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: 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: 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.