Personal Injury Law Round-Up #38 is up at Perlmutter & Schuelke. So while the ABA chooses to ignore the field of personal injury law, Brooks Schuelke shows that it's blawgosphere is as vibrant as any other, with an ever-expanding array of law, policy and links.

Labels: Personal Injury Law Round-Up

Random notes will be for subjects that I want to blog about or things that need a bit more broadcast, but I just don't have the time for a separate post. They will appear on a, you guessed it, random basis:

• Why is health care so expensive? Might bill padding be involved? (Dr. Wes)

• There is a follow-up to this post from August: Wrong Site Brain Surgery -- Three Times in Six Years at RI Hospital. They've now been fined $50,000;

• Blawg Review #136 is up from down under at Freedom to Differ;

• Blawg Review #135 was a two-parter co-hosted at Transgender Workplace Diversity and the Rainbow Law Center;

• The Impact of Race and Poverty on American Tort Awards (Ron Miller)

• Malpractice awards cap would harm victims (Newsday Op-Ed by Jeffrey Kimmel)

• New York Doctors Claims of Medical Liability Crisis is Deja vu All Over Again (TortDeform)

• NY Lawyers Code of Professional Responsibility Updated Regarding Lawyer Advertising (Sui Generis)

• Did Rudy Giuliani steal 400K from indigent defense fund to pay for dalliances with his mistress? (Simple Justice). And did he commit an Alan Hevesi type felony? (TalkLeft)

• Virtual Hip Replacement Surgery. A very cool interactive tutorial on how it is done (via Kevin, M.D.), and if you want the real thing instead of virtual, go here.

And as a follow-up to the marathon Blawg Review, one last video:

Labels: Random Notes

Out on Long Island, the name Harvey Finkelstein is now widely known. The anesthesiologist has been the subject of several articles this past week concerning a three-year investigation that revealed he had potentially exposed hundreds of patients to blood-borne diseases by routinely reusing syringes in multi-dose vials. This exposed patients to Hepatitis and HIV/AIDS.

While Finkelstein used only one syringe per person, he would stick the syringe into a multi-dose vial that would also be used by others, thereby contaminating the remainder of the vial.

Aside from the conduct of the doctor, this story has a kicker: The state's investigators waited three years to let patients know, sending out 628 letter just this past week. Why is that significant? Two reasons, one medical and one legal.

First, and clearly of paramount importance, if someone was infected they didn't get prompt treatment. Second, because the statute of limitations in medical malpractice in New York is 2 1/2 years, those that may have been infected not only didn't learn about it in a timely manner, but may not be able to institute legal action to redress their grievances. In New York, the statute of limitations is not governed by when the negligence was discovered, but by when it happened or by end of the continuing treatment by that physician.

In today's news, Newsday writes of the secret procedures in New York that keep disciplinary issues as far from the public eye as possible. New York, it seems is one of only five states out of 42 that were surveyd last year in which no parts of the proceedings were public. From the article:

It is among a handful of states that conducts the entire probe in private and withholds a doctor's name unless the complaint is upheld. And even after an investigation is concluded, doctors are not required to notify patients if they are practicing under sanction. What information is available is found on a state Web site that critics argue few people know about.
...

The entry on the Office of Professional Medical Conduct Web site about Finkelstein is this: "Nondisciplinary order of conditions issued pursuant to New York State Public Health Law Section 230. for three years including conditions relating to infection control."

Well, that description tells you a lot, doesn't it?

Finkelstein, by the way, has had 10 malpractice settlements. That makes him one of 127 of New York's 70,000 physicians with a similar history.

See also:

• PATIENTS NOT TOLD ABOUT POTENTIAL DANGER FROM SYRINGES (Legal Medicine)
  
• Dix Hills Doctor Medical Malpractice Investigation Grows, Leads to Finger Pointing (News Inferno)
  
• THE SYRINGE MESS: State Seeks A Remedy; Handling Of Dix Hills Doctor, Hepatitis Scare Prompt Commissioner Of Health To Consider Institutional Changes (Accountability Central)
• After Hepatitis Case, New York State Acts to Speed Alerts to Patients at Risk (New York Times)
• DA investigating needle scare centered on Long Island doctor (Newsday)
  

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

Labels: Medical Malpractice

I'd like to tell you to vote for me in the latest law blog popularity contest. After all, it's being run by the ABA Journal so it has to be prestigious, right?

