following the death of Joan Rivers during a routine endoscopy in 2014 at a small private clinic, her daughter Mellisa went out and hired counsel to investigate and bring suit.
Deaths during routine procedures are not supposed to happen, so hiring counsel was logical. If not, they may never have learned about the breaks of protocol that occurred. From the New York Times:
Ms. Rivers was to undergo a laryngoscopy, an examination of her voice box and vocal cords, and an endoscopy, which involves looking at the upper digestive system and is performed under anesthesia, according to a report by the New York City medical examiner’s office, which investigated the death.
According to the malpractice suit, the doctors were so eager to please that they violated protocols, and at one point [Medical Director] Dr. [Lawrence] Cohen pulled out his cellphone and took a photograph of Ms. Rivers on the operating table.
Enter, stage right, Ben Rabinowitz and Jeffrey Bloom from the highly respected firm of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. The case has now settled — exceptionally quickly, I might add — and is in the news again.
But this is the part that really jumped out at me from the Times article, and the reason for today’s piece:
The lawyers for the Rivers family, Jeffrey Bloom and Ben Rubinowitz, said they did not reveal the amount of the settlement because they wanted to focus on improving patient care. But they said it was “substantial.”
That’s right, there is no settlement number in the article. No blaring heading with a ginormous number, as there would be with 100% certainty if the amount was revealed. Instead, the lawyers focused on the fact that patient safety was at issue.
Now, if you Google the story, you’ll see tons of stories that focus on patient safety.
While the settlement amount may one day come out, as the will (I presume there is a will) gets probated, it was not part of the initial round of press. The information that comes out later will talk about the size of the overall estate (her estate is valued at $x million — as opposed to being simply about the lawsuit), and the settlement amount will be partially buried as part of another story.
Now let us contrast this with the conduct of the lawyer that sued Red Bull for $85M or the lawyer that sued on behalf of a dog bite victim for $30M. Both created screaming headlines and a fusillade of negative comments from those that saw the stories. Both of those cases served to diminish, devalue and demean the practice of law and the people that we represent, due to the outlandish claims. Because they used outrageous numbers (when they were not permitted to use any number at all) the story ledes were about those numbers, and not the issues of safety.
The really important stuff for the Rivers suit, from the point of view of how to practice as a lawyer, was at the very end of the article:
Melissa Rivers and her lawyers, however, said they did not want the focus to be solely on what happened to the famous entertainer.
They said that the case highlighted the lax oversight at outpatient surgical centers, and that they would be working to advance legislation in Albany to ensure that these clinics operate under the same minimum safety standards as hospitals do.
“Profit cannot be placed above patient safety,” Mr. Rubinowitz said.
A statement Melissa Rivers put out said:
“Moving forward, my focus will be to ensure that no one ever has to go through what my mother, [my son] Cooper and I went through and I will work towards ensuring higher safety standards in out-patient surgical clinics.”
It just made me want to stand up and applaud, which was kinda tough since I was in a car at the time, but you get the idea.
This part about publicizing the money, by the way, is a tough line to walk on sometimes, as both their firm and mine (and many, many others) talk about past results on our websites, so that potential new clients know what kind of experience we have. As a general practice though, it is without names.
But when it comes to the press we must behave differently. The web sites, after all, are only read by those that are actively looking to hire counsel, whereas news stories are pushed into the public light and help to shape public opinion. And when I write public opinion, I mean that they shape the minds of potential jurors.
Public safety needs to be the theme of the news stories, just as it is a theme in jury selection and trial. That is why we talk, in the medical malpractice world, of deviations from customary and usual practice. Because the customary and usual practice equals safety.
And then there was this from the Times:
The doctors agreed not to contest the suit’s findings. A spokesman for Yorkville Endoscopy said: “The parties agreed to settle this case to avoid protracted litigation. We remain committed to providing quality, compassionate health care services.”
That is another highly unusual bit, as almost every settlement agreement has some statement about the defendants not admitting liability and stating that this is merely a business decision. This appears to be absent.
And finally, a third unusual piece — an actual whistle blower’s report from inside the center:
The main anesthesiologist, Dr. [Renuka] Bankulla, concerned that she would be blamed in the death, wrote out five pages of notes on the day of the procedure detailing what she saw and heard. Lawyers for the Rivers family said they were greatly aided in their case by Dr. Bankulla’s notes.
I’ve only had one case in 30 years where a doctor did a tell-all operative report from the inside. Other lawyers I shared it with said they had never seen anything like it, despite practicing even longer than I.
But every so often there will be doctors on the inside, who have seen the catastrophic failures, and elect not to be in on the cover-up. They object to the White Coat of Silence and become our Serpicos. It’s exceptionally rare, but it can happen.
And so, on this Monday morning, a tip of the hat to counsel for the estate of Joan Rivers. Not for how they handled the case, but how they handled the press. It’s a model others should follow: Focus on the safety, not on the number.