The outing of Flea's real identity in the Boston Globe is now generating an immense amount of comment in the blogosphere. (For those new to the story, see Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court): So I'd like to add a few additional observations and links:

First, I learned of Flea's outing yesterday when Jonathan Saltzman of The Boston Globe called me for comment. To say I was stunned would be an understatement. While I had discussed the risks of his posting confidential trial prep work back on May 8th, I told Saltzman I was surprised to see it actually happen.

Second, I wrote this morning's lengthy post last night, and then held it for today, since the story belonged to the Globe, and not me.

Third, I picked up a hard copy of the Globe. The story is front page, above the fold. Which is to say, his patients and colleagues will all see it.

Fourth, the Globe story said the outing was on May 14th, and the settlement was the 15th. Flea took down his blog in totality on the 16th. So the blog came down after it was all over.

Fifth, while I hadn't appreciated it before, the Flea photo from his blog (with guitar, above) is apparently that of the musician by the same name. (Hat tip to Michael Grant.)

Addendum -- Sixth, Saltzman informed me during our conversation yesterday that Flea's attorneys were unaware of the blog, which means of course, that Flea didn't tell them and he wasn't prepped by his attorneys on the subject on how to deal with it if it should come up.

Below are some of the medical and legal blogs that have already picked up various parts of this story today:

• The Flea Settles Down (Simple Justice)
• Flea (Kevin, M.D.)
• Blogging Defendant Blows Defense (Volokh Conspiracy)
  
• Flea Collared (Odd Time Signatures)
• Cross-examination reveals the defendant was that anonymous blogger who's been writing about the trial (Althouse)
• A Law Blog First? Defendant Blogs His Own Trial (WSJ Law Blog)
• Flea's Fall Sobering For Other Bloggers (White Coat Notes - Boston Globe)
• Fleased (symtym)
• Days of Fame (symtym)
  
• Flea Collared (Drums and Whistles)
• An attorney weighs in on Flea’s malpractice settlement (Notes from Dr. RW)
• Un(settling) End In The Case Of The Disappearing Flea (Dr. J's House Calls)
• Rich People Blog Too (The Hub)
• Flea Outed In Court (Universal Health)
• Flea, flea as fast as you can (Legal Antics)
• Updates, May 31 (Overlawyered)
• Stand By Your Flea (Health Business Blog)
  

There will be others and I will try to update later...

More:

• Flea: Another Argument for Tort Reform? (Health Care BS)
• Kevin M.D.: Flea (GruntDoc)
• Blogging MD Defendant Exposed (ZiefBrief)
  
• "Aw Sh*t!": My Reaction to the Flea Debacle (Musings of a Dinosaur)
• Paging Dr. Flea (MetaFilter)
  
• On Flea (OnThePharm)
• Flea Revealed in Boston Newspaper (Ami Chopine)
• Dr. Flea Blogged His Malpractice Trial, Settles When Outed (Clinical Cases and Images)
• The Flea Flicker: Risks of (anonymous) blogging (Health Care Law Blog)
• Flea-ting Thoughts (Massachusetts Liberal)
• A Fool for a Client (Discourse.net)
• More Blogging Thoughts (Evil HR Lady)
• Dr. Strangeblog (The Paperback Museum)
• (Yet) Another Object Lesson in Blogging Biting Back (Infinity Ranch)
• For Med-Mal Doc, Blogging Proves Bad Medicine (Law.Com Blog Network)
• The strange case of the arrogant physician, and related musings on the propriety of physician blogging and other online behavior (HealthBlawg)
• A Small Thought About Flea (TortsProf)
  

Somehow, I don't think we have seen the end of this...

Addendum 6/1/07 -- More:

• Details unfold about Flea’s day in court (Notes from Dr. RW)
• The Doctors' Revenge (plus the Flea Feeding Fenzy) (Simple Justice)
• Doctor Flea exposed in court (The Angry Dad)
• Elsewhere: Of Fleas, Blogs, and Client Control (Kentucky Law Review)
• The Flea Saga and WOM (The Independent Urologist)
• More On Litigants Blogging (The Divorce Law Journal)
• Is there a flea in the house? (Manic Mommies)
• Blog Obsession (MotherThoughts)
• Malpractice Suit Defendant Unmasked as Anonymous Blogger; Settles Case (The Blog Herald)
• Flea Bites (QuizLaw)
• The Blogocratic Oath: First, Do No Harm (The Opinionated Marketers)
• Blogging Doctor Reveals Secret Identity Under Oath (PR Communications)
• Blogging Your Own Trial - Transparency is the Verdict (VisInsights)
• Blog Scandal Hits Home (Notes of an Anesthesioboist)
• Self-immolation on the witness chair via the power of the internet (BeldarBlog)
• Blogging malpractice defendant exposed : Case settled (Real Lawyers Have Blogs)
• Blogging Your Court Case Is A Very Bad Idea! (Feminist Law Professors)
• The Blog as Public Record (Magnosticism)
• Don't Blog Your Court Appearances (PsychCentral)

Addendum 6/4/07 -- More:

• The Malpractice Cast Net (Scalpel)
• Random Thoughts (Catscanman)
• "Flea" Bite (Not My Second Opinion)
• Could Have Lied (Blogborygmi)
• There's Flea! And the news is not good (ScienceBlogs)
• The Dr. [] / "Flea" anonymous blog outing - Blogging HARMS! (Infothought Blog)
• A Flea Squashed: Bloggers Sweat After Court Case (Bostonist)
• Why Didn't Anyone Warn Flea? (I'm a blogaholic)
• Flea Outed and Settles Malpractice Case (OBGYN Tips)
• Do I feel bad (?) (The BFC Computing Weblog)
• Some thoughts on Flea (Tales From the Womb)
• About Dr. Flea (Cathy's Place to blog)
• "Flea" Proves to be His Own Biggest Pest in Boston Personal Injury Lawsuit (The Injury Blog)
  
• Pediatric Grand Rounds 2:4 (Adventures of an awesome (sometimes) mother)
• Dr. Flea, Pediatrician blogs his own med-mal suit, learns the perils (The blawgraphy)
• On Flea and Fishing (Dr. Wes)

Last Addendum: After interviewing plaintiff's counsel, I wrote three more posts on the subject:

• Deconstructing the Trial of Flea - Part 1
• Deconstructing the Trial of Flea - Part 2
• Flea, The Boston Globe and Morality in Journalism and Blogging

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

A Boston pediatrician blogging under the pseudonym Flea has been outed. It happened in court. During cross-examination. On his own medical malpractice trial. And now it is the top story in the Boston Globe.

Flea had written several posts about the upcoming trial, a wrongful death case involving a child. In the process he discussed his private prep sessions with his attorney, explaining how he had been coached to answer questions to be appealing to the jury, how he had been videotaped, and what materials his lawyers told him to read.

After seeing this, I wrote of the extraordinary risks of such disclosures, even under cover of pseudonymity. (See, Medical Malpractice Trial Starting For Med-Blogger.) The issues I raised, in the event plaintiffs' counsel discovered his blog, ran to the risks of losing his attorney-client privilege for all such communications. If this happened, he could be cross-examined on how he was coached by his defense team to act in front of the jury and the advice they gave him. He also ran he risk of his own insurance carrier trying to disclaim coverage if it thought he was hindering the defense.

Shortly after, he took down three blog postings (Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts), asserting he was superstitious and didn't want to jinx things that were going well. Then he took down the entire blog, without explanation (Med-Blogger Flea, Previously Live-Blogging His Trial, Takes Down Entire Site).

Dozens of medical and legal bloggers had commented on the live-blogging of the trial, as well as the subsequent, unexplained disappearance of the popular, award-winning doctor-writer.

Well, as revealed in today's Boston Globe, it appears that plaintiff's counsel did find out about the blog. And at the end of the day when Flea was on the witness stand in "a Perry Mason moment," the questions came:

Do you have a medical blog?
Are you Flea?

As per the Boston Globe article, court adjourned for the day, and the case quickly settled.

Why did he do it? While I don't know Flea, and have no connection to him other than these postings, my best guess was this: He loved writing and this was great material. The subject was, simply put, irresistible. I know that I found his activity fascinating, not only for its raw content, but also for the walking-a-high-wire-without-a-net danger of what he was doing. As seen in the links below, I clearly wasn't the only one rubbernecking.

