From the New York Personal Injury Law Blog, the week that was:

• We start with the truly bizarre, a post by Ben Glass (InjuryBoard:Northern Virginia) that discusses one of the more bizarre laws he has seen proposed, that would grant immunity in Virginia for space travel;

• There is a new "study" from right wing Pacific Research, that claims tort cases, in addition to a parade of other horrors, are killing people. The Blawgletter apparently disagrees and starts the road to debunking the "study," TortDeform chips in early with a list of other debunkings on the subject.

• The Trumatic Brain Injury Blog reports that, according to the U.S. government, the number of serious head injuries is on the rise;

• Howard Bashman's How Appealing reports that the Connecticut high court adopted a far more plaintiff-friendly rule in negligence cases involving so-called self-service operations, whether they are big-box department stores or small cafes with salad bars. Story in the Hartford Courant;

• David Swanner at the Trial Lawyer Resource Center discusses why it seems it is so hard to move cases;

• The Total Injury blog gives an update on the results of a fatal 2005 train wreck in Mississippi and the report of the National Transportation Safety Board;
  

• Do doctors who work in administrative positions for health insurers break the Hippocratic oath when they work to deny coverage? So says a column in the Boston Globe, but David Williams at the Health Business Blog has a rebuttal;

• Merck wins the latest round in the "Judicial Hellhole" of Madison County, Ill (WSJ Health blog);

• Anyone who does personal injury must deal with the miserable subject of liens. Michael Stevens at the Kentucky Law Review does a great round up of posts and materials on Medicaid subrogation in light of Alhorn v. Arkansas;

• New York firm Napoli Bern Ripka found themselves in a story regarding possible ethics violations by apportioning the settlement in a manner designed to inflate the firm's share of the funds, as Andrew Bluestone recounts at his New York Attorney Malpractice blog;

• Anthony Sebok at FindLaw discusses The Issues Raised by the Recent Proposal to Reopen the 9/11 Victims Compensation Fund: (I can't mention the VCF without tipping my hat in a very big way to Special Master Ken Feinberg, who I heard personally handled over 1,000 of these heartbreaking claims);

• Medical blogger Flea didn't like one of my posts regarding the cross-examination of attractive physicians and responded with Meet the Turk, setting off a small doctor-attorney brouhaha that now encompasses posts and commentary on at least five blogs, the others being Simple Justice, Sui Generis, and Creating the Godcomplex. Decide for yourself who presents compelling logic and who presents snark.
  

• And just in case you want some additional reading, the Law Review of New York Law School has an edition all about the plaintiff's bar, for which I've printed a small outake and links to the various articles: Plaintiffs Personal Injury Attorneys Get Analyzed.

Enjoy the weekend.

Labels: Personal Injury Law Round-Up

The New York Law School Law Review's latest edition is all about the plaintiff's bar. The opening to this article should whet the appetite for a full read, and should be interesting to those who think we have too many lawsuits. The article is (for those non-lawyers peeking in today) deeply foot-noted to supporting research:

In any given year, as many as 98,000 people may die from preventable medical errors. This is more than the number of people who die from highway auto accidents, workplace accidents, and breast cancer combined. Yet according to the Bureau of Justice Statistics, only 1156 medical malpractice cases were litigated in the seventy-five most populous counties in 2001. Of those, only one-third involved a wrongful death claim. Why is there such a discrepancy between the number of wrongful deaths and the number of cases litigated?

One possible answer is that lawyers simply decline to file a large number of potential cases. Plaintiffs personal injury lawyers are commonly portrayed as greedy "ambulance chasers" who will take any case regardless of merit. However, a number of studies have shown that personal injury lawyers are highly selective about the cases they choose to accept. Although negligence victims do sometimes successfully pursue their cases without a lawyer, it is generally accepted as a truism that lawyers are a necessary, but not sufficient, condition for obtaining compensation through the civil justice system. Thus, like other professionals who control people's access to socially valued resources, plaintiffs' lawyers act as "gate-keepers" to justice. Yet despite this important implication for social justice, only a small handful of studies have sought to uncover the process by which lawyers decide which cases to accept and which to decline. In this article, I seek to replicate questions examined in these earlier studies with a specific focus on how the more elite stratum of plaintiffs' personal injury lawyers go about the task of case selection.

These are the articles:

How Social Hierarchies Within the Personal Injury Bar Affect Case Screening Decisions, by Mary Nell Trautner (intro is above);

How the Spider Catches the Fly: Referral Networks in the Plaintiffs' Personal Injury Bar, by Sara Parikh;

Texas Plaintiffs' Practice in the Age of Tort Reform: Survival of the Fittest – It's Even More True Now, by Stephan Daniels and Joanne Martin;

Blame it on the Bee Gees: The Attack on Trial Lawyers and Civil Justice, by Robert S. Peck and John Vail;

How the Plaintiffs' Bar Bars Plaintiffs, by Richard L. Abel

(hat tip to the Tortellini)

Labels: tort reform

In a brief dated yesterday, New York's Attorney General responded to the lawsuit brought by Public Citizen and an upstate law firm to challenge the new adverting rules for attorneys (see: Skadden Website and Others Named In Ethics Lawsuit). The reply brief was emailed to me and can be found here: ResponseMemo.pdf

One of the subjects I had harped on was how vague the rules were, so that it was impossible to know if they were being violated or not. This one in particular, prohibited:

"techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence." 22 NYCRR 1200.6(c)(5)1

Having pondered that question when I wrote Is My Family Photograph An Ethical Violation in New York?, I opened the brief and did a search for the word "vague" to see how the State responded to the plaintiff's brief on the critical subject.

But my search came up blank. The State didn't respond to the issue, which speaks volumes to me on how indefensible the point is.

In fact, the first point they make -- and indeed it appears to be the only one outside of the procedural issues that fill most of the brief -- is that the ads at issue were false. Why? Because the State has taken the position that humor is not allowed. Think I'm kidding? Here it is at pp. 12-13 of the brief:

Defendants suggest to the Court that the advertisements submitted by Plaintiff are not a complete catalog of their television advertisements. However, in just the few submitted there are patent falsities. Irrespective of whether Plaintiffs intend their commercials to be humorous, it cannot be denied that there is little likelihood that they were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style. These absurdities, however, are not the most disturbing misrepresentations to be found in these advertisements.

In the alien advertisement, Plaintiffs suggest that damage to the alien's spacecraft should be paid for by an insurance company, to which the alien responds that the insurance company said "no way." In response, suggesting that this space vehicle insurance company can be compelled to pay for damages (without any indication of legal liability), attorney Alexander responds by saying "then we'll get them to say 'yes, way'" followed by attorney Catalano saying "because we're the heavy hitters."