But I can't tell you that. Because I wasn't nominated. Nor, for that matter, was any other law blog devoted to personal injury law.

Maybe personal injury blogs all stink? Maybe we don't discuss enough law, or have enough visitors? Perhaps all the blogs are poorly written? I mean every last one. Perhaps the bloggers really aren't worthy of mention? How else can an entire field of law be ignored?

So let's take a short look:

• John Day (Day on Torts, who recently published a handbook on tort law)
  
• Evan Schaeffer (Legal Underground and Illinois Trial Practice, and a grand daddy of legal blogging who authored Blawg Review #1 )
• Prof. Bill Childs (TortsProf, dealing with a great deal of PI, as well as more)
• Profs. Byron Stier and Howard Erichson (Mass Tort Litigation Blog)
• Beck/Herrmann (Drug and Device Law including pharmaceutical and medical device product liability, and both of whom are also book authors)
• Bill Marler (Marler Blog, one of many on food poisoning that has, you know, been in the news a bit)

You would think that, with so much noise being made about the need for tort "reform" because personal injury suits are so problematic, there would be at least a few blogs devoted to that subject as part of the top 100.

But if you thought that, you would be wrong. It's not a question of one blog being picked over another since this is, after all, just another vanity contest that small niche blogs don't have a shot of winning. No, the significant thing is that the vaunted American Bar Association simply doesn't think that this field of law is relevant. The decision to ignore a vast segment of the law speaks volumes about the organization.

[Addendum: The "ABA Mission" is at odds with their exclusionary choices:

The Mission of the American Bar Association is to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law.]

OK, short rant over. Cue Rodney...

Labels: Blogging

In a major decision today from New York's highest court, defendants have been granted permission to privately interview the treating physicians of personal injury plaintiffs after the close of discovery. In permitting this, the Court appears to have cast aside the privacy provisions of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The decision in Arons v. Jutkowitz is expected to open a small floodgate of attempts by insurance companies and defense lawyers to privately approach treating physicians without the knowledge or permission of the patients and take statements without their counsel or any court reporter being present.

The conservative Judge Read, writing for the majority, concluded that plaintiffs can be forced to sign HIPAA compliant authorizations to allow the interviews. Because this will be done outside the formal deposition process, however, the usual safeguards regarding relevance and accuracy are no longer in place.

So how does the court reconcile the privacy that HIPAA affords with its determination to allow private interviews? While some medical conditions are certainly waived by bringing suit, others may not be. The solution, according to Justice Read, is to simply trust the defense lawyers. Justice Read wrote with regard to the HIPAA issue:

"it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically"

So that's it. Congress's attempt to safeguard medical privacy by statute has now been overruled by New York's Court of Appeals. If a passenger in a car accident brings lawsuit regarding a broken hip, for instance, the privacy of the person's unrelated drug, pregnancy or psychiatric history is no longer protected by federal statute. It's only protected by trusting the lawyer defending the case for the insurance company. HIPAA is gone.

The dangers and risks of this decision will now play out over the next several years, as doctors are informally interviewed and then confronted with statements at trial that they claim were never made or were taken out of context. It will also come up when doctors are interviewed and questioned about facts that may be wholly unrelated to the injuries in question and still protected by HIPAA.

This is a bad decision that will inevitably result in a mountain of litigation. And given the apparent challenge and conflict to the federally mandated HIPAA, I am left to wonder if an appeal to the US Supreme Court will be attempted.

Justice Piggott, writing in dissent about the judicial activism of the majority, addressed the procedural discovery process we have in New York:

Our holding today grants defense counsel the unprecedented ability to compel a plaintiff, who has placed his or her mental or physical condition in controversy, to execute authorizations allowing defense counsel to speak to his or her treating physicians outside the formal discovery process and without the plaintiff being present...it is "beyond cavil" that "neither the machinery in CPLR Article 31 nor the applicable Uniform Rules [for New York State Trial Courts] provide for the disclosure of this nature."