How many people took note of this ongoing saga? These links help tell the tale (and there are others), both for the uniqueness of a doctor live-blogging his own malpractice trial and also due to the huge popularity of the blogger:

• Liveblogging a malpractice trial (Overlawyered);
• Getting Inside a Medical Malpractice Case (Law.com Blog Network - Carolyn Elefant)
• MD Blogs Own Med-Mal Trial (Law.com Blog Network - Robert Ambrogi)
  
• Jury Notes From Elsewhere, May 11: Trial through the defendant's eyes (Deliberations)
• Through the Eyes of a Flea (Simple Justice)
• Flea's trial blogging catches a lawyer's attention (Kevin, M.D.)
• Blogging Your Own Med Mal Trial (TortsProf)
• Medical Malpractice Defense Lawyers' Nightmare Client (Hans Poppe, with archived Flea posts:
• Flea Takes A Screen Test (April 24th)
  
• What do malpractice juries care about (April 26th)
  
• Flea on Trial-Day One, Jury Selection (May 9th)
  
• The Flea Circus (symtym)
• On the blogs: malpractice trial prep (Boston Globe Blog, White Coat Notes)
  
• Black Wednesday: A dark day for the medical blogosphere (Kevin, M.D.)
  
• The Flea Bite (or lessons learned from angry fans) (Simple Justice)
  
• Medical Bloggers: Held to a Privacy Double Standard? (Dr. Wes)
• FEAR NOT: Picking Up The Gauntlet In The Medical Blogosphere (Dr. J's House Calls)
• Medical Blogging and the Tragedy of the Commons (Stranger Than You Can Imagine)
• Dr. Flea Disappears (Doctor Anonymous)
  
• One Injustice After Another (Moof)
• The Dearth of Physician Bloggers (intueri: to contemplate)
  
• Flea Gone (Scalpel)
• The Death of a Flea (Tales from the Emergency Room)
  
• Where Have All The Medical Bloggers Gone? (From Medskool)
  
• Farewell and Goodluck (Tales from Health Records)
• What happened to Flea? (Scanman)
• In Memorandum (Highlight Health)
• 2 Medical Blogs Shut Down (Revolution Health)
  
• Dark Days in the Medical Blogosphere (MSSP Nexus Blog)
• The "Butterflying" of the Medical Blogosphere (Mexico Medical Student)
• I am a blogger. I am a doctor (Musings of a Distractible Mind)
• What is Happening to Medical Blogs (Tales from the Womb)
• The Medical Blogosphere (It's all about the walls)

Finally, this case was a tragedy for two parents, and a nightmare for a doctor. If the parents had lost the trial, it would have added yet another layer of extraordinary emotional trauma. If Flea lost, it would no doubt have been emotionally difficult for him. A settlement allows each to move on with their lives without the additional fallout of a jury's verdict. The parents might feel they had their day in court and that the settlement was based on the merits, while Flea might feel it was based on his own carelessness with his writing and the concerns a jury might not like the way his legal team was trying to manipulate the jury. Neither won and neither lost. And sometimes that is all for the best.

Addendum: Here is a cached version of Flea's old site before it was taken down. (Hat tip to Hub Blog)

2nd Addendum: More on Doctor "Flea" Being Outed On The Witness Stand


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

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

Legislation that would provide federal funding for experimental "health courts" for medical malpractice cases has once again been introduced in both houses of Congress.

The bill calls for the federal government to fund experimental programs, yet to be devised, in numerous states. If the current version is like the last version from two years ago, several different models of courts are proposed, each of which raises various issues:

1. The first "Purpose" of the act is to "to restore fairness and reliability to the medical justice system." Given that research shows the current system works remarkably well, starting with a false premise probably doesn't help. (See, The Myth of Frivolous Litigation)
2. The Seventh Amendment to the U.S. Constitution guarantees jury trials, and at least some of these models clearly look to do away with the jury.
   
3. While details are lacking there are a few that appear, and this includes the effort to limit non-economic loss (pain and suffering). Instead of a jury doing what is fair and reasonable under the unique circumstances of a case, the government will create "a defined payment schedule." This is an inherently unworkable and unfair system for it is silly to assume that all injuries can be neatly placed into categories. It will, of course, adversely affect those most seriously injured who do not fit into the neat little government boxes that are created.
4. One of the other rules provides for, "payment for the net economic loss of the patient, on a periodic basis." But if a person lost something today, why should they be forced to wait for their compensation? This statement looks like it was drafted by the insurance lobby so that they could write annuity policies for the future payments.
   
5. A least one of the models discourages fair offers of settlement. How? By this provision: "provide immunity from tort liability to any health care provider or health care organization that offers in good faith to pay compensation." Good faith is a malleable concept. By merely making a token offer -- not one of fair value but just good enough to get past "good faith" -- they are rewarded with immunity from suit.
6. And finally a political question: Why is the federal government extending its powers even more into matters that are almost always strictly state issues?

See also frm this blog, Medical Malpractice - Vetting the Case and Medical Malpractice Economics)
(hat tip to Sui Generis)

Addendum, 5/30/07: Why Health Courts Are Unconstitutional (Center for Justice and Democracy); Health Courts: Bad for Patients and Unconstitutional (Center for Justice and Democracy, via TortDeform)

Labels: Medical Malpractice

According to Greg Beck of Public Citizen, they have filed their responsive brief on behalf of the plaintiffs in the lawsuit regarding New York's new advertising rules for attorneys. Initial briefs can be found here (along with other links) from my update last week. The Public Citizen response can be found here: ResponseMemorandum.pdf (There was no responsive brief from the State.)

The central argument of the plaintiffs is that restrictions on commercial speech cannot be upheld without evidence that the restrictions alleviate real dangers, and that less restrictive options are not available.

In the past, I have discussed the vagueness of some of the rules with respect to New York attorney websites, so I found this particular piece of the response interesting:

The rules do not define a "technique[] to obtain attention" or explain what sorts of techniques are "relevan[t] to the selection of counsel." Nor do they provide any guidance as to what lawyer characteristics are deemed to be "unrelated to legal competence" or what sorts of statements "impl[y] an ability to obtain results in a matter." The rules, by their plain language, are so broad in scope as to cover essentially every advertisement ever used by an attorney beyond a business card, letterhead, or resume. Because all advertising will potentially be banned, bar authorities will be able to pursue enforcement against any attorneys whose advertisements they find personally distasteful, while ignoring most other ads. Unfettered discretion to distinguish among different speakers invites arbitrary enforcement and inevitably chills free speech rights. Moreover, in the absence of clear guidelines, attorneys will not know how to comply.

I still don't know the answer to this question I posed on January 24, 2007: Is My Family Photograph An Ethical Violation in New York?

Labels: Alexander v. Cahill, Attorney Ethics

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

Lawyers, drugs and money were big in the news this week, so we'll alter the format a bit:

Let's start with the money, before going to drugs and lawyers, and money starts with tort "reform." Michael Townes Watson discusses at TortDeform, the fact that Medical Malpractice Reforms Don't Increase Healthcare Safety;

And since we start with tort "reform," I'll point out that both Day on Torts and The Hartford Courant have stories on medical malpractice premiums dropping. That tends to happen when Mr. Market goes up, and a malpractice "crisis" develops when Mr. Market goes down;

Tort "reform" also leads to discussion of damage caps. But sometimes caps aren't instituted by the legislature but by the limits of an insurance policy. Unfortunately, the merits of the action often take a back-seat to the practical realities of insurance coverage, as noted by Charles Silver at TortDeform in How Much Malpractice Coverage Does Your Doctor Have?

Now on to drugs: There was big drug news this week on Avandia, GlaxoSmithKline's diabetes drug now implicated in cardiac deaths, courtesy of an article in the New England Journal of Medicine. A round-up of many medical posts can be found at the Clinical Cases and Images Blog. New TortsProf blogger Sheila B. Scheuerman collects some posts on the problems at FDA regarding its approval process at Hearing on FDA's Role In Evaluating Drug Safety. And perhaps most significantly from a medico-legal (and political) perspective, Public Citizen has stated that the FDA knew back in 2002 of the heart problems (via Pharmalot); And if you can't get enough of the subject, Kevin, M.D. (the Howard Bashman of the medical world) has links to many more;

Can we bring a state-based pharmaceutical case based on the drug's labeling, or does the drug company enjoy immunity because it was FDA approved? This goes to the heart of a state-federal power struggle that has roiled the nation since it was born, with the feds now wanting to claim it can preempt state laws without congressional approval, but with mere FDA support. Ironically, the seizure of such power is taking place under a Republican administration. Ed Silverman's Pharmalot brings us the action for a case the Supreme Court may want to hear;

It could be, of course, that the drug problem isn't from the labelling, but from dispensing too much. How does that happen you ask? Automatically. OnThePharm fills us in on the sad facts of auto-refills;

Did we check out that doctor that urged us to have surgery? Ben Stevens at the South Carolina Personal Injury Law Blog tells us of three doctors facing up to 50 years in prison for recruiting patients to undergo needless surgeries in order to defraud insurance companies;