Without support of any kind, Plaintiffs claim that use of the term "heavy hitters" only suggests their knowledge of the field in which they practice. However, a "heavy hitter" is defined as either "a baseball player who makes many extra base hits [or] a very important or influential person." Webster's Encyclopedic Under Bridged Dictionary of the English Language, 1996. Rather than suggesting knowledge, Defendants submit that the use of the term in conjunction with a suggestion that they are able to compel an insurance company to make a payment, without even the slightest suggestion that any such payment would require some legal basis, serves more to mislead the uninformed public to believe the "heavy hitters" can bring to bear certain powers or influence that have no relationship to their knowledge or the facts of the case at hand. The falsity of the advertisements, alone, are sufficient to warrant restriction.

Now I am not a fan of most attorney advertising, and I don't do any other than my web site, and these ads in particular seem not only sophomoric, but an embarrassment to the profession. But there is a First Amendment issue at stake. And if the State wants to ban something, it must be specific as to what it is banning. And this was not done.

So there it is, the ultimate lawyer joke, brought to you New York Attorney General Andrew Cuomo: Humor has now been banned.

For more information on the subject:

• New Attorney Advertising Rules (Is This Blog an Advertisement?) (this site);
• New York Attorney Advertising Rules (Sui Generis, numerous posts); and
  
• Are Law Firm Web Site Attorney Advertising? (WSJ Law Blog).

Update, 4/2/07: From f/k/a, many links and comments on attorney advertising issues from around the country: the bar's self-importance is undignified (tasteless, too)

Labels: Attorney Ethics, Judiciary

This comes from Americans for Insurance Reform, released today:

NEW YORK -- Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors. The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed. Rather, according to the industry's own data:

• Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors' premiums skyrocketed, but they have been stable or falling throughout this entire decade.
• Medical malpractice insurance premiums rose much faster in the early years of this decade than was justified by insurance payouts.
• At no time were recent increases in premiums connected to actual payouts. Rather, they reflected the well-known cyclical phenomenon called a "hard" market. Property/casualty insurance industry "hard" markets have occurred three times in the past 30 years.
• During this same period, medical malpractice insurers vastly (and unnecessarily) increased reserves (used for future claims) despite no increase in payouts or any trend suggesting large future payouts. The reserve increases in the years 2001 to 2004 could have accounted for 60 percent of the price increases witnessed by doctors during the period.
  

There is much more at the links, including a copy of the study.
(hat tip to TortDeform)

Labels: FAQ-Medical Malpractice, Insurance Industry, Medical Malpractice

A recent British study confirmed something most of us all know intuitively:

Juries trying criminal cases are likely to be more lenient when the person in the dock is physically attractive, psychologists say.

So how do you level the playing field if, for example, you have an attractive doctor as a defendant in a medical malpractice case? And by attractive, I mean not just physically, but someone with good credentials who makes an impressive personal appearance by their ability to speak well. This is important if the patient chose the doctor.

The answer is not to knock them down, but to build them up in opening statements and jury selection (if your jurisdiction allows).

Tell the jury they will like the defendant. After all, your client chose this doctor for surgery, right? Trusted him/her. Kinda like Marcus Welby. Therefore, it stands to reason, the jury will too.

This does a few things: First, you have been dead honest. It is unlikely the jury expected you to "confess" this thing, but frankly, they will likely see it anyway if defense counsel is even mildly competent. Trying to tar a physician at the outset that your client previously trusted has enormous potential to backfire.

The jury also now has very high expectations for the doctor. With the bar set so high, any slip-up or contradictory testimony is likely to be viewed in a harsher light. Assuming you have a solid case to take to trial, this doctor-defendant will also lay out the standards of care (while they still trust him/her) before being confronted with the deviations from care, the sloppy notes, the rushed surgery, failure to read the x-ray, or contradictions from deposition testimony.

And there is something else at play here. The doctor was trusted, and the trust was betrayed. Betrayal often unleashes a flood of powerful emotions.

The instinct for confrontation must, at times, be avoided, and saved for those few special moments when the witness, who has now been built up, strays from the straight and narrow. And if that happens, it will have far greater impact than if you had simply tried to trash the doctor from the outset.


(Eric Turkewitz is a personal injury attorney in New York)

Labels: FAQ-Medical Malpractice, Inside The Well, Trial Practice

As I read the front page story in today's New York Times on insurance companies that deny, deny, deny -- waiting for the policy holder to either give up or die -- I was reminded of a movie. The NYT focuses primarily on insurance giant Conseco continually denying claims for benefits based on long-term-care policies.

From the article:

In lawsuits, complaints and interviews, policyholders contend that Conseco, Bankers Life or Penn Treaty denied claims because policyholders failed to submit unimportant paperwork; because daily nursing notes did not detail minute procedures; because policyholders filled out the wrong forms after receiving them from the insurance companies; and because facilities were deemed inappropriate even though they were licensed by state regulators...

In a 2006 deposition, a Bankers Life and Conseco claims adjuster, Teresa Carbonel, testified that she denied claims because of missing records but was prohibited from calling nursing homes or physicians to request the documents. She also testified that when a claim was denied, she was forbidden to phone a policyholder, but instead used a time-consuming mailing system.

Where have we seen this scene before? In Francis Ford Coppola's rendition of The Rainmaker (book by John Grisham), Matt Damon and Danny De Vito go to trial against an insurance company whose first, second and third courses of action are to deny a claim, hoping the people will give up. This is, apparently, very good for insurance company profits.

Perhaps Conseco took tips from the book or movie on how to run its business. This is the movie version:

Witness (reading): Great Benefit, July 7, 1996. Re: 7849909886. Dear Mrs. Black. On seven prior occasions this company has denied your claim in writing. We now deny it for the eighth and final time. You must be stupid stupid stupid. Sincerely, Evert Luftkin, Vice President, Claims Department.

And this is the real-life version from the article:

Conseco and Bankers Life [a subsidiary] "made it so hard to make a claim that people either died or gave up," said Betty J. Hobel, a former Bankers Life agent in Cedar Rapids, Iowa.

The executives at Conseco must be very big film or pop literature fans to have followed the Grisham script so closely. It almost makes one wonder if they can be sued not only for benefits, breech of contract and bad faith, but on intellectual property grounds.

Conseco now joins the ranks of State Farm (State Farm to Pay Punitive Damages. Again.), Allstate (Is Allstate really Allsnake?), and Blue Cross of California (Insurer Fined for Dropping the Sick and the Pregnant) who have been exposed this year for improperly denying coverage or claims. And it's only March.


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Insurance Industry

Blawg Review #101 is up at the Divorce Law Journal, as Diane Skaggs of Louisville, Kentucky takes the week that was for a race around the blawgosphere, mint juleps and all.

My post on the tough legal issues facing claimants against pet food maker Menu Foods is her "pick of the week."

Labels: Odds and Ends

The prior posting, Tough Legal Issues In Pet Food Cases Against Menu Foods, now has addendums for additional issues.