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

• See previously: Medical Malpractice - Defense Firms Denied Right To Interview Plaintiff's Treating Docs (3/19/07, this site)
• New York, New York! (Arons allows ex parte interviews of treaters) (Beck/Herrmann with opposing view)
  

Labels: Personal Injury

Medical malpractice can happen to anyone. And last week while we celebrated Thanksgiving, actor Dennis Quaid was running back and forth to the hospital because it happened to his two-week old twins when they received a massive overdose of a drug. And it happened at the well-regarded Cedars-Sinai Hospital in Los Angeles.

Now the kids will hopefully be OK despite this, as the overdose was realized and an antidote given. But it's a good lesson on how to make improvements in the mechanic of how hospitals work and how drug companies package their products. If only people would listen.

The kids had IV lines flushed with Heparin, a blood thinner. They were supposed to be flushed with an infant's dose of 10 units/ml. But they got an adult's dose of 10,000u/ml instead. So they received a 1,000x overdose. Oops.

And worse yet, the hospital had previously been warned by the FDA of the potential for mix ups between these two doses.

Here are the questions for the hospital and the drug manufacturer:

What were the adult strength drugs doing in the neonatal unit?
Why do the bottles look the same?
Why weren't there precautions in place to separate out different dosages?
Why were FDA warnings ignored?

At EverythingHealth (via Grand Rounds at Prudence), Dr. Toni Brayer writes:

The way to prevent these errors and "near-misses" is to put processes into place in health care like we do in aviation safety. Make it hard to do the wrong thing. Labels should have "red alerts" to show different strengths. The background colors on the bottles should be different and the font size needs to be increased. Look alike drug names should be differentiated by using TALL LETTERS. (glipIZIDE vs. glyBURIDE). The bottles should look completely different so it is obvious to every care giver...whether stocking a med cart or administering a medication.

If you think this is a rare occurrence, think again: Each year there are over 1.5 million medication errors in the United States, and as many as 7,000 people will die from them. And our children are the most likely victims (see: Children Are Most Likely Victims of Surgical Medication Errors).

But sometimes, it takes celebrity misfortune to bring home the reality of the problem.

For more:

• Medical errors are not always doctors' fault (Malpractice via Kevin, M.D.)
• Heparin Overdose in Three Infants Raises Safety Questions (MedPage Today)
• Medication Errors (FDA)
• Dennis Quaid Twins Update: Hospital Was Warned About Heparin Dangers (Babble)
  

(Eric Turkewitz is a personal injury attorney in New York)
-------------------------------------------------------------------------------
Update (12/4/07): Dennis Quaid Sues Baxter Healthcare Over Heparin Label Mixup for Twins

Labels: Dennis Quaid Lawsuit, Medical Malpractice

The New York State Board of Law Examiners managed to foul up this year's bar exam, as readers of this space know, by losing many of the essay answers that had been submitted on laptops.

I covered it when 400 answers were still unaccounted for at the end of August: New York Bar Examiners Still Can't Find Complete Essay Answers.

And after the results were made known 11 days ago, and the examiners claimed to have taken educated guesses on the missing results, I wrote about it here: NYS Bar Examiners Do Grade Approximation For Missing Exam Answers

But over the holiday weekend, this anonymous comment appeared on my site, claiming that credit was given for an essay with no answer, and the same credit was given for an essay with a great answer. And there was no indication that this person was told his/her essays were part of the missing ones:

Here's a fair summary (having taken the test, having intense problems down loading and uploading the test) and failed: I left one NYS essay blank. (Ran out of time) I received a 3/10. That's odd...But then, on the essays I KNEW--KNEW so well that I was practically jumping for joy as I took the test--I received a 3/10 on those as well.

BOLE claims they have informed all those who had computer essays lost--I suspect not. I have written away for my answers and I will be intensly interested to see how that blank esay scored a 3/10...I suspect they were ALL blanks, because of the uploads.

If anyone else is in this prdicament, please chime in. There are a few attorneys that specialize in this, and I've contacted a few.

Which leaves all to wonder, especially those that were given a failing grade, exactly how the Board Examiners actually graded the essays. Or if they did at all.

Addendum: There is some discussion at Above the Law about the continued weirdness of the NY exam, and as to the legitimacy of the comment, and understandably so. I am reprinting an exchange from that site where I gave the reason I thought the comment was legit:

Anonymous: Most likely story: 1) Guy is a moron - gets 3/10 on 'esay' he KNEW; 2) BOLE sees blank essay - thinks guy had software problem; 3) BOLE gives guy 3/10 on blank essay, which is his average from the other essays.