Now on to the lawyers: As we look for an attorney, we wonder in this day and age of scams and con artists, is this person really an attorney? Solo Carolyn Elefant of My Shingle fame helps us find out;

It used to be that many would use Martindale-Hubbell to find, or at least research, counsel. But that seems to be going the way of the dinosaur, as Robert Ambrogi lets us know at Law.ComBlog in Firms Opt Out of Martindale-Hubbell;

But just being a member of the bar is no guarantee you have the right counsel. As Ken Shigley writes at his Atlanta Injury law and Civil Litigation Blog, there are unethical chiropractors, lawyers and runners out there, and it disgusts him. According to Ken, The Bar should act to penalize and deter illegal and unethical case solicitation. Yell it loud, Ken, I think the vast majority of us are in your corner. I hit a similar mark in one of my first posts as a blogger, discussing how to find a personal injury attorney;

In a similar vein, Tony Caggiano from the Orlando Injury Lawyer Blog reports: Federal Judge Acts on Improper Solicitation by Counsel. The reality is that if we don't get rid of the bad apples, they will continue to tarnish the reputations of us all;

How will the lawyer get paid is an important issue, and more so since President Bush decided he didn't want the federal government hiring lawyers on contingency. Better to let a firm run the hourly meter, I guess, than to pay for the efficiency of the contingent fee arrangement. The padding of those hourly bills is part of the opening to Enrico Schaefer's Blawg Review #109 at The Greatest American Lawyer. Beck/Herrmann (Drug and Device Law) rounds up a slew of posts on the subject of the contingency fee arrangement, but never seems to address the fact that padded hourly rates could be far worse;

The judge you are assigned to might be in issue, if your case is in Florida and the insurance company doesn't like the judge. According to Ronald Miller of the Maryland Personal Injury Law Blog, it seems one general counsel went so far as to accuse a judge of being "paid off." While we're over at that blog, we might as well rummage the many pleadings, motions and discovery devices that make up their Attorney Help Center to see if they can be of use to us;

And on to a few lawsuits: Some actions are easier than others, and no one will say the September 11th suits regarding post-attack air quality are easy. Sheila B. Scheuerman at TortsProf reports that the New York Medical Examiner has now confirmed a new death was due to the bad air, and discusses the ramifications for those pending lawsuits;

Since we are at TortsProf, Williams Childs lets us know of two odd amusement park lawsuits that struck his interest;

This New York legal malpractice case was premised on a medical malpractice case with a result the plaintiff didn't like. Plaintiff's counsel rejected a $1m offer and there was a subsequent $350 jury verdict. Plaintiff claims she was not properly informed of the offer. The case speaks to many different issues including jury risks, communications with client, and properly prepping your client for trial (via New York Attorney Malpractice blog);

And now for some quirky weekend reading/viewing:

MonkeyGirl isn't pleased about all those pharma ads she sees, and figures out a way to wrap them into one with Men and their Pee-Pees; She also wants asks you....make that begs you...to make sure you and your children wear their seat belts, or else...

Biker-lawyer Norman Fernandez at the Biker Law Blog gets euphoric over the perfect commercial, while also showing us via video How to Get Yourself Killed Speeding on A Motorcycle in a Curve;

One more video, a classic Monty Python skit about lawyers (well, it's about arguing) brought to you by Nicole Black at Legal Antics;

And finally, David Lat at Above the Law teaches us one thing to never say to a judge: "I suggest to you with respect, Your Honor, that you're a few French fries short of a Happy Meal in terms of what's likely to take place." And without peeking, any thoughts on what the judge did?

Put up the flag and enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

I must be more influential than I thought. The Chinese government has banned my little blog.

This website will let you know if you too have somehow incurred the wrath of the Chinese government: Banned in China?

I'd like to think that my banishment occurred due to my subversive pro-democracy, anti-Chinese comments. But, alas, I've never written on the subject.

So I guess the Chinese government, like many people right here at home, simply don't like law and lawyers.
(hat tip, Capitol Confidential)

Labels: Odds and Ends

A medical malpractice case settles early. And the doctor then claims that the insurance company was looking out for its interests instead of his own. He has sued his insurer.

The case is classic in the sense of exploring the conflict of interest between the insurer that wants to settle and the insured that doesn't.

But it's also highly unusual because, where I come from, medical malpractice cases never settle early so this is never an issue.

Here are the facts (from the Daily Business Review via Law.com): In 2002, the estate of a patient filed a malpractice claim against a doctor, who then notified Chicago Insurance, his liability carrier. Under Florida state law, the firm had 90 days to investigate the claim and decide whether to contest it or settle the case. (No such law exists in New York.)

According to an appellate court, the company ignored the doctor's protests that the case was defensible and did not undertake any study of his claims until a week before the deadline. The company elected to settle the claim instead of defending as the time was running out.

But that decision put a black mark the doctor's record and affected his insurability, he claimed. Chicago Insurance then canceled his policy and the doctor was forced to pay substantially higher premiums to obtain new coverage.

After a lower court dismissed the case, the doctor appealed, and has now won the right to go to trial. The language at issue included this:

"Any offer of admission of liability settlement offer or offer of judgment made by an insurer or self-insurer shall be made in good faith and in the best interest of the insured."

But, the court said, in return for accepting a policy giving the insurer the exclusive authority to settle claims within policy limits, the insurer must exercise its authority in the best interests of the insured, not in its own self-interest. The court held that "This obligation is solely for the benefit of the insured. If the insured cannot enforce this obligation, then it has no effect at all."

Labels: Insurance Industry

While doing some quick research on lawyer's pay-per-click ads for "Avandia Attorneys" I noticed something odd:

My own post from yesterday on the subject came up on Google's first page of its natural search.

Now my office isn't looking to handle such cases, but if my modest little posting appears there it certainly speaks to the enormous marketing potential of these forums. This is a good example of a subject Kevin O'Keefe writes of often.

Labels: Blogging

From today's New York Post:

May 23, 2007 -- Dr. Sherrell Aston, one of the world's most acclaimed cosmetic surgeons, is being sued by a Connecticut man who claims the renowned doctor's "gross negligence" led to his wife's death.

Susan Malitz, 56, had gone to Manhattan Eye, Ear and Throat Hospital in 2004 for what was supposed to be a routine face-lift operation by Aston, whose patients have reportedly included Tipper Gore, Anna Wintour and Catherine Deneuve.

Two hours later, Malitz was dead - the second patient to die during cosmetic surgery at the hospital in a two-month period.

The claim is lidocaine toxicity, as found by the New York Medical Examiner. Dr. Aston says the medical examiner is wrong. An article from 2004 in the New York Times on the matter is here.

Addendum 5/25/07 - The case has now settled for $3.1M, with the anesthesiologist, Dr. Gary Mellen, paying $2.7M and the hospital $400K. Settlement also appears in the New York Post.

Labels: Interesting Cases in the News, Medical Malpractice

The story broke on Monday regarding the cardiac problems with Avandia, a diabetes drug by GlaxoSmithKline.

On Tuesday I took a look at Google's sponsored links for the search phrase, "Avandia Attorneys" and it showed three results, shown here in this screen shot: AvandiaAttorneysMay22.pdf

I checked again this afternoon and, no big surprise, the number has jumped. Now there are 11 seen at this screen shot: AvandiaAttorneysMay23.pdf

[Addendum 5/24, 9:00 a.m. - Overnight, two new websites appeared in the pay-per-click Google ad space with Avandia as part of the domain name. A week from now, the landscape will no doubt be far more cluttered than today.]

For those interested in the subject of attorney advertising, it will be an interesting metric to watch.

And if, by chance, you were wondering if this violates New York's new "30 day rule" that prohibits attorney advertising within that time frame for an incident, the New York State Bar Association has this helpful FAQ:

Question:

Do web sites which are aimed at lawsuits against specific manufacturers or causes of action (i.e., vioxx, etc.) fall in the "specific incident" provision of DR 7-111 such that, for example, once the FDA reports the danger of the drug publicly, the 30 day rule is triggered?

Answer: The use of the term "incident" in DR 7-111 apparently does not relate to the announcement of information. Rather it appears to relate to the injurious incident -- i.e., an incident such as the Staten Island Ferry crash.

Labels: Attorney Ethics, Interesting Cases in the News, Odds and Ends

The trial has been cancelled for the lawsuit started over New York's new attorney advertising rules that went into effect on June 1, 2007. According to Greg Beck, who has been litigating this matter for Public Citizen:

We had a trial scheduled on June 18, but since then we agreed that there were no disputed facts and cross moved for summary judgment. We have oral argument on June 18 instead of trial. We also have our [preliminary injunction] motion still pending, and there's a good chance the judge will at least rule on that, if not on the summary judgment motion, on June 18th....