Over at Concurring Opinions, Alfred Yen speculates about the oncoming litigation against pet food maker Menu Foods, with the food apparently tainted by rat poison.

While appreciating his thoughts on possible res ipsa or strict liability potentials in what may be uncharted waters for a mass pet case, there are issues aplenty to prevent easy resolution. Proving negligence will likely be the easiest part (especially with gov't investigations), but that isn't enough for the average owner facing this problem. Here are the big three that I see:

• The evidence is probably gone. The contents were consumed by the pet and the packaging was likely tossed away when empty (especially if they were single serving sizes); [Addendum: If the food was scanned at check-out at a major market and some type of store discount card was used, it might be possible to track the tainted food from store to home]
  
• The pet may be gone, or the evidence of injuries not well documented, making causation very difficult to prove. Pets, after all, get sick without tainted food; and
  
• The cost to prove causation may well exceed the value of the case. In New York, at least, the emotional distress of the owner is not compensable, meaning that even if one can prove a pet consumed the tainted food and that it was this food that made the animal sick, the recovery is likely limited to the vet fees and/or the cost of the pet. How much will the veterinary expert set you back as compared to what you may recover?

This may be one high profile case where the efforts of creating new law and proving damages vastly exceed that which may be recovered. While I certainly see aggrieved owners insisting on suit -- as this may be their only means of justice for the loss of a beloved pet -- I think any attorney taking such a case must appreciate it will likely be similar to pro bono work.

[Addendum: A class action simply for the cost of the food is an altogether different issue, but one that is likely to leave very unhappy clients due to the emotional attachment to their pets and the minimal amounts likely to be recovered by any given owner.]

And if the eye is on punitive damages, the road ahead is completely uncharted in light of Philip Morris v. Williams, and the court's admonition that harm to others cannot be considered as part of a jury's determination.


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Interesting Cases in the News

If I'm going to re-post issues of problems with insurance companies such as Blue Cross of California, Allstate, or State Farm, then I should also be able to turn a critical eye to the bar...

Two stories today:

• Out of New Orleans, a story about theft from the ABA Journal, Lawyer Stole Millions, Indictment Says;
• From today's New York Times, a front page story, Fraud Inquiry Looks at Lawyers in Diet-Drug Case (Reg. Req.) (regarding allegations attorneys were overpaid in fen-phen litigation)
  

Labels: Attorney Ethics

From the WSJ Health Blog: Insurer Fined for Dropping the Sick and the Pregnant

Blue Cross of California was fined $1 million for cancelling the insurance policies of people who were sick or pregnant, the Los Angeles Times reports today.

The company pulled individual policies held by people who didn't have coverage through their employers or other groups, according to an investigation by state regulators. The details are sobering. Among 90 randomly selected policy cancellations, the regulators found violations in all 90.

I wish I could say that I am shocked and surprised by this news. But I'm not.

Labels: Insurance Industry

What, exactly was the school district of New Rochelle, NY thinking?

It appears that the policy for dropping children off a school bus is to simply leave them, even if no parent is there to meet them. We're not talking teens, we're talking as young as five.

While the school district will now re-visit that policy in light of the news story that broke, it makes one wonder exactly such a thing could even occur.

So during the same week that Chubb goes over the top trying to stop a law firm from blogging because of too much imagined risk, a school district is found to have not even considered risk for its youngest students. A little common sense on both ends seems to be in order.

Labels: Blogging, Interesting Cases in the News

The New York Personal Injury Law Blog brings you the week that was:

We start with a non-PI case since this is a problem that could stop this blog cold: Law.com reports of a malpractice liability insurer (Executive Risk Specialty, a unit of Chubb) stopping lawyers from blogging out of a fear of legal malpractice concerns -- Before You Blog, Check With Your Insurance Carrier. Does this mean their insured won't also be able to write an article? Put up a web site? Give a CLE lecture? If you have Chubb as your carrier, you may want to tell them to take a powder before they tell you. And tell them why they have lost your business.

Moving right on to the juxtaposition of law and medicine -->> In the world of FDA regulation, Pharmalot not only reports on how the FDA will limit conflicts of interest with respect to drug and device manufacturers, but does so a day ahead of it being the lead article in the New York Times. If you have pharma cases, this new blog, started in January, is chock full of news, apparently aiming to be to pharma what Howard Bashman's How Appealing is to lawyers;

From the FDA to cigarettes --> Byron Stier notes at the Mass Torts Blog that Tobacco Companies May Not Market Cigarettes As "Low Tar" or "Light" Overseas; while on the same blog Howard Erichson discusses the ethics involved in mass tort representation;

In hospital news, the WSJ Health Blog reports that at Massachusetts General Hospital it was found that doctors and nurses didn't wash their hands as often as they should. If that's what it's like at one of the best hospitals in the nation, what is going on in your neighborhood? (Though it's still an improvement over practicing medicine with your fingernails.)

Also in medical malpractice, Kevin at LexBlog reports on a widow that warns of a hospital's medical malpractice on her husband in a blog. The widow's blog posting now seems to be a dead link, but Kevin's is not. Once upon a time an angry customer might stand outside a store with a picket sign if she felt she was wronged. Now she can blog it to the world. What next, webcams in the hospital to watch your family?

Blogs also come up on the heels of last weeks $55M verdict against Chrysler, as the plaintiff's attorneys are speaking out in the comments section of blogs to defend the verdict against what they apparently view as Chrysler propaganda. Ted Frank at Overlawyered had complained about the verdict, which resulted in a lengthy comment from plaintiff's counsel and subsequent emails. He then put up a new post with the comments and responsive emails included, which was good to see since the folks that try a case are invariably in a better position to speak to merits than others. One of the plaintiff's attorneys also wrote in responding to my own blog, Will DaimlerChrysler $50M Punitive Damage Verdict Withstand Review?.

From Chrysler to Ford, a $15M rollover verdict was tossed by a federal court in part due to the misconduct of plaintiff's counsel;

While all those folks will likely be in appellate litigation for years to come, Ronald Miller has a piece on how to avoid just that for the less sensational suits, at the Trial Lawyer Resource Center blog, about negotiations and listening to insurance adjusters;

On more a more pedestrian front, Miller discusses at the Maryland Injury Lawyer Blog why it is so important to be choosy on slip and fall cases on ice and snow.

Still in Maryland, John Day from Day on Torts reports on a significant new ruling from the highest court on economic loss in tort cases;

Since weather obviously plays a role in so many personal injury cases, I might as well point out a good practice tip from the Kentucky Law Review on obtaining certified copies of past weather conditions from National Climatic Data Center;

Another practice tip comes from Evan Schaeffer at his Illinois Trial Practice Weblog regarding various technologies to keep track of trial and deposition testimony;

Anne Reed's tips on voir dire questions at Deliberations reminds me of a question I heard a few years back from defense counsel in a med mal I was trying, which I am sure no potential juror was expecting: "What magazines to you subscribe to?" If the answer is Mother Jones or Guns and Ammo you may get insights you might have otherwise missed. Perhaps one might also ask these days, "Do you read any blogs, and if so, which ones?"