Me: That was also my initial reaction. But the writer seems to indicate that s/he was not notified that s/he had a missing essay.

And the fact that the comment was submitted on an 11-day old post (actually 7 days at the time it was made) on a small blog meant it was likely to only be seen by a few, so a hoax didn't seem likely either.

This gave it a certain ring of truth.

We'll see if it amounts to anything.

2nd Addendum 12/16/07 -- There is an appeals process that BOLE has not publicized: New York Bar Examiners Will Entertain Appeals Over Laptop Problems

Labels: Bar Exam, Odds and Ends

As readers know, I stopped doing the personal injury law round-ups because it was too much to sustain for one person on a weekly basis if I also wanted to write about other stuff (and have a law practice).

So thanks to Brooks Schuelke, who has picked up the ball to run with it. In this abbreviated week, he did a great job right out of the box and also introduced me to blogs I've never seen.

So head over to Personal Injury Law Round-Up #37. And please, if you have your own blog, let your own readers know with a link. Those links are a small thank you for the time that was put in creating the round-up.

If others would like to take a turn spinning around the PI blogosphere one week, or be part of a weekly rotation, please let me know. You can email me at Blog [at] Turkewitzlaw.com

Labels: Personal Injury Law Round-Up

It's a safe bet that anyone reading this blog is more fortunate than most of the world's population. So it's a good time to count your blessings.

And be thankful you're not a turkey.

Over at Point of Law, Walter Olson points to a story on medical malpractice panels in New Hampshire and Maine. So I wanted to share New York's experience with the panels before they were disbanded in the mid-1980s shortly after I started practicing law. I did a few of these before they hit the trash heap.

These panels included a judge, an attorney experienced in handling medical malpractice cases, and a doctor from each speciality that was sued. If there was a unanimous finding, the finding would go to the jury.

The first, and most significant, problem was finding doctors to sit on the panels, which is what caused years of delay to an already protracted litigation system.

The second problem was that, unlike jurors, there was no way to question panelists regarding any biases they might have, the way a juror might be questioned.

The third problem was that that no live witnesses appeared before the panels and there was no cross-examination. Submissions were made confidentially, and a short hearing was held that might last an hour at most. This format made it it impossible to resolve disputed issues of fact.

The fourth problem arose when, if a unanimous panel finding went to the jury, the losing side would invariably subpoena the doctor that appeared, and then cross-examine the physician on the flaws in the hearing that took place. Essentially, that the panel never saw a single witness and was therefore unable to resolve disputed factual issues. (This, in turn, made it even less likely that doctors would want to sit on panels.)

The end effect was years of delay, more expense, and more complicated trials.

It was, in essence, a resounding failure.

Labels: Medical Malpractice

An article that appears today in Legal Times by Stewart Weltman (via Law.com) is chock full of good practice tips. I'd like to highlight two. Since the article's vantage point is what defense lawyers can learn from plaintiff's lawyers, it is equally good reading for both sides.

1. [T]he most direct route to obtaining a favorable settlement is to ignore the prospect of settlement and instead prepare from the outset as if your case is going to be tried.

Since I come from the world of medical malpractice, I know that very few cases settle early (see: No, your medical malpractice case will NOT settle fast). If settlement occurs it is often only after a trial has started. And the defendant can see if you are truly ready or not. So my training was always to prepare for trial, because any other type of lawyering was too risky. If I ignored the possibility of settlement and was ready for verdict, I could negotiate from strength if the other side starts to talk about resolutions. Conversely, if you aren't really ready, you panic and may be forced to take the inadequate offer.

2. Many top plaintiffs lawyers will jump-start this process from the outset by articulating out loud a short statement of their best case in a minute or so to see how it sounds, perhaps running it past their assistant, paralegal, associates, or co-counsel. It is a simple yet powerful process that can and should be used in defense matters.

Actually, a minute is too long. Your case should be boiled down to a single sentence, particularly in the personal injury field. When the judge asks what the case is about -- and yours is one of hundreds she is handling -- she will want the nutshell version. If you don't know it, you don't truly know your case. It should look something like this:
"Failure to biopsy a hard nodule in the breast of a 54 year old woman leading to 10-month delay in diagnosis, with bilateral mastectomy and metastasis, instead of lumpectomy." If judges want and need more details, they will ask. More importantly, the issues have been isolated.