Opening briefs are attached along with stipulated facts. Response briefs are due Friday.

• Plaintiffs-Memorandum.pdf
• Stipulation-of-facts.pdf
• State-Memorandum.pdf

Prior posts on the subject can be found here:

• New York Attorney Advertising Suit To Go To Trial;
• New York Responds to Lawsuit Challenging New Attorney Advertising Rules -- By Banning Humor;
• Skadden Website and Others Named In Ethics Lawsuit;
• New York Lawyer Advertising Rules-FAQ (Sui Generis)

Addendum 5/29/07: A responsive brief by Public Citizen has now been posted here.

Labels: Alexander v. Cahill, Attorney Ethics, Judiciary

About 95-98% of medical malpractice inquiries to my office are rejected. Having previously discussed medical malpractice law and the economics of bringing such an action, mostly for the med-bloggers and tort "reformers" who tune in to this station, let's turn to the decision-making process for a short step-by-step. Remember that, since the case will not settle easily, and the painful economics of the contingency fee punish you harshly for picking poorly, the case better be strong. And one can safely assume that, as Ronald Miller points out at the Maryland Injury Lawyer Blog, the doctor or hospital will not admit an error.

1. The Phone Call: Most inquiries don't make it past this stage. Often, the complaint is of a bad result, discourteous conduct that leads to suspicions, or a plain old failure to understand what happened. This can be related to bad bedside manner, or an individual that unexpectedly finds himself listening to complicated medicine while in a state of high anxiety and distress. The potential client often doesn't know how, if at all, the doctor departed from accepted medical practice. (When the call is made by another attorney seeking to forward the case on to me, the rejection rate is lower since s/he has already done a vetting process.)

2. The Interview: You find out more in person than by phone. Some people already have records or portions of records that help to reconstruct what happened. Friends and relatives may have bits and pieces of information that help. The reliability of the potential client(s) can also be evaluated.

3. The Record Review: This is often the first real expenditure, so you have to have a pretty good idea that the matter is worth pursuing. In New York, you'll be hit for 75 cents a page, and the page totals can be daunting for substantial injuries. Then comes the hours of review. Assuming the matter still warrants attention after these three steps, we go to the expert(s).

4. The Expert Review: There is no case without an expert, unless you have a rare res ipsa case. And your expert has to be good, or s/he will get chewed up during a trial. If you hire an expert that is, shall we say, flexible with the standards of care and willing to go the extra mile for you, you will likely find yourself bankrupt. Bad cases don't settle. About 70% of malpractice cases are lost at trial, and juries don't like to bring back verdicts against doctors. The expert who reviews a bad case and tells you "no" is helping you while the expert that tells you "yes" is hurting you. Choose wisely.

5. The Other Expert Review: Remember that the negligence must be a substantial cause of the injuries. It doesn't help you to win the liability phase of the trial if there is no causation. While an internist might be able to testify on the breast lump that should have been biopsied, it is the oncologist that you need for discussion of whether the length of the delay in treatment was significant. There is a good chance you need multiple experts, just to decide if a case should be brought.

This process, a form of which exists in any law office that takes such cases on a regular basis, results in substantially weeding out the bad claims.

Finally -- and this is not an issue often discussed -- those that advocate dismembering the malpractice system and replacing it with some type of no-fault or other system with lower barriers fail to realize that it would result in an absolute flood of matters pouring in, significantly eclipsing that which now exists. But that, I suppose, is a question for another day.

Labels: FAQ-Medical Malpractice

Last week, New York's highest court did something I've never seen. And lawyers I have spoken with have also never seen it.

They wrote a decision without any citations at all. Not one. If anyone else has ever seen such a thing from a state's highest court, I'd love to hear about it.

The decision is reproduced in full below (Scott Greenfield, loved the caption, People v. Person, and the substance is also discussed by Nicole Black at Sui Generis):

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on May 8, 2007
No. 66

[*1] The People & c., Respondent,
v
Paul Person, Appellant.


MEMORANDUM:
The order of the Appellate Division should be affirmed. Defendant orchestrated a robbery that was perpetrated by two accomplices whose actions resulted in the death of the victim. After being apprehended by the police, the accomplices gave videotaped statements incriminating themselves but exculpating defendant of involvement in the crime. The [*2]accomplices later entered into cooperation agreements with the People and gave testimony at trial detailing defendant's role in planning the robbery.

During cross-examination of the accomplices, defense counsel used the transcripts of the videotaped interviews to impeach the credibility of the witnesses by questioning them about the prior inconsistent statements each had initially made to the police. Both accomplices acknowledged they made the prior inconsistent statements. Defense counsel then sought to introduce the videotaped interviews into evidence. Supreme Court denied the request because the accomplices admitted they made the statements on the videotapes. Defendant was subsequently convicted of multiple counts of robbery in the first and second degrees.

Before our Court, defendant asserts that preclusion of the videotaped statements was erroneous as a matter of law because Supreme Court failed to recognize that the jury could not reliably gauge the credibility of the witnesses without viewing their demeanor and hearing their voices during the police interviews. At trial, however, the crux of defendant's argument was that he should be able to use the videotapes, rather than the transcripts, to prove the content of the prior inconsistent statements. Defendant at that time failed to explain how the videotapes would have conveyed information beyond that provided by the verbatim transcripts of the statements. As a result, he did not preserve his current contention that Supreme Court had discretion to admit the videotapes because they were relevant to the jury's ability to reliably evaluate the credibility of the witnesses. We therefore have no occasion to consider whether the preclusion of this evidence constituted an abuse of discretion as a matter of law. Defendant's constitutional claims are similarly unpreserved.

Labels: Judiciary

The New York Personal Injury Law Blog presents the week that was, taking you from pre-litigation through verdict and appeal:

Before heading into the courtroom, we look in on risky conduct that leads to lawsuits, check to see that the courthouse doors are open, and that we've selected the right attorney for the job:

Are our consumer products safe for us to use? Depends on who you ask. But if President Bush has his way with the nomination of Michael Baroody to head the Consumer Product Safety Commission, you will certainly think twice about it. Seems Pres. Bush wants the lobbyist for the National Association of Manufacturers to watch out for safety. David Arkush at the Consumer Law and Policy Blog has the action;

Do you think our drugs are safe? What if the pharmacist can't even read the chicken-scratch that passes for a prescription? On The Pharm has a few examples of illegible prescriptions;

When does a Good Samaritan law apply? Well, not in the emergency room in North Dakota when a doctor expects to be paid, (OnPoint LegalNews) even if he was called in an emergency while waiting to operate on another (via Kevin M.D.);

Do we have the right counsel? Well, if the gov't hired private counsel on a contingency, there may be an issue at stake, as Howard Erichson discusses at the Mass Tort Litigation Blog in States Revise Policies on Outside Counsel. Subsequent to that post, Pres. Bush signed an executive order banishing the practice on a federal level, though the order doesn't seem to me to make much sense;

Before we start a suit, we better make sure it's good. Unlike the matter of the horse that lost the Triple Crown because of an article in the newspaper (via WSJ Law Blog). Yeah, you read that right. In dumping the suit, Florida's Judge Gary Farmer ripped into traditional judicial style style in this concurring opinion in Funny Cide Ventures v. The Miami Herald (via Orin Kerr at Volokh who hated the piece);


Our case hasn't settled and we believe we have the all-clear for litigation, so off we go:

We need to carefully consider the causes of action for that medical malpractice case, because it might also be a breach of warranty case as Jacob Goldstein of the WSJ HealthBlog notes in A Warranty for Heart Surgery;

We also need to make sure we have the right parties. Demonstrating that an injury can have multiple causes, this lawsuit was brought against State Farm for denying coverage for surgery that doctors agree could have prevented her paralysis (via the Injury Blog);

If our state has one of those one-size-fits-all caps that deprives the most badly injured of fair compensation, we might have a problem. As Justinian Lane at TortDeform points out in a man-bites-dog type of story, however, at least one Oregon hospital wants to see the cap raised;

Discovery can sometimes be tricky. Here, the Florida Supreme Court weighed in on a medical malpractice case regarding discovery requests for hospitals to turn over lists of hospital privileges granted to physicians by the facilities' credentials committees;

Also on the subject of medical malpractice, pediatrician and med-blogger Flea, who had started live-blogging his own malpractice case, first took down three recent posts last week, and has now taken down the whole site without explanation. Kevin M.D. wonders if we are seeing the demise of the medical blogosphere with other docs taking down their sites;

Did cross-examination go as well as we thought when we caught that particular witness with prior inconsistent statements? The Drug and Device Law Blog has An Empirical Study Of The Value of Impeaching With Prior Inconsistent Statements;

Sometimes we settle during discovery. Jim Higgins reports, from the Tennessee Law Blog, a $64 million class-action settlement regarding the effectiveness and dangers of Paxil on minors;

Will the verdict withstand appeal? In a Ford rollover case with a $55M punitive damage award, the US Supreme Court has remanded the punitive damages for consideration in light of the recent case of Philip Morris v. Williams regarding jury instructions in such cases. The problem, as readers of this space know, is that the Supreme Court had issued a very confusing opinion in Philip Morris; As it happens, Traci M. Braun and Thalia L. Myrianthopoulos wrote on the subject this week for Law.com in 'Philip Morris' Decision May Be Hazardous to Jurors' Comprehension; And Rob Luke has yet more on at LegalNewsLine;


With the week done, we pack our trial bag up and go home with some lighter weekend reading:

• Ever wonder what it was like to actually cut open the body? Find out at SurgeonsBlog in Operation, Deconstructed. Two: cutting in;

• A new legal humor blog debuts, Legal Antics, brought to you by Nicole Black of Sui Generis fame;
  

• And finally, at Lowering The Bar, Fake-Lawsuit Plan Derailed by Chance, Stupidity.