From voir dire and into trial, at Simple Justice new blogger Scott Greenfield writes about cameras in the courtroom in I'm Ready for my Close-up, Justice DeMille as the matter gets debated in our state capitol.

Shifting gears to a bit of constitutional law that reared its head regarding the federal Transportation Equity Act of 2005. This law attempts to preempt those state statutes that permit the owners of rented or leased motor vehicles to be vicariously liable for the negligence of the drivers. If valid, it would override New York's own law to the contrary. But one state judge held in September 2006 that it was unconstitutional, asserting in Graham v. Dunkley that the Commerce Clause did not apply and that the federal government was seizing a state right in violation of the Tenth Amendment. Matthew Lerner at New York Civil Law discusses this week the precedential value of the case and how other courts have responded;

From Conlaw to Petlaw -- >> Stephanie Mencimer writes in the Tortellini about tainted pet food in Whither the pet plaintiff. In New York, as in many places, damages are limited to the cost of the pet (assuming you could prove causation), making good lawsuits and discovery unlikely unless some type of class action could be brought. My gut feeling is that it would take a lot of creative lawyering to achieve anything beyond the costs of the food. This did not stop this one New York couple and their lawyer, which just filed suit for compensatory and punitive damages for their dog that they said has died from the tainted food. Since causation will have to be proved, the legal fee might not pay the rent even if they succeed on the compensatories, and punitive damages will no doubt be a difficult road. [Addendum: CNN reports that the first class action suit has been filed in Wisconsin]

Mencimer, who is the author of Blocking The Courthouse Door, is also interviewed in FailureMagazine, in And Justice For All? Debunking the Lawsuit Myth;

And finally, slightly off the personal injury page to employment discrimination, Monica at The Common Scold tips us off to a creative blog about the issues The Office manages to bring up in each episode in, That's What She Said.

Enjoy the weekend.

(Submissions for next week's edition may be made to blog[at]TurkewitzLaw.com)

Labels: Personal Injury Law Round-Up

(This has nothing whatsoever to do with New York personal injury law)

There are two types of families in this world: Those for whom passing gas is a matter of some discretion, and those for whom it is an Olympic sport.

Those in the latter group are no doubt the target audience for Pull My Finger Fred and Fartman, both of whom are plush dolls that make a variety of sounds and comments (that's Fred, I think, to the right).

They have something else in common too, both were memorialized today in an opinion from the U.S. Seventh Circuit Court of Appeals. Seems they had issues of copyright infringement, trademark infringement, and unfair competition.

From Circuit Judge Diane Wood:

Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative.

The decision is here: JCW Investments v. Novelty, Inc. (a/k/a Pull My Finger Fred v. Fartman)

More details from this 2004 blog post on the dispute at the Berkely Intellectual Property Weblog.

Briefs are here.

(hat tip to How Appealing)

Labels: Interesting Cases in the News

Rick Santorum, former Senator from Pennsylvania, has joined the firm of Eckert Seamans as a consultant, as per Peter Lattman at the WSJ Law Blog.

But since the firm has a New York office it is required to abide by New York's new ethics rules that went into effect on February 1st of this year, and have been discussed for many months before that.

A view of the firm website this morning finds that it is not in compliance with the disciplinary rules. Its attorneys apparently haven't even read through the new rules despite many articles on the subject including the New York Times (WSJ Law Blog on Times article) and the front page of the New York Law Journal.

The reason I suggest the rules haven't even been read is that the easiest part, marking the web site as attorney advertising, hasn't been done, as required.

Litigation is currently pending in federal court over the constitutionality of the new rules (Skadden Website and Others Named In Ethics Lawsuit).

Other links on the subject:

• Rudy Giuliani Finally Complies With New York Ethics Rule (this site)
• New York State Bar Association (with a blacklined copy of the rule changes)
• New Attorney Advertising Rules (Is This Blog an Advertisement?) (this site)
• New York Advertising Rules (Sui Generis, numerous posts)
• Major Law Firms Ignoring New York's Ethics Rules on Advertising (this site)
• NYSBA Rules Fiasco (The Common Scold)
• BigLaw In Violation of NY's New Advertising Rules (My Shingle)
• Controversy Continues Over N.Y. Ad Rules (Law.com Blog Network)
• Are Law Firm Web Sites Attorney Advertising? (WSJ Law Blog)

Labels: Attorney Ethics

Misdiagnosis occurs in 15 to 20 percent of all cases, according to a new book out by Dr. Jerome Groopman called "How Doctors Think."

In an op-ed in today's Boston Globe (The Mistakes Doctors Make) based on the book, Dr. Groopman writes:

Why do we as physicians miss the correct diagnosis? It turns out that the mistakes are rarely due to technical factors, like the laboratory mixing up the blood specimen of one patient and reporting another's result. Nor is misdiagnosis usually due to a doctor's lack of knowledge about what later is found to be the underlying disease.

Rather, most errors in diagnosis arise because of mistakes in thinking.

In the piece, he deconstructs how a tumor was missed for years in a woman who had just given birth.

The book is reviewed at this link to Time. The Time lead is for an overlooked tumor in an 8-year old. According to the review,

[Groopman] learned that about 80% of medical mistakes are the result of predictable mental traps, or cognitive errors, that bedevil all human beings. Only 20% are due to technical mishaps--mixed-up test results or hard-to-decipher handwriting--that typically loom larger in patients' minds and on television shows.

The result of Groopman's journey is How Doctors Think (Houghton Mifflin; 307 pages), an engagingly written book that is must reading for every physician who cares for patients and every patient who wishes to get the best care. Groopman says patients can prompt broader, sharper and less prejudiced thinking by asking doctors open-ended questions and learning to identify some of their common thinking mistakes.

While some have a knee-jerk reaction to the attorneys who initiate suit on behalf of patients injured by malpractice, it's nice to know that some doctors are thinking about the actual problem. Because shooting the messenger, a time-honored way of changing the subject, is a lousy way of fixing a problem.

(Globe op-ed via David Williams at Health Business Blog)

Addendum 3/21/07 -- Dr. Groopman on The Colbert Report.

Labels: FAQ-Medical Malpractice, Hospital Malpractice, Medical Malpractice

For the last few years in New York a dispute has existed with respect to the right of a defense firm to privately interview the treating doctors of a plaintiff after the matter has been certified ready for trial.

Last year, one of New York's four intermediate appellate courts (the Second Department) said that such interviews were not permitted (Arons v Jutkowitz).

Now, the Fourth Department, in a decision dated this past Friday, has agreed with the Second, albeit in a 3-2 decision, protecting patients from having their treating physicians cold called by defense lawyers or investigators, and protecting plaintiffs from being forced to authorize such interviews in writing.