The article is a great little primer on keeping the focus for defense lawyers and keeping costs down by following our methods.

Labels: Medical Malpractice, Personal Injury

The calls come to me virtually every week from some website that advertises for lawyers and then sells or in some manner refers the names to attorneys. These sites, generally, offer to send leads from a geographical area that are typed into their site to an attorney in exchange for some kind of payment. The websites act as an advertising front for the firms, without their names being exposed unless an inquiry is made. And so the issue is: What type of ethical responsibility does the lawyer have for the advertising conduct of the service?

Today I'll name names for what appears to me to be clearly unethical conduct.

Here are a couple of the cold-call tactics used to sell the business to attorneys:

One call from MalpracticeLawOffices.com started with this pitch, "I'm a representative of Google.com." Now even I know that this must be false. And so the question immediately arose: If the salesman will lie, what other kinds of ethical breaches will occur while your law firm name is attached to their website? (I decline to provide a link, as I don't want to help them improve their pagerank with Google.)

An attorney in the Bronx I spoke with told me of a company called AnAttorneyForYou.Com that came at him with this pitch: They would take a percentage of the fee for sending personal injury matters to him. The lawyer I spoke with (who asked to remain anonymous) then asked if they were attorneys themselves, since a fee sharing arrangement with a non-attorney is a clear ethical breach. The answer was no, they were not attorneys, and that this was simply a fee for the referral. When the Bronx attorney asked about the ethics of splitting a fee with a non-attorney, the response was a version of, "I only work here."

Indeed, their own Disclaimer states:

Nothing in this website is intended to imply that anattorneyforyou.com is a referral service certified by any state bar or bar association, or that anattorneyforyou.com satisfies the minimum standards for lawyer referral services established by any state bar or bar association

The implications of attorneys outsourcing advertising to a third party that may be acting unethically represents an area of law that is unexplored by many ethics committees. The company itself is most likely not in your state and not subject to attorney disciplinary rules. So what forces the advertising company that the lawyer is using to act in accordance with local ethics codes?

The very act of engaging such an advertising service should subject the law firm to disciplinary action for any ethical violations committed by the non-attorney advertising company. With this threat hanging over the head of an attorney, it is unlikely they would take such risks with their licenses. It thus makes it impossible to turn a blind eye to any ethical breaches by any service that is used as a front for the law firms.

There is little doubt that if and when attorneys are called on the carpet for problems, they will simply play dumb and say they didn't know. But that should not be an acceptable excuse. And this is a problem that should be nipped in the bud quickly.

Labels: Attorney Ethics

Having now read and linked to hundreds of blogs as part of my postings and round-ups during my first year, and having exceeded my expectations for a niche blog (The End of My Rookie Year: Thoughts, Metrics and Changes), I wanted to list a dozen tips on better blogging to kick off my second year. Perhaps one or two of the points will help someone somewhere, particularly those in my field, but these can be adopted elsewhere:

1. Blog optimization is different than search engine optimization: SEO experts tell you to use the same buzz words as often as possible so that it increases presence with Google. Except that doing so means your writing will probably suck. Does a reader really want to see the phrase "personal injury attorney" in every other sentence? And if the writing sucks, no one will want to read it, link to you, or come back. Incoming links, of course, are important both to bringing in new readers and improving Google PageRank. Otherwise you have to hope that new readers will blindly stumble upon your poorly ranked blog. So forget SEO and work on being a better writer and providing real content.

2. Don't engage in blatant self-promotion: Blog posts that look like advertisements ("If you or a close friend was injured, call me at ...blah, blah, blah") are posts that no one wants to read, and fewer want to link to. Perhaps a potential client will find you, but without the incoming links that come from better writing, it isn't very likely.

3. Don't use crappy back links to yourself in the post: If you continually link back to your own blog or website in the text of a post every time you use a favorite buzz phrase, you have added nothing. In fact, you've made it worse. Perhaps you think all those internal links make Google happy, but don't count on readers who chased bum links coming back again. While I'm not privy to Google's algorithms, you can bet your last pixel that external links are vastly more important than internal links. Google didn't get to be king of the hill by being stupid. I use one identifying link at the bottom of the post, and have an "about" section in the sidebar. That's more than enough if someone wants to find me, and doesn't destroy the text.