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

Any trial attorney knows the phrase that must be asked of the medical expert: Do you have an opinion, with a reasonable degree of medical certainty, that...

This may now change. According to a blog posting by John Day (Day on Torts) late yesterday, the American Law Institute is scrapping that phrase for the Restatement of Torts, 3rd. According to Day:

Among the actions taken by the ALI at the meeting in San Francisco this past week was the rejection of the need for the magic words "reasonable degree of medical certainty."

The following language was approved for Section 28(a) of the Restatement of Torts Third:

"Subject to Subsection (b), the plaintiff has the burden to prove that the defendant's tortious conduct was a factual cause of the plaintiff's physical harm."

Subsection (b) describes the circumstances under which the burden of proof is shifted to the defendants.

Comment (e) rejects the need for an expert to state an opinion to a "reasonable degree of medical [or scientific] certainty" or a "reasonable degree of medical [or scientific probability." The Comment states that "[t]here is a troubling inconsistency in imposing a higher threshold for the admissibility of expert testimony than is required for a party to meet the burden of proof" and that "the reasonable-certainty standard provides no assurance of the quality of the expert's qualifications, expertise, investigation, methodology, or reasoning."

The Reporter's Note cites with approval Judge Cain's opinion in Bara v. ClarksvilleMem'l Hospital Sys., Inc., 104 S.W.3d 1 (Tenn. App. 2002) ( holding instruction to the jury requiring plaintiff to prove causation to reasonable degree of medical certainty was erroneous and required reversal.).

Labels: Medical Malpractice

If "lawsuit abuse" were a real problem, why would the Chamber of Commerce (lobbying arm of big business), need to run a misleading ad?

From Factcheck.org:

The U.S. Chamber of Commerce is running a TV ad alleging that "lawsuit abuse" is costing "your family" $3,500 a year. That's false. The figure is from a study that estimates the cost of all lawsuits, not just abusive ones.

Even the author of the study cited by the chamber says its ad is "misleading." The fact is his study makes no attempt to specify which lawsuits are legitimate and which can be considered abusive. Furthermore, the study specifically warns against drawing any conclusions about the costs and benefits of the judicial system and even acknowledges that the benefits could outweigh the costs. The chamber ignores this warning. It also fails to note that the same study estimates the cost of all lawsuits at the lowest level in 10 years.

That's the summary. The analysis follows at the link above.

Labels: tort reform

The Center for Science in the Public Interest filed suit yesterday against Burger King seeking an injunction to stop the use of deadly trans fats in frying and cooking its food, or alternatively, forcing the company to disclose to its customers prior to purchase of the food that it contains trans fats. A copy of the Complaint is here.

According to Stephen Gardner at Public Citizen's Consumer Law and Policy Blog,

Burger King is at fault in two different ways. First, of course, is the fact that Burger King is the only top restaurant chain that has not either eliminated trans fats or is making sincere and significant steps in that direction. All Burger King is willing to promise is that, by the end of 2008, it will start the process to get rid of trans fats. They want their customers to pay the price of their foot-dragging.

Second, while it is creeping along in its purported efforts, Burger King doesn't want its customers to know that it still uses trans fats. It wants to complete with places like KFC and Wendy's, which have gotten rid of trans fats, but it doesn't want to compete fairly.

The suit is premised on

1. Deception and misrepresenation, and
   
2. Breach of implied warranty of merchantability.
   

Labels: Personal Injury

President Bush signed an oddly worded Executive Order today that outlawed contingency fees for "legal and expert witness services provided to or on behalf of the United States."

This, of course, makes little sense. On the one hand, private counsel hired by the government to bring a civil matter runs an inherent conflict: Private counsel has an obligation of "zealous advocacy" while government counsel must be impartial. So an argument could be made for banning private attorneys. But by banning only those that work on contingency, this objective was not met since government can still hire private counsel on an hourly basis. By going half way, the administration failed to eliminate the conflict.

If you look at the title of the order, it says "Protecting American Taxpayers From Payment of Contingency Fees." So where is the protection from hourly attorneys who profit by making litigation more complex and drawn out and running the meter on the taxpayer's back?

Second, the Executive Order bans contingency payments to experts. Except that experts are already banned, so far as I know, from working on contingency. An expert can't exactly be impartial if they are only paid if they win. Thus, it appears that the administration banned a practice that already wasn't allowed.

The order can be found here. (Hat tip to Overlawyered) See also Beck/Herrmann on why hiring outside counsel represents a conflict.

Addendum 5/18/07 - Mulling this over some more, I see the order as even more bizarre for additional reasons: Any government contract is subject to potential problems, a subject often seen with military and construction contracts. At least with contingency fees the taxpayers won't have to lay out any money, and recovery will only come if the suit is successful. This will cost the taxpayers in the long run, with higher expenses and lower recoveries. This was, pure and simple, just another attack on trial attorneys since most tend to vote Democratic. It was politics superceding policy.

Labels: Odds and Ends

Pediatrician and med-blogger Flea, who had been chronicling his own medical malpractice trial regarding the death of an infant, has apparently taken down his site. Not just a few posts as he did last week, but the whole thing. My initial thoughts on the risks of his losing the privileged nature of his contact with his attorneys and the risks to his own insurance coverage if his pseudonymous identity were revealed, were first published in Medical Malpractice Trial Starting For Med-Blogger. He was believed to be the first person to live-blog his own trial.

Best guess from here? He told his attorneys what he was doing and their heads exploded due to the risks I had discussed. But win, lose or settle, I think we'll see his award-winning blog reappear when the litigation is over.

On a side note, posts can still be seen in my RSS reader, probably due to his having deleted them instead of "modifying" them. Had he modified (by simply by substituting anything else), I think that all RSS readers and caches would then have been updated to show only the new content. Something to think about if any of us wants to delete a post for any reason.

Addendum 5/31/07 - Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

The issue of counterfeit drugs and the push for radio frequency identity tags is raised in the cover story of FedTech Magazine.

The article, which features my client Tim Fagan and his injection with counterfeit Epogen back in 2002, can be found here: Tag & Release.

This is the lede:

The Fagan family of Long Island, N.Y., thought they were out of the woods when their 16-year-old son, Tim, came through a lifesaving liver transplant in 2002. Yes, he would need to take immune-suppressing drugs for the rest of his life, but his prognosis was good.

Among the drugs in Tim's regimen was Epogen, an anti-anemia medication prescribed to help boost his production of red blood cells. Tim's mother administered a weekly injection of the drug, bought from the local branch of a national pharmacy. But hours after the shot, Tim would wake up screaming in excruciating pain. His doctors had no explanation, and no one would have guessed the cause was fake pharmaceuticals.

"The first night I thought someone had broken into his room and was attacking him," says Tim's father, Kevin Fagan. "It was a very emotional and very painful thing to watch our son suffer. To find out two months later that he was taking counterfeit drugs just blew us out of the water. We couldn't believe counterfeit drugs even existed."

For more on the subject, click on the counterfeit drugs label at this blog or visit my firm's Counterfeit Drugs Resource Page.

Labels: counterfeit drugs

This case was about the extent to which an attorney can, during a lawsuit, contact the former Executive Vice President and Chief Operating Officer of a company and have a conversation with him, without counsel. The officer had been deeply engaged in the action before he left the company. The trial court had disqualified the law firm because "there was an 'appearance of impropriety' based upon the possibility that privileged information had been disclosed during the interview."