Thus, the case seems destined for New York's Court of Appeals. The majority and dissenting opinions in Kish v Graham can be found here.

Addendum: Curious as to ultimate fate of the first of these decisions (Arons), I checked and found that leave to appeal to the Court of Appeals was just granted on March 8. (Since Arons was unanimous, it could not be appealed as of right.) Thus, the issue is going up.

Second Addendum (12/5/07) - The Court of Appeals has reversed. See: NY Court of Appeals Allows Defendants to Privately Question Plaintiffs' Doctors (11/27/07)

Labels: Medical Malpractice

A car crosses a double yellow line and causes a collision. As I noted last week, there is a presumption that the driver that crossed the lines is liable.

But here, a driver claims he "blacked out' and that the presumption of liability against him is rebutted. Not so, says New York's Appellate Division, Third Department last week, since the driver must still prove that such event happened:

Initially, we note that unexcused violations of the Vehicle and Traffic Law, such as crossing a double yellow line, constitute negligence per se. However, violations which give rise to negligence per se may be excused if the accident clearly results from an unforeseen and unexpected medical emergency. [Defendant's] self-serving affidavit in which he asserts a belief that he "blacked out,"unsupported by any corroborating medical evidence, is simply insufficient to create any issue of fact regarding an unforeseeable emergency situation.

Once again a party is defeated by a failure to follow a basic principle of law: That in order to defeat a motion for summary judgment, evidence must be put forward admissible form.

Labels: Car Accidents, FAQ-Personal Injury

Blawg Review #100 is up a day early at Blawg Review, created by the anonymous Editor. It is a spectacular compilation of posts from around the legal blogosphre from prior Blawg Review hosts, and a few from future ones.

On a related note, I'm pleased to announce I will be a future host in November as I approach my 1st year blogiversary.

Labels: Odds and Ends

The New York Personal Injury Law Blog brings you the week that was:

The biggest news was the Vioxx verdict in Atlantic City. At the Mass Tort Litigation Blog, note was quickly taken of the $20M verdict for compensatory against Merck for Vioxx. After the subsequent $27.5M punitive verdict on top, Evan Schaeffer's Legal Undergound did a recap of other blogs on the subject, including one from the son-in-law of the plaintiff, which interestingly enough, has now been removed. It was here: Vioxx;

William Childs at the TortsProf Blog notes (Up In Smoke), a big article in the ABA Journal about "how greed, hubris and high-stakes lobbying laid waste to the $246 billion tobacco settlement."

From my own blog, following much recent discussion of punitive damages: Will DaimlerChrysler $50M Punitive Damage Verdict Withstand Review?

From The Injury Blog, two posts on police brutality cases: $200,000 Pittsburgh Police Brutality Settlement for Hot Dog Shop Patron's Personal Injuries; and Updates on Chicago Personal Injury Lawsuits Claiming Police Brutality;

The South Carolina Appellate Law Blog notes that there is a New Inquiry of the Catholic Diocese in Charleston, regarding unreported cases of sexual abuse, indicating that such suits appear from far over;

Trucks were big this week down south, with Jim Higgins at the Tennessee Law Blog discussing the ramifications of highway safety as the DOT opens the border this year to Mexican trucks and drivers with, shall we say, less stringent safety values in Tennessee Highways Not As Safe; And Ken Shigly reporting a federal court decision in one of his own cases that rejected a motion to throw out punitive damages;

Evan Schaeffer writes about a decline in mega-verdicts at the Illinois Trial Practice Weblog in Top 10 Jury Verdicts in 2006;

Kevin, M.D. brings us a disturbing story, when a baby's remains were lost, and the OB was sued;

And finally, since this is a personal injury law blog, Margaret Collins Online hears a story about dangerous doormats, and wonders if we are becoming too risk averse.

Labels: Personal Injury Law Round-Up

From today's New York Sun:

An Orthodox Jewish blogger is asking a judge to protect her anonymity from a Long Island elected official who has gone to court to identity the blogger.

The elected official, Pamela Greenbaum, a member of the school board for Lawrence, L.I., asked a state judge last month to force Google to identify the writer behind a popular Web log for the orthodox community in the Five Towns area.

The blog, orthomom.blogspot.com, featured a posting in January critical of Ms. Greenbaum's position regarding the use by yeshiva students of public school facilities. In guest comments to the postings, Ms. Greenbaum has been called a "bigot." [link via Judicial Reports]

This seems to be a suit that goes nowhere, if being called a "bigot" is the sole issue, since that seems to be an opinion. Additional facts were not available at the New York Sun site (but are at links below).

It is worth pointing out here that anonymous speech is well protected under the First Amendment in accordance with the Supreme Court's ruling in McIntyre v. Ohio Elections Commission. The country has a long history of anonymous speech in the form of books and pamphlets, including the Federalist Papers first published as "Publius." Check out footnotes 4 and 6 of the Stevens majority opinion for some anonymous writings later attributed to historic figures.

Additional links:

• Greenbaum v. Google, (Public Citizen);
• Motion to Quash Subpoena, (Public Citizen);
• All the Orthomon Lawsuit News, (Canonist);
  
• Orthomon;
• Electronic Frontier Foundation

Labels: Blogging, First Amendment

Medical malpractice attorneys will not be surprised. A study released yesterday in the New England Journal of Medicine finds a higher death rate for people who go the hospital for heart attacks on the weekends than during the week. The reason is that fewer invasive cardiac procedures are performed.

The study tracked over 200,000 patients and found about a 1% difference. And the reason for the difference, the authors suggest, may be due to a difference in staffing levels.

These staffing concerns do not surprise me. I'm not sure if it's been studied, but I would bet the worst time to go a hospital is the July 4th weekend. And I think few doctors would disagree. New residents are created on July 1st, and existing residents move up a year to new responsibilities. Match that with many attending physicians taking off time for a holiday week, and a problem is created.

When hospital staffing levels drop, patients suffer.

Labels: FAQ-Medical Malpractice, Medical Malpractice

It would be difficult to imagine a more heartbreaking emotion than that of a parent that loses a child to suicide.

From the Asbury Park Press comes this story of a 24 year old man arrested for burglary, suffering from delusions, who hangs himself with his shoelaces while awaiting trial. The parents have brought suit against Monmouth County, which runs the jail, for negligence in failing to keep a constant watch on an individual with known psychological problems that was suicidal:

While suffering from delusions, paranoia and methadone withdrawal, inmate Nicholas E. Organek -- who was being checked on every 30 minutes at Monmouth County Jail in Freehold Township -- used his shoelaces to hang himself from an exposed pipe in his cell two years ago.

Physicians should have kept him on constant watch status in the jail given his history of suicidal thoughts and previous suicide attempts, according to a federal lawsuit recently filed by his parents.