4. Breaking the news beats the hell out of commentary on the news: The posts that most readers found to be of interest were those that had originally sourced material. Why? Because other bloggers (and news media) saw them and linked to them, thereby bringing in more readers. Commentary is nice, and allows you to give your views, but it's still just commentary.

5. Link to others often: While this is part of every "how to" on blogging, many people still don't get it. Links are how others find out about you, and they bring in other bloggers who might, if you write well, link back to you bringing in more readers.

6. Your competition is your friend: While you may compete in the same niche for clients with other firms, they are also your readers and sources for stories. A successful blog doesn't ignore that.

7. Quirky is good: If a blog isn't enjoyable to read, then people won't read it. Simple. A little personality is fine. Don't make reading your blog look like work.

8. Stay focused: If you are off-topic more than 20% of the time, people won't really know what you are about, and therefore may not come back. And 20% is probably too high.

9. Add value: A blog that is merely parasitic of news stories or other blogs isn't worth much, unless you intend to be a news aggregator like How Appealing or Kevin M.D. If you're writing about a news story or decision reported by others, add your own thoughts on its significance.

10. Don't try to monetize the blog with ads: Very few blogs have the traffic that will attract meaningful advertising dollars. So if the money is minimal, don't uglify the blog with ads.

11. A blog is indirect promotion: When people write articles for publication, they don't scream "hire me!" Writers for traditional journals simply hope that their reputation will be enhanced by demonstrating knowledge in a field and that this may indirectly help them professionally. It's a form of networking. Treat your blog the same way.

12. Enjoy yourself: If you don't enjoy it, don't do it. If it is done as a hope for obtaining business it will be quite clear in your writing, and more importantly, it won't be fun. Let's face it, no one will ever hire me because of my marathon Blawg Review, but I had a blast doing it. And that's the important part.

This past week has been devoted to blogging due to Blawg Review and my one year anniversary. The navel gazing will now stop and I'll return to the theme of the blog. Unless the mood or a good story messes with my plans.

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

Labels: Blogging

Tomorrow is this blog's first anniversary. So I wanted to share some visitor metrics, upcoming changes, and general thoughts:

1. Metrics:
This tiny corner of cyberspace attracted significantly more visitors than I had imagined a year ago. Weekday readership the last six months has been about 700 unique visitors per day. Roughly 20,000 per month. Here is the data for the year, starting from scratch, as of yesterday:

• Unique visitors: 158,860
• Most unique visitors in one day: 2,485
• Unique Visitors this month: Nov 1 - 15: 11,862 (790/day)
• Visitors: 291,612
• Page views: 524,139
• Number of Posts: 367 (too many)
  
• Number of blogs that linked to me: Over 200 (waaaaay more than I imagined)
• Largest blog sources of referrals: Above the Law, Overlawyered, Kevin, M.D
• Number of legal threats against me: 2 (one published, one not)
  

2. Changes:
OK, the blog was a success. So let's change it...

• The Personal Injury Round-Up that I have been doing is now kaput. It was fun while it lasted, but very time consuming to do on a regular basis.
  
• I hope to spend more time on individual stories and, hopefully, occasionally write stories that are not yet in the press.
  
• I hope to bring in guest bloggers. Interested parties can contact me.

Will the blog improve or will I get hit with the sophomore jinx? Beats me.

3. Blogging Tips:
Since the blog is a success (at least to me), my next entry will be my tips on blogging, for whatever it may be worth to others (perhaps not much).

4. Thoughts on Blogging:
This has been a real hoot, but it has also taken a great deal of time. The one oddity that stood out was that I was placed on the blogroll of Overlaywered while at the same time being a guest contributor to its arch nemesis, Tort Deform. I'm not 100% certain what it means, but I think that has to be good, especially for a beginner.

I've listed some of the most popular posts are here, but my personal favorite was the marathon Blawg Review #134 that I put up earlier this week, essentially the culmination of my rookie year. It was long, not just because marathons are long but, because I had so much fun conceptualizing, researching and writing it. I started making notes in a separate file six months ago on ideas and situations, much the way I make notes on trial themes and tactics from the day a case comes in.