Not so, said the Appellate Division, a decision that was affirmed by New York's highest court late last week. The Court of Appeals held that the contact was not an ethical violation, so long as certain precautions were taken. Since the issue of contacting former employees comes up in a variety of contexts, the details are instructive.

Muriel Siebert, a discount brokerage, sued Intuit regarding a deal to jointly create and operate an internet brokerage service. A successful partnership soured when Siebert asserted that Intuit had failed to promote the internet brokerage service to its customers, and Siebert sued on breach of contract, among other things.

The officer in question, Nicholas Dermigny,

was both an important participant in the events at issue in the Intuit lawsuit and a member of Siebert's "litigation team" after the lawsuit began. He participated in the negotiations of the Siebert-Intuit agreement and discussions with Intuit relating to its implementation. He also assisted in drafting the complaint and responses to interrogatories, was privy to discussions concerning Siebert's litigation strategy, and engaged in privileged and confidential communications with Siebert's counsel.

Thereafter he left the company and Siebert informed Intuit that he could not be produced for deposition because they no longer controlled him.

So Intuit's attorneys contacted him without Siebert's knowledge and arranged for an interview. Before commencing the interview, Intuit's attorneys advised Dermigny that he should not disclose any privileged or confidential information, including any conversations with Siebert's counsel, or offer any information concerning Siebert's legal strategy. Dermigny was further cautioned that if, during the interview, he was asked a question that could potentially lead to the disclosure of such information, he should so advise Intuit's attorneys and decline to answer the question. Intuit's attorneys then questioned Dermigny about the underlying facts of the case, but did not elicit any privileged information nor inquire about Siebert's litigation strategy.

The ethics rule in question applies only to certain current employees of a party. The Court of Appeals made clear that ex parte communications with nonmanagerial employees are permitted, but adversary counsel are prohibited from directly communicating with employees who have the power to bind the corporation in litigation, are charged with carrying out the advice of the corporation's attorney, or are considered organizational members possessing a stake in the representation

Since the officer was no longer an employee, that rule didn't apply. Further, the Court held that that disqualification of defendant's counsel was not warranted since Intuit's attorneys properly advised Dermigny of their representation and interest in the litigation, and directed Dermigny to avoid disclosing privileged or confidential information. They also directed Dermigny not to answer any questions that would lead to the disclosure of such information. Dermigny stated that he understood the admonitions and, on this record, no such information was disclosed. Thus, there was no basis for disqualification.

The case is Siebert v. Intuit.

Labels: Attorney Ethics

The New York Personal Injury Law Blog presents the week that was, taking you from pre-litigation through verdict and appeal:

Before heading into the courtroom, we look in on risky conduct that leads to lawsuits, check to see that the courthouse doors are open, and that we've selected the right attorney for the job:

We start with drugs, as Byron Stier at the Mass Torts Litigation Blog reports that Amgen and Johnson & Johnson, manufacturers of Epogen and Procrit, may have to cut back the over prescription of the drug. Why was it over prescribed? Well, the New York Times reports that millions in "rebates" were given to doctors who administer the drug. Of course, one man's rebate might be viewed as another man's kickback. Think the over prescribing and the, uhh, "rebates" are related? Jacob Goldstein at WSJ Health Blog writes it up at Anemia Drug Rebates to Docs May Spur Overuse;

Epogen, by the way, is a favorite of counterfeiters. So from the risk management department, we bring you the dangers of counterfeit drugs, also featured on the front page of the New York Times this week;

Prof. Stier reported on another drug issue this week, as he wrote of Mothers' Depakote Use Linked to Mental Deficits in Children;

And lastly on drugs this week, Ed Silverman at Pharmalot reports that Purdue Pharma agreed to a whopping $634M fine for misbranding the powerful narcotic, OxyContin In addition, three executives including its president and the top lawyer pleaded guilty for the misbranding; Howard Erichson discusses the likely impact on other OxyContin cases;

From drugs to food: KFC got some good news when a federal judge tossed a case against it, that was based on KFC concealing the fact it was using transfat. Scott Greenfield at Simple Justice reports on what he considers finger-licking good news. I guess even criminal defense lawyers have to eat. An in-depth view of the KFC case is done at the Drug and Device Law Blog (Beck/Herrmann). True, fried chicken is neither a drug or a device but I guess it's close enough, and these guys have to eat too;

From mere risk to real loss: Why do hospital patients call lawyers? Some like to think it's always about the money. But the reality is that the emotionally devastated know that money is often meaningless. At Paul Levy's Running a Hospital, he reprints an award winning essay from Cameron Page, entitled "You Lied To Me." It's not just a heart-breaking example of loss, but shows the circumstances under which that loss may be seen as betrayal;

And Tales Of An Emergency Room Nurse writes a headline that succinctly speaks to her concerns after a patient dies after discharge from the ER: Call The Malpractice Lawyer Quick; (via Kevin, M.D.);

Since we're hanging out in the ER at the moment, you can check out CharityDocs' tale of unrelenting horror as he tries to get a child admitted in Dereliction of Duty. It would make a nice law school exam of issue-spotting, if it weren't a real-life Danteseque tale of parents, doctors and administrators all facing down one very angry doctor trying to save a beaten child from limbo or worse;

We're hiring a lawyer now, because we think it's clear there's a problem, and we need to make sure we have the right one for the job...but you probably wouldn't want the firm that ran this miserable ad representing you...for anything...(via Overlawyered)


Before heading into litigation, we check in with Jon Coppelman at the Workers' Comp Insider for a look around California and proposed legislative changes, in California Apportionment: Pennies for your Pain?

Our case hasn't settled and we believe we have the all-clear for litigation, so off we go:

This lawsuit started in an unusual way: Racial epithets were being spewed by a nursing home patient, leading to allegations of abuse. Before you get outraged, consider that the patient suffers from dementia (via Illinois Nursing Home Abuse Blog);

And yet more unusual, Kevin Underhill at Lowering the Bar brings us Cardinals Fan Sues Over Botched Tattoo:

Finding an expert is one thing, finding a good one that won't get torn apart on cross-examination is another: From American Medical News (via Kevin, M.D.) -- In search of truthful testimony: Scrutinizing expert witnesses;

Ben Stevens at South Carolina Personal Injury Law Blog lays out some strategies for pursuing products liability cases;

But wait. Are we in the right court? Philip Morris is again in the Supreme Court, not testing the limits of punitive damages, but as Tony Sebok relates at FindLaw, about its claim the case should be in federal court instead of state. The claim in Watson v. Philip Morris is based on the thin argument that, because the cigarette company performed the tests rating the tar and nicotine in "light" cigarettes that are the heart of the plaintiffs' suit, they themselves were acting as "federal officers" since the tests were required by the Federal Trade Commission. Ergo, federal court;

Sometimes our cases settle, such as this $7.4M settlement for 305 Louisiana patients who said they had unnecessary heart procedures;

But ours didn't settle, so let's go pick our jury. Have a question about it? No problem, because the National Center for State Courts just released a wealth of data on the subject. How extensive? More Americans Than Ever Serving on Juries. Most Comprehensive Study of Jury Practices Ever Conducted. Sounds good to me. (via Deliberations)

As our trial starts, the courtroom is tense, the anxiety palpable. In part of an extraordinary medical-legal series, pediatrician (and blogger) Flea repeatedly let loose with his observations and emotions regarding his own medical malpractice trial: as defendant in a wrongful death case. Jury selection is now complete, and he reflected on the jurors chosen and the traumatized parents. Except that Flea has now taken down some, though not all, of those the posts on the subject. Why has he chosen some, but not all? With the death of a child at stake, it is clear Flea's trial is not just about money, as David Nieporent at Overlawyered likes to think. Will the nail-biting drama end in verdict or sigh-producing settlement? I'm guessing we haven't heard the last of this. (Addendum, 5/15/07, the site has now been taken down completely);

With our trial underway, we have to worry not only about our questions, evidence and witnesses, but about naked attempts to influence the jury by passing out "newspapers" to jurors on the issue of tort "reform," as discussed by NPR in Texas Newspaper Accused of Tort-Reform Bias (via TortsProf);

Part of trying the case is the time-honored exercise of pacing the hallway. Why? Because the jury is deliberating and there is nothing for you to do but wait, wait, wait, as the folks trying the Equal v. Splenda case are now doing, as discussed in the Legal Intelligencer (Law.com) in: Splenda's Not Equal, But Is It Separate From Sugar?