There are some who like to think that all lawsuits are about "the money" and get their kicks mocking the injured or bereaved. But, while I don't know these claimants, I think I can safely say that even if they received all the money in Fort Knox, it would do nothing to heal the heartache. Many litigants feel that by holding people accountable for their actions it makes it less likely someone else will suffer the same fate.

Update 3/15/07 --: Just hours after writing about this New Jersey case, I see another one from yesterday's Albany Times Union about a suicide in an Albany jail, and the mother's suit against the jail for ignoring repeated warnings that the prisoner would injure or kill himself.

Labels: Interesting Cases in the News, Personal Injury

A blog was put up by the son-in-law of the plaintiff, Frederick "Mike" Humeston, reflecting on the two Vioxx trials that they went through in Atlantic City against Merck. The first trial was won by Merck, but the verdict was tossed out by the judge. The second has now resulted in a whopper of a loss for Merck of $20M in compensatory damages and $27.5M in punitive damages.

The writer discusses the lawyers, the jurors and the judge. The jury comments, as always, are the most interesting.

About the first jury, he writes:

My wife went to Atlantic City that first time and told me that the jury seemed completely uninterested in the proceedings....After that first trial, my father-in-law told me he realized his case was in trouble when one of the questions the Jury asked was whether they (the Court) served any drinks in the "side bar." The Judge had allowed the Jury to ask written questions of the witnesses and apparently were bored with the many "side bars" the lawyers and the Judge had undertaken to clarify points of law.

About the second jury, he writes:

Visiting, I could see the jury was involved, taking notes, asking intelligent questions. They were definitely engaged.

(link via Evan Schaeffer's Legal Underground)

Labels: Interesting Cases in the News, Punitive Damages

New York Sets a High Bar for Convicted Felon, read the headline in a WSJ Law Blog posting last week by Peter Lattman. It centers on the 12-year campaign by a twice-convicted felon to practice law in New York after a small matter of attempted murder. He has been denied admission nine times. The posting received dozens of comments.

Now here is the interesting part, not noted in the column or the comments. If this felon is not allowed to practice, what are the ramifications for former Chief Judge Sol Wachtler, who had been convicted and served time for blackmail and extortion? He was recently in the papers for having received preliminary approval for getting his license back (Sol Wachtler Getting Law License Back?).

Labels: Attorney Ethics, Judiciary

When cars collide head-on in New York, does at least one of them have to be negligent? A jury said no, and the trial court agreed. The case was brought by an injured passenger in one of the cars.

In a ruling last week, the Appellate Division Second Department reversed with this principle of law:

It has repeatedly been held that a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver's own making, violates the Vehicle and Traffic Law and is guilty of negligence as a matter of law.

Here, the evidence presented at trial demonstrated that the statute was violated by either [car one or car two]. Neither party presented a non-negligent explanation for the accident. Rather, each defendant claimed that although it had been raining and/or sleeting for some time, she did not lose control of her vehicle. In any event, the adverse weather conditions were foreseeable and would not have provided a non-negligent excuse for the collision.

The case was sent back for a new trial. The decision in Sena v Negron is here.

Labels: Car Accidents, FAQ-Personal Injury, Personal Injury

From Atlantic County New Jersey--

JUDGE: Is there any reason you would like to be excused from service?
JUROR: Yes, I would like to speak to you at sidebar.
JUDGE: Sure
JUROR: I fear for my life
JUDGE: You should not fear the defendant
JUROR: No, not the defendant...I fear Juror Number 2. I am currently dating her soon-to-be ex-husband and she does not know he is dating so soon.

Courtesy of a recent Jur-E Bulletin newsletter put out by the National Center For State Courts.

Labels: Inside The Jury Room

New York personal injury lawsuits have very liberal discovery rules when it comes to furnishing medical records. Almost any medical record, it seems, is fair game under the civil practice rule for discovery of all "material and necessary" documents.

But the First Department of the Appellate Division wrote a few days back that a tougher standard exists for more sensitive medical data, particularly with respect to HIV status and substance abuse materials. Applying the standard of the Health Law or Mental Hygiene Law instead of the Civil Practice Law and Rules, the court noted that a court should grant an order for disclosure of confidential HIV related information upon an application showing a "compelling need" for disclosure of the information for the adjudication of a criminal or civil proceeding.

Since the motion court had made its determination using "material and necessary" standard and not the "compelling need" standard, the lower court decision was reversed and remanded for consideration under the higher standard to see if such records exist and determine their discoverability (if any).

The decision in this malpractice case is here.

Labels: FAQ-Medical Malpractice, FAQ-Personal Injury

The servers for my hosting service were knocked off line yesterday. I'm back. To stay. I hope.

Update: And here is the reason, from Computer Business Review Online:

GoDaddy whacked by DDoS attack

The Go Daddy Group Inc has been hit by a massive distributed denial of service attack that took down many of its customers' websites and other services for several hours.

The company, the largest registrar of internet domain names and one of the largest web hosting providers, said it was the subject of "large-scale, sophisticated attacks" that lasted four to five hours.

....

Warner declined to speculate on the motive for the attack. His team is poring over packet captures to see if they can determine the source or motivation.

He may not want to speculate on the motive, but I will. It's called vandalism. There are people in this world who break windows or scribble graffiti because they think it is fun. I don't think it's too much more complicated than that. Whether high tech or low, a vandal is a vandal.

Labels: Odds and Ends

This week DaimlerChrysler was hit with a $50M punitive damage award along with $5.2M in compensatory damages. In the wake of the Supreme Court's recent 5-4 decision in Philip Morris v. Williams, many might wonder if this award of almost 10-1 ratio of punitive to compensatory damages will withstand judicial review.

The suit was based on the company's failure to fix a safety defect that caused parked vehicles to unexpectedly go in reverse. In April 2004, the plaintiff suffered fatal head injuries when an unoccupied 1992 Dodge Dakota pickup truck ran him over after he exited it believing it was in park. He tried to dive back in and stop it, with fatal results. Defendant tried to blame the plaintiff for jumping into a moving vehicle while plaintiff's counsel told jurors that DaimlerChrysler "had 20 years to take care of this problem [while] Richard Mraz had two seconds to get this vehicle under control."

Addressing only the ratio of the award, the answer as to its acceptability on a constitutional basis must be a resounding yes if one looks to prior decisions of the U.S. Supreme Court for guidance. While the court had cut back some awards based on due process concerns, the recent conduct of the court in Philip Morris is unlikely to help DaimlerChyrsler. As I indicated in the wake of the Philip Morris decision (Philip Morris decision -- Why It was Good For Plaintiffs), five of the judges have already stated that they could approve a ratio as high as the almost 100-1 in Philip Morris if the conduct was egregious enough, and two justices (Alito and Roberts) have not yet spoken on the matter.

While there are no doubt other issues that will be raised in the wake of the verdict, the issue of the ratio as an absolute bar is not an argument that will help the defendants.