The streets and crowds of New York provided unlimited opportunities to raise different subjects and allowed me to weave a fabric using both fact and fiction that included bloggers, the race and the city. The post got goofier and goofier as the race wore on because that is one thing that happens with exhaustion. A tip of the hat to the people that made it to the finish line.

And a big thank you to all who have visited and commented over the past year. Except, of course, to the two lawyers that threatened me.

Labels: Blogging

The New York Personal Injury Law Blog presents the final edition of the Personal Injury Law Round-Up, as a couple of changes are being made as I hit my first year anniversary...

We'll start with the issue of tort "reform":

In a resounding victory for patients, an Illinois court found that a tort "reform" damages cap is an unconstitutional violation of due process and equal protection by artificially limiting what medical malpractice victims can receive for their pain and suffering. Mark McKenna has more with a link to the decision; And Justinian Lane at TortDeform explains that the failure of this "reform" made no difference for an insurer's decision to stay in the state;

[Edit - 11/19/07: In an email to me, Robert Peck of the Center for Constitutional Litigation, who argued the case, alerted me that the decision was ruled unconstitutional based solely on separation of powers issues. It was therefore unnecessary to reach the other issues.]

John Day gives some statistics from Tennessee on medical malpractice suits, settlements and more, in the context of why further tort "reform" is not necessary;

Ron Miller discusses how non-economic damage caps may be considered discriminatory toward women;

Justinian Lane at TortDeform follows the Texas story of tort "reform," to find out who benefited, and who didn't;

At TortsProf, guest blogger Chris Robinette discusses the efforts in Arizona to kill off as many emergency room negligence cases as they can by raising the standard of proof to "clear and convincing evidence;"

Kanye West's mother died during cosmetic surgery in California, and Hans Poppe wants to know if he would be able to find a medical malpractice lawyer to investigate if he wanted to because, you guessed it, tort "reform" that caps damages;

Also at TortsProf, Robinette finds a notebook from a student of William Prosser (Prosser on Torts) has surfaced, with some of the legendary professor's thoughts.

And into litigation:

Not in suit yet, but...Nine children were hospitalized after eating Aqua Dots that used a toxic glue, according to The Consumerist. The product came from China, naturally.

John Day and on the discoverability of insurance policy limits (which is standard disclosure in New York);

Bill Childs on a suit against the KKK for the beating of a man, with the announced purpose of putting the Klan out of business;

Bill Marler discusses the lame excuses Cargill is giving for distributing contaminated beef;

From the land of settlements: Drug and Device Law has more on the Vioxx settlement and expands upon a subject I mentioned in my marathon Blawg Review #134 (discussed just after the 21 mile point), that being the impact of those that choose not to settle, which are likely to be the more substantial cases. And as Ed Silverman points out at Pharmalot, the settlement is only for U.S. claimants. Ted Frank has a good round up of analysis on the potential problems spots at Point of Law; And Howard Erichson reports on a plaintiffs-only conference to discuss the settlement;

From the miscellaneous category: New York State practitioners should take note of a reversal in Raffellini v. State Farm regarding the issue of whether a "serious injury" threshold applies to supplemental insurance. No Fault Paradise has the scoop;

And finally:

• Dr. Wes on why medical errors are good for you;
• An animated cartoon about aging baby boomers that has absolutely nothing to do with personal injury law;
• And the New York Personal Injury Law Blog ends these round-ups on a sad note, for we did not get an invite to Mark Lanier's annual holiday bash.

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

Labels: Personal Injury Law Round-Up

The New York Bar Examiners reported grades today for the July 2007 bar exam that included a scandal whereby essay answers that had been submitted on laptops for 47 students had disappeared. The Board of Law Examiners did a grade approximation for 15 of those students and failed six of them based on an approximation of grades. The other 32 students either passed or failed based on the rest of the exam. The information was disclosed as part of this press release on the passing grades and the availability of exam results.

The release had this to say about questions regarding the missing essay answers, which I had covered previously (New York Bar Examiners Still Can't Find Complete Essay Answers):

...one or more of the essay answers for 47 candidates could not be recovered. Fifteen of these candidates passed the examination based on their performance on the balance of the examination, with no credit being given for any missing essay. Seventeen candidates failed the examination even when attributed a perfect score on any missing essays. The remaining 15 candidates were given estimated scores based upon their performance on the balance of the examination, and their probability of passing was computed. The Board worked with researchers at the National Conference of Bar Examiners to develop and apply this methodology, which resulted in nine of the remaining 15 candidates passing and six failing the examination. Candidates with missing essays who were unsuccessful on the examination have been notified by the Board as to how their results were determined.