We have the verdict, now will we withstand appeal? In New York, I wrote how an intermediate appellate court knocked down the verdict in this AIDS phobia case from $592,5000 to $250,000, and in doing so dismissed all claims for post traumatic stress disorder starting at six months after her exposure, under the theory a person shouldn't be any further emotionally damaged;

Meanwhile, in Massachusetts, our TortsProf William Childs tells us this plaintiff sees his $2M libel verdict holds up at that state's highest court;

And in San Francisco, the retrial of a tobacco case that I mentioned in Personal Injury Law Round-Up #10 that had resulted in an increase in compensatory damages from $1.7 to $2.5M, has now also resulted in a punitive damages award of only $250K compared to the original $20M;


With the week done, we pack our trial bag up and go home with some weekend reading:

• Prof. Childs prints a long abstract of a new paper about physician supply in Pennsylvania, testing a tort "reform" theory that during the most recent malpractice "crisis" rising liability insurance costs lead physicians to relocate to lower-cost states, restrict the scope of their practice (for example, by eliminating high-risk procedures), or stop practicing altogether. Tort "reformers" are unlikely to be happy with the results.

• Dispatches from the Tort Wars: A Review Essay, from Anthony Sebok, reviews three different books on tort "reform" and is available at the Social Science Research Network in advance of its publication in the Texas Law Review;
  

• The Drug and Device Law blog (Beck/Herrmann) was so delighted at all the attention they got last week from doing a nice round-up of blogs in their areas of expertise, that they have a sequel, more blogs on the subjects of complex litigation, mass torts and Daubert hearings;

• If you haven't read it yet, check out Blawg Review #107 by Prof. Kingsfield at Blawg Review; and finally,
  

• Midwife with a Knife brings us the hair-raising tale of delivering twins, both breach (with pictures!), in Twins! Breech! Stat!; (via The Blog That Ate Manhattan)

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

Medical blogger Flea has removed blog postings for his own medical malpractice trial. The blog had generated great interest throughout the medical and legal blogospheres, as he became the first person to live-blog his own trial. I had covered the subject in Medical Malpractice Trial Starting For Med-Blogger, listing the posts and their subject areas. The postings had also been cited at Overlawyered, Kevin, M.D., Law.com , Deliberations and Simple Justice, among other places.

The pseudonymous Flea -- a pediatrician in the northeast currently in the midst of a wrongful death case regarding a child -- ran risks with what he was doing, as he had publicly discussed the private counsel he had with his legal team. This opened the door to questions on that otherwise privileged subject at trial if his identity was discovered by plaintiff's counsel, and potentially could jeopardize his insurance coverage if his carrier thought this hindered the defense of the action. His postings have included, among other things, advice on what to read, and a prep session where he had been taped and given a copy of the tape for review.

While the most recent postings about the trial are now gone, the older ones remain. Inexplicably, these remain regarding prep sessions with a trial advisor and contact with his lawyer: What Do Malpractice Juries Care About?, Flea Takes a Screen Test and Flea Gets His Syllabus.

There is no explanation from Flea as to why at least three of his recent postings came down, though it is reasonable to conclude that he had second thoughts on the subject and sought legal advice. I don't understand why, however, if some of them came down, the others did not. Frankly, I can't think of any lawyer allowing a client to take such risks, though it was fascinating to watch.

The questions are, has he been cross-examined yet (jury selection was two days ago and he was likely the first witness), and did plaintiff's counsel know about the blog?

My own guess...we'll see an explanation from Flea when the trial is over.

Addendum: Flea has now explained that he took down the three posts about the trial because he is superstitious, and doesn't want to jinx what he sees as a good game in progress. (for him).

Second Addendum (5/16/07): The site was taken down completely on May 15, 2007, without explanation.

Third Addendum (5/31/07) Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

A new study has found that iPods can cause malfunction in implantable pacemakers. According to a report, interfering with the telemetry equipment caused the device to misread the heart's pacing and in one case caused the pacemaker to stop functioning altogether.

The lead author had concluded that iPod interference can lead physicians to misdiagnose actual heart function.

This, of course, raises potential legal issues for the pacemakers and physicians that implant them in the arena of products liability or medical malpractice. Since many iPods are now dropped into breast pockets, right next to heart, the issue going forward will be the need to warn patients about such a practice.

Labels: Odds and Ends

I had dinner with Bill Clinton last night. As well as New York Chief Judge Judith Kaye, most of the Court of Appeals, and dozens of appellate and trial court judges from around the state. And about 1,400 members of the New York State Trial Lawyers Association.

Clinton is amazing, pure and simple. He started with the need for decent justice systems so that the poor, the unseen and the dispossessed had a place to turn. He continued on for 45 minutes in wide ranging comments from the attorney general scandal to the extraordinary wastes of money in our health care system, to the benefits of foreign aid (peace is cheaper than war), Darfur, North Korea, Iran, drugs and poverty. He spoke without notes, rattling off facts and figures on one issue after another as if they were a part of his being, seeming to reserve most of his passion for the many problems of Africa.

He's the only post WWII president to leave office with higher polls than when he was elected. (via Volokh). There's a good reason.

Labels: Odds and Ends

Probably no group of people is more outraged over the $65M Pants Case than lawyers, as such outrageous behavior from another attorney works to disparage us all.

The American Association for Justice has therefore asked for a disciplinary investigation regarding the attorney (and administrative judge) and is also soliciting for the defense fund.

The details are here: Disciplinary Investigation Called for in Dry Cleaners Case.

The attorneys' alleged favorite pants are at right.

Labels: Attorney Ethics, Frivolous Claims, Interesting Cases in the News

Flea is a pediatrician. One of Flea's little patient's died. Flea was sued.

Except that Flea is not just a doctor, but a blogger. An award winning blogger.

So he's doing something a bit different than other doctors that have been sued. Flea (photo at right) is blogging his experience as it happens, including contacts with his own attorneys, attorney-client privilege be damned. Make that a lot different than other doctors.

In what may be the most compelling and extraordinary story being played out in either the legal or medical blogospheres, the pseudonymous doctor discusses his experiences and emotions in depositions and trial preparation, including some advice and communications with his defense team.

In opening the door to the legal sanctuary however -- that is, the special place where all contacts with one's lawyers are protected -- he is running two giant risks:

First, if his cover is blown and plaintiff's counsel finds out he has been blogging, he can be cross-examined on those contacts and advice that he wrote about, for the privilege disappears when the substance is discussed publicly. Second, by opening that door, he runs the danger of his insurance carrier disclaiming against him in the event of a verdict on behalf of the plaintiff, on the claim that discussing his trial prep hindered the defense. The man is, if nothing else, a risk-taker in that regard.

His decision to walk this high-wire without a net brings us to a third issue: If plaintiff's counsel finds out about the blog, should it be used at trial? A lawyer's gut reaction may be yes, in order to claim to the jury that what they are seeing is a well-rehearsed act.

But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff's verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff's verdict.

With jury selection starting tomorrow, I expect we will see quite a bit more on the subject. Some of the posts on Flea's experiences, starting with the most recent:

• Dress Rehearsal (Flea spends two hours on the phone with his lawyer, and gives us some details);
  
• A Witness for the Prosecution (regarding the testimony of another doctor expected at trial);
• In Her Own Words (Flea Googles plaintiff's counsel);
• What Do Malpractice Juries Care About (Flea opens the door on the attorney-client privilege to write about his trial prep);
• Flea Takes A Screen Test (describing his experiences being videotaped in a mock trial setting);
• Flea Gets His Syllabus (He lets us know what his lawyer told him to read);
• Another Day At The Office (Flea's 2nd post on being deposed);
• God Was Watching Out For You Today (The 1st of 2 posts on being deposed);
• Something About The Law (The 2nd of two posts on the Complaint);
• Negligent, Careless and Unskillful (About the Complaint)
  

Addendum, 5/11/07 - Flea has now taken down the three most recent posts. See: Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts

Second Addendum (5/16/07): The site was taken down completely on May 15, 2007, without explanation.

Third Addendum (5/31/07) Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court


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

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

In a 3-2 decision, the New York Appellate Division, First Department has reduced an AIDS phobia award from $592,500 to $250,000. The decision is dated May 3rd.

The plaintiff, while working as an extern at a clinic operated by defendants-appellants, pricked her finger in the course of discarding a needle she had used in attempting to draw blood from an HIV-positive patient. (Further details on how it happened are not in the decision). Subsequent tests for HIV infection all yielded negative results.

Plaintiff asserted claims against defendants for the psychological injuries she suffered due to her fear of contracting AIDS as a result of the needle-stick incident. The jury awarded her $650,000 for her fear of contracting AIDS during the first six months after the needle-stick incident plus $100,000 for post-traumatic stress disorder stemming after the end of that six-month period. Due to a settlement with one defendant that had been held 25% accountable by the jury, that award was reduced by the trial court by to $487, 500 for the AIDS phobia.