Labels: Punitive Damages

Leading off the personal injury law round-up is a long piece by Ken Shigley from the Atlanta Injury Law and Civil Litigation Blog entitled Financial Responsibility of Interstate Motor Carriers for Negligence of Truck Drivers, that concludes the regs work together to eliminate the "independent contractor" versus "employee" distinction in the motor carrier industry. In another post he speculates that this could play a role in the recent bus crash that killed 6 college students.

Andrew Bluestone of the New York Attorney Malpractice Blog points out that sometimes cases come to personal injury attorneys from other lawyers as they are substituted out. Thus: A Short Primer on the Retaining Lien.

Bob Kraft's P.I.S.S.D. points out from Dallas that the FDA Update on Peanut Butter Recall: Salmonella found in the ConAgra Plant.

Moving on to drugs, Law.com reports on this case from Britain's High Court: Overmedicated Lawyer Awarded $2.7 Million right on the heals of a new domestic report on medication errors after surgery.

For those following the Zyprexa litigation, Pennsylvania has sued Eli Lilly and others for fraudulently distributing the medicine. Two outstanding posts on the subject to get anyone up to speed are from David Michaels at The Pump Handle (More Consequences of Undisclosed Science: Pennsylvania Sues Drug Makers) and William Childs at TortsProf Blog (Zyprexa: Pennsylvania Sues and Thoughts on Sequestered Science).

If you are following the ongoing Vioxx litigation, Evan Schaeffer's Legal Underground has a list of upcoming trials.

On the other side of the aisle is Walter Olson at Point of Law, in a discussion of how tort reformers are shifting tactics from attempts at legislative change to procedural change: Liability reform's new direction: procedure. Although, television and pop culture may be a much bigger factor in litigation results, as Anne Reed points on in Deliberations with The CSI Effect: While Scholars Get Empirical, Libby's Lawyer Tries It Out.

CEO David Levy at Running a Hospital discusses what it's like for docs to be sued in The Shame of Malpractice Lawsuits.

Flipping back to pro-consumer posts, Paul Ruschman at TortDeform, does a book review on Blocking the Courthouse Door by Stephanie Mencimer, who has her own blog at the Tortellini.

Michael Townes Watson, also at TortDeform, gives an update on one state's attempt to close the courthouse doors to personal injury victims: Tennessee Tort "Reform" is Misguided;

And John Day from Day on Torts also discusses the Tennessee fight in his op-ed piece in The Tennessean (Injured Patients Deserve Equal Justice). It's a good read regardless of the state you are in.

Moving next door to Kentucky, the legislature is doing battle over loss of consortium claims in death cases, as recounted by Michael Stevens in the Kentucky Law Review in Kentucky Senate Owes State's Widows an "Up or Down" Vote on Widows' loss of companionship bill;

Finally, at the Maryland Injury Law Blog, Ronald Miller responds to an AOL "story" about dumb lawsuits, in Most Outrageous Lawsuits: The Attack on Personal Injury Lawyers Continues Unabated.

Submissions for next week's edition may be made to blog[at]TurkewitzLaw.com

Labels: Personal Injury Law Round-Up

Juries can be fascinating. I had noted earlier about the one juror who refused to wear the red Valentine's Day shirts. And I also noted that her excusal by the court was likely bad for Libby, as stubborn jurors are more apt to hold out longer for their beliefs, destroying unanimity.

Now we know why she was excused, and based on this snippet from a blog posting by another juror, those traits of individualism seemed evident:

As I said, the original 16 jurors - 12 regulars, four alternates, got along famously with one exception. Let's call the exception RJ (Runaway Juror). She broke the first rule by flashing another juror a page in her notebook during court testimony. Fortunately the message, Look at that eye candy in the third row! wasn't top secret stuff. She also bothered Court clerk Mattie about the lunch menu, and inserted herself into others' conversations. All that was easily tolerated. But one day before we were called to court, she approached three jurors and semi-whispered, "My mother told me that reporters are writing stories about how we...." Before she could say more, all three told her to "STOP."

So this Monday morning, Court clerk Mattie (who hadn't repeated a single item of clothing in the first three weeks of the trial, according to our fashion consultants) calls RJ into the hall. A few minutes later, she's collecting her belongings. "It was just something I heard," she says. We call goodbyes from a distance. As soon as the door closes, four jurors pump their fists.

Labels: Inside The Jury Room, Interesting Cases in the News

The Libby jury was methodical in its analysis and deliberations.
The Smith judge was "blubbering" as he created a media circus.

I've never seen a better argument for juries.

Labels: Inside The Jury Room, Interesting Cases in the News, Odds and Ends

Surgery related medication errors are most likely to affect children, according to a new study.

From today's New York Times (sub. req.):

The current study did not try to estimate total error rates. Instead, it analyzed 11,000 mistakes that had been voluntarily and anonymously reported to the pharmacopeia by hundreds of hospitals since 1998.

The study was confined to errors made on patients undergoing surgery, and the rate of harm, 5 percent, was much higher than is typical for medication errors. Among children it was 12 percent.

Problems were found with a lack of communication as patients moved from pre-op, to surgery to post-op and back to their rooms.

A study back in 1999 found that as many as 98,000 people die each year as a result of medical errors. (Institute of Medicine, National Academy of Science To Error is Human: Building a Safer Health System (National Academy Press, 1999).

Causes of the problem come as no surprise to those who litigate medical malpractice cases. From the NYT story:

Typical dangerous mistakes were failures to administer antibiotics before surgery, failures to note allergies, errors in setting pumps that dispense blood thinners or painkillers, and giving overdoses to infants.

In several cases described in the report, poor penmanship, careless listening or bad arithmetic caused patients to get doses 10 or even 50 times as high as they should.

These are the types of institutional problems that can be fixed and should not exist in a modern hospital.

The study was done was done by the United States Pharmacopeia, which sets standards for the pharmaceutical industry, and by the Uniformed Services University of the Health Sciences in Bethesda, Md., and two nurses' associations.

More links:

• Pharmacopeia Press Release;
• Medication Errors During Surgeries Particularly Dangerous (WCAX-TV - Vermont - HealthDay News)
• Are Electronic Health Records Coming Soon? (This blog, 12/15/06)...Often, medical malpractice occurs for the simplest of reasons: One health care practitioner did not effectively communicate a problem to another. And often, this is simply because of sloppy record keeping or illegible handwriting....more at link
  

Labels: Medical Malpractice

An article appeared last week in the Kingston Daily Freeman (Doctors put lawyers on defensive) about a postcard/poster campaign by the Medical Society of New York State, accusing trial lawyers of causing excessive malpractice insurance rates and driving doctors out of practice.

About those posters and fliers? It's a bad idea for doctors for three reasons:

First, the single biggest reason that unhappy patients call lawyers, based on my 20 years experience representing patients, is bad bedside manner. A complication or bad result of some type occurred, and the patient didn't get answers they deemed satisfactory. They are angry. (The subject of doctor apologies cutting down on such legal inquiries was posted last night by Paul Levy at Running a Hospital) Brochures complaining about lawyers is not what unhappy patients want -- they want answers.

Second, a lawsuit is not the first thing on many patients minds when something goes awry. There is no shortage of people who contact lawyers years after the acts they complain of, often after the statute of limitations has passed, and only after a discussion with a friend or neighbor put the idea in their head. Placing the idea of malpractice front and foremost while they wait to see a doctor may be very counterproductive for these patients.

Third, complaining about an expense of the medical practice (insurance, which is the subject of the political campaign) simply invites a discussion of revenues. An expense that is 3% of revenues, for example, is different than one that is 30% of revenues. Do doctors want to answer questions about their revenues?

Just a few things to think about, all of which become ever more important depending on the amount of time spent in the waiting room, and the amount of face time spent with the physician. If waits are long and face time is short, the physicians may be doing themselves a disservice with this type of politicking. Their next stop might be my office.

(article tip via Overlaywered)


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice, Political Action

The developing scandal around the firing of U.S. Attorneys around the country, apparently for political reasons since they were all doing good jobs, has just intensified.

Michael Battle, Executive Director of the Executive Office for United States Attorneys, has resigned.
(Via American Constitution Society Blog)

It seems inevitable that he will be subpoened to testify about who gave the marching orders for the firings, and what the basis was for those terminations. And if he is no longer working for the Department of Justice, he will be free to speak a bit more candidly than if he were. Which is bad news for the genius who thought firing good people was a good idea.

Update -- As per Fox News, Official Resigned "About a Month Ago". He was apparently unhappy about orders from above that he was to purge the U.S. Attorneys for what appears to be purely political purposes.

see also: U.S. Attorney Imbroglio: The Story That Keeps on Giving (WSJ Blog)

Labels: Interesting Cases in the News, Odds and Ends

According to a story in today's Daily News (Too many pedestrians dying on city's meanest streets):

More than half of all pedestrian fatalities and injuries occur at 10% of city intersections, according to new data released by the advocacy group Transportation Alternatives.

A copy of the press release from the 4,000 member organization can be found here: Hundreds Rally to Demand Pedestrian Safety.

The story of so much death and injury coming from so few trouble spots reminds me of the medical malpractice problem we have, where 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments.

The tort "reformers" like to blame lawyers for the "litigation explosion." Perhaps they should look to the source of the problems. The best way to decrease litigation is to repair or remove the instruments of injury and death.

Labels: Car Accidents, tort reform

Big Law will have their websites before a federal judge in the controversy over New York's new ethics rules. This results from a lawsuit filed by Public Citizen and an upstate New York personal injury law firm that advertises heavily as the "heavy hitters," for a preliminary injunction against the rules. The court will be challenged due to the vagueness of the rules, as well as the problem of selective enforcement on attorneys depending on their area of practice

One of the issues before the court is this provision, that prohibits:

"techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence." 22 NYCRR 1200.6(c)(5)1

Thus, the issue is not simply ads in poor taste, but rather, any attention getting technique. I had addressed this problem previously on January 24th with, Is My Family Photograph An Ethical Violation in New York? Since virtually every graphic or photograph on a law firm's web site is "unrelated to legal competence," the rule is utterly vague as to what is actually forbidden, thereby raising constitutional conflicts.

The following law firms have now had their website cited in this complaint as potentially being in violation of the attorney advertising rules (in the order they appear in the brief):

• Skadden, Arps, Slate, Meagher & Flom (for displaying a dramatic red design scheme, photographs, and animation);
• Sullivan & Cromwell (featuring a picture of a mountain);
• Davis Polk & Wardwell (featuring depictions of moving people as blurs);
• Blank Rome (displaying flashing photographs suggesting competence, including gymnasts flying through the air, chess pawns, and a $5,000 bill)

It is not just vagueness that is at issue. Plaintiffs' brief, citing to Judge Eugene Pigott -- who had been one of the presiding justices that formulated the rules and has now been elevated to New York's Court of Appeals -- conceded that the rules were not intended to be applied uniformly:

Indeed, Justice Pigott, in his public comments about the rules, acknowledged that the presiding justices had not considered how some of the rules would be applied to "the big firms in New York," noting that "[w]e're thinking about the ads that you and I see at night." Although Justice Pigott claimed that the rules do not "target any area of practice," he admitted that it was only "very limited areas of practice" that he was concerned with in adopting the amendments and that it was "obvious to all of us the areas that seem to attract the most egregious ads."

As set forth succinctly in the brief:

Due process prohibits vague regulations for two interrelated reasons: (1) to provide fair notice so that individuals may steer clear of unlawful conduct, and (2) to provide explicit standards to authorities to prevent arbitrary and discriminatory enforcement.

It should be noted that prior to the new rules that went into effect on February 1st, New York already had rules against false and misleading advertising. According to a New York State Bar Association report cited in plaintiffs' brief, about 1/3 of randomly selected ads were in violation. The problem was a lack of enforcement. But instead of additional enforcement, yet more rules were made, even more unenforceable than the prior ones.

It seems that New York's judiciary wants to prohibit ads that are in bad taste, but has well exceeded such a goal. And while that may be a laudable objective to many, actually defining it is another matter. The new rules simply seem to be another version of the vague, "I know it when I see it."

(copy of brief via Sui Generis)
Additional links:

• Consumer Law & Policy Blog (Public Citizen)
• New York State Bar Association (with a blacklined copy of the rule changes)
• Rudy Giuliani Finally Complies With New York Ethics Rule (this blog, with additional links)
  

Labels: Attorney Ethics, Judiciary

This comes from The Politico. There is much more at the link:

When Rudy Giuliani faces Republicans concerned about his support of gay rights and legal abortion, he reassures them that he is a conservative on the decisions that matter most.

"I would want judges who are strict constructionists because I am," he told South Carolina Republicans last month. "Those are the kinds of justices I would appoint -- Scalia, Alito and Roberts."
....

A Politico review of the 75 judges Giuliani appointed to three of New York state's lower courts found that Democrats outnumbered Republicans by more than 8 to 1. One of his appointments was an officer of the International Association of Lesbian and Gay Judges. Another ruled that the state law banning liquor sales on Sundays was unconstitutional because it was insufficiently secular.

A third, an abortion-rights supporter, later made it to the federal bench in part because New York Sen. Charles E. Schumer, a liberal Democrat, said he liked her ideology.

(via The BLT: The Blog of Legal Times)

Labels: Judiciary

Out of Rio de Janeiro comes this story about a 23 year belly ache, and the forgotten 2" long scalpel that was found on x-ray that was causing the problem.

I've seen cases with retained sponges, clamps and a broken surgical scissor blade, but never a scalpel.

She's lucky to be alive.

(hat tip to Kevin, M.D.)

Labels: Interesting Cases in the News, Medical Malpractice