But the appellate court did two things: First, it knocked down the $487,500 award to $250,000, because it thought the the "jury's award for AIDS phobia during the six-month period at issue deviates materially from what would be reasonable compensation." (For more on the subject see How New York Caps Personal Injury Damages.)

More contentiously, it wiped out the $100,000 award for post-traumatic stress disorder, since the plaintiff didn't test HIV positive after six months.

The elimination of that award was apparently based on the idea that, because only 5% of people will test positive within 6 months of exposure, the injury may not be genuine. The court, in other words, tries to create an objective standard for an inherently subjective human response.

But a well written dissent points out after an analysis of the case law regarding the proof by which emotional distress will be determined as "genuine" or "substantial," that "Genuineness... is clearly and appropriately a question of fact, not a matter of law."

Addressing the attempt to create an objective standard for an emotional injury that is subjective in nature, the dissenters wrote:

that statistical results cannot speak to the actual mental state of the individuals being tested. Nor does the majority apply any legal standard found either in the common law or statute in determining that a plaintiff is not entitled, as a matter of law, to compensable damages for psychological harm beyond a fixed period of six months. I submit once again that no such legal standard exists.

With a 3-2 division in the appellate court, the matter is ripe for appeal to New York's Court of Appeals.

The case is Sims v. Comprehensive Community Dev.

Addendum, 5/9/07 -- Law.com has a story from the New York Law Journal on this, 'Fear of AIDS' Award Vacated by N.Y. Court

Labels: Personal Injury

The New York Personal Injury Law Blog presents the week that was, taking you from pre-litigation through verdict and appeal:

Before heading into the courtroom, we better check to see that the courthouse doors haven't been closed on us and take a look at the risks around us:

In this story from NorthJersey.com, a doctor insists that you sign away your rights to bring a lawsuit before treatment is even administered;

A new Oklahoma Tort "reform" law was vetoed, from Tulsa World (via Point of Law). The old law had been ruled unconstitutional, as I had discussed here some months back and again here (with a copy of decision). Legal Newsline tells us why the Governor vetoed the new law (via TortsProf);

There was a particularly nasty WSJ op-ed by Kim Strassel claiming that trial lawyers are "deeply loathed" (via Overlawyered). Can that be true? Not from my experience questioning 1,000+ jurors, and having them all answer "yes" when I ask if they would hire an attorney to bring suit if they felt it necessary. WSJ fantasy world, meet real world;

Ted Frank discusses at Point of Law a response by the authors of Jackpot Justice to Judge Richard Posner's critique of it. An interesting part of the response is that the authors were unable to come up with a good answer to this critique: That the data they used came from industry-funded Tillinghast-Towers Perrin, and that:

It is impossible to determine from Tillinghast-Towers Perrin's report what the sources for most of its data are, and so the figures I have quoted must be taken with a grain of salt

The response, in part, reads like "just trust them" because "Tillinghast's unique experience as a consulting company for insurers also has given them inside knowledge and historical experience with the industry." Like asking the fox to guard the henhouse.

Byron Stier at the Mass Torts Litigation Blog brings up this Washington Post story, Pet Deaths Spur Call for Better FDA Screening:Imports Raise Concern About Human Foods. It seems that, from the perspective of the food industry, a little extra work in risk management may be in order;

And more on risk management, MonkeyGirl's view from the emergency room is that a certain nearby nursing home ought to review its procedures about who gets sent to the hospital and when, as she reviews an extraordinary nursing home dichotomy. It seems that, if they don't work on their procedures, some very angry patients (or their families) will be visiting an attorney's office nearby;

An unhappy Professor Stephen Bainbridge, steamed about plastic clamshell packaging designed by the devil, adds a bit more on risks he sees that look like a class action waiting to happen;

And before we start any suit, we want to do a little research. Thanks to Robert Ambrogi for pointing us to: New Site Collects Hundreds of Legal Articles. And yes, Litilaw is free.

And now that litigation is under way:

Our case could get tossed out on summary judgment, even when there is a disagreement as to the facts. You say courts aren't supposed to be fact-finders, only jurors? Well, tell it to Judge Scalia and the Supreme Court, which this week decided in Scott v. Harris (via SCOTUSBlog) that it likes its own view of the facts, thank you very much, and not the views taken by other judges. Scott Greenfield has a scorching blog posting on the subject in Beer with a Cop Chaser; And then, within 24 hours of his posting, a chase after a car thief results in a bus full of children overturning, discussed in Sadly, Another Point Proven;

A deposition can be an ugly war, both as Steven Lubet reports from The American Lawyer (via How Appealing), and as Above the Law reports where a nasty bench slap was delivered in rhymed couplets;

At Overlawyered, Ted Frank offers a practice tip on how to deal with objectionable questions at deposition, while trying not to run afoul of the prohibitions that may exist for directing a witness not to answer;

And to help us along a bit during discovery, Ronald Miller from The Maryland Injury Law Blog hands out a few tips on Protecting the Injury Victim During Deposition, especially if you think there may be a claims history;

While our trials often deal with lost wages, this is sometimes difficult when the victim is a stay-at-home mom. John Day at Day on Torts reports on an article that works to put a number on the value of mom's services;

Objecting during summations is also sometimes a problem, as Matt Lerner discusses in New York Civil Law, in the context of a judge that prohibited summation objections;

As the jury goes out to deliberate, we wonder about how the jurors will decide issues of fact and truthfulness, and whether race played any factor. We think about this as Anne Reed at Deliberations points to a study in the New York Times on the subject, in Another Day, Another Unconscious Bias Study;

As we go from verdict to appeal and back for retrial, it seems that second time can be worse than the first for an appellant. A smoker suit had resulted in 1.7M in compensatory damages the first time, and on retrial, a jury came back with $2.5M (Calif. Smoker Gets Higher Compensatory Damages in Second Trial). There had also been $20M in punitive damages the first time, and as of this writing the punitive phase of the second trial had not been completed. The court will now have to craft jury instructions in accordance with the confusing, recent SCOTUS decision in Philip Morris v. Williams.

And finally:

• Drug and Device Law (Beck/Herrmann) has a nice round-up of different health law blogs.

• 12 Important U.S. Laws Every Blogger Needs to Know, from Aviva Directory (I don't know how good the cited law is, but it does a good job of issue identification)
  

• This isn't legal, but medical -- From CharityDoc, a story of a bullet's travels after it enters the body and the efforts to save the patient.

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

A few snippets from the article available at Reuters:

WASHINGTON (Reuters) - Medical mistakes as basic as hospital workers spreading infections by not washing their hands hurt millions of people worldwide each day, the World Health Organization said on Wednesday in launching an effort to curb such errors.

...

The WHO said medical errors affect one in 10 patients worldwide and that at any given time more than 1.4 million people suffer from infections acquired in hospitals.

...

Unsafe injections with reused and unsterilized equipment are believed to occur most often in South Asia, the Middle East and Western Pacific regions.

In sub-Saharan Africa, up to 18 percent of injections are given with reused syringes or unsterilized needles, increasing the risk of hepatitis and HIV, the WHO said.

The article focuses on how to reduce the mistakes.

Labels: Medical Malpractice

Brett Trout, of the Blawg IT-Internet Patent, Trademark and Copyright Issues Blog, took us for a tour of a motorcycle race track in Blawg Review #106. For an exhilarating look at the blawgosphere, it is worth checking out.

Meanwhile, the three psychiatrists at Shrink Rap, took us for an altogether different tour on Grand Rounds (Blawg Review's medblogger equivalent), this one of the brain as they wind their way through the gray matter. (When you do medical malpractice law, reading medical blogs comes with the turf.) For one of the more interesting uses of technology, check out their linkable brain.

As for me, while those folks spent their weekends working their creative journeys, I took an altogether different, and more pedestrian, trip with one of my kids.

Labels: Blogging, Running

The FDA issued a warning today that 24 apparently related Web sites may be involved in the distribution of counterfeit prescription drugs. The drug is Xenical, a weight loss medication made by Hoffmann-La Roche.

The warning was relayed via a release at the FDA web site here, and contains the names of the sites. The FDA has provided pictures of the counterfeit Xenical, but unfortunately didn't think to put pictures of bona fide product side-by-side with the counterfeits. Modern technology is such that many counterfeits are virtually indistinguishable from the legitimate drug.

Distribution of counterfeit drugs raises liability concerns for any pharmacy or distributor that sells them, and potentially for any manufacturer that turns a blind eye to the distribution practices for its own drugs so that they trade on the gray market in pharmaceuticals.

More on counterfeit drugs, including commentary on pending legislation, can be found on this blog by clicking on the label in the sidebar or this link: Counterfeit Drugs.

Labels: counterfeit drugs