As to the exam results for the rest: The 15 New York law schools had a record pass rate for first time test-takers in the July 2007 exam, with 88.2%. According to the press release:

Not only did this group achieve a historically high passing rate, they also surpassed the passing rate of their counterparts from American Bar Association-approved law schools outside of New York. The passing rate for graduates of such law schools who took the bar examination for the first time in New York this July was 85.7%

When accounting for foreign students taking the exam and their 45.6% rate, the total pass rate was 70.6%

Exam results can be found at this link.

Addendum: 11/26/07: How, Exactly, did New York Grade That Bar Exam?

Labels: Bar Exam, Odds and Ends

If Blawg Review #134 was a bit daunting due to its marathon length and you were waiting to see what others wrote before lacing up your sneakers for the event, then here are some of the first reviews to check out:

• Colin Samuels (Infamy or Praise, and winner of the Best Blawg Review in both 2005 and 2006): an "instant classic."
• George Wallace (Declarations and Exclusions): "epic...run wild and free through an astonishing range of legal webloggery."
• Anita Campbell (Small Business Trends): "a marvel of a post."
• Anne Reed (Deliberations): a "tour de force" [in the comments]
  
• Dan Hull (What About Clients): "We're in awe. Quality and quantity. Really nice job...."[in the comments]
  
• Nicole Black (Sui Generis): "thorough and impressive"
• Carolyn Elefant (Law.com:Legal Blog Watch): "Exhilarating...Turkewitz's Blawg Review sets a record pace, covering at least sixty different posts around the blogosphere without once stepping out of its marathon-themed stride."
• Editor (Blawg Review): "an insightful run through the best of the legal blogosphere with an exemplary law blogger, who demonstrates once again that this project has legs...it's worth reading from start to finish"
• Diane Levin (Online Guide to Mediation): "Marathon Edition of Blawg Review A Winner"
  
• Evan Schaeffer (Legal Underground): "An entertaining Blawg Review"
• David Lat (Above the Law): Very cool!
• Monica Bay (The Common Scold): his Blawg Review #134 is an hysterical spin on the ING New York City Marathon
  

Other links:

• Stephen Albainy-Jenei (Patent Baristas): it's definitely a marathon!
  
• Walter Olson (Overlawyered): a truly marathon Blawg Review
• Ron Coleman (Likelihood of Confusion): "will leave you huffing and puffing"
  

If additional reviews come in, I will supplement this list with more links. But, of course, only if they're good.

Labels: Blawg Review, Blogging

According to an AP report, there were 200 lawyers at the rally yesterday to support Pakistani lawyers who have been manning the barricades for restoration of the rule of law.

But according to the New York Law Journal, the number was 700.

What's going on? Now it's true that inflating and deflating crowd numbers is a time-honored tradition among those that support/oppose any particular rally. But those are news organizations, not advocates, and estimating in the hundreds is not nearly as difficult as estimating in the tens of thousands.

My own estimate, based on many years of playing "guess the attendance today" at Shea Stadium was 300-400, which I stand by. And as I mentioned yesterday, a number much higher than I had expected.

See also:

• Today I'm proud to be a lawyer (Self-Absorbed Boomer)
• New York Lawyers Rally in Support of our Pakistani Brethren (Swan Lake Samba Girl)
• Lawyers to the Barricades II (Dorf on Law)
  

Labels: Political Action

Hundreds of New York attorneys tuned out at 1:00 today to rally in support of Pakistani lawyers that were arrested for demonstrating against the firing of the Pakistani Supreme Court. Some news reports have estimated that 25% of Pakistan's lawyers are now in prison due to protests against Gen. Pervez Musharraf's new decrees.

I just returned from the rally, held on the steps of the historic New York County Supreme Court building, moments ago, so this is likely a first report on the web.

By my eye, the crowd looked to be about 300-400 lawyers, well in excess of what I had anticipated. Attorneys filled the steps of the courthouse and spilled out onto the sidewalk below.

The rally had been organized by the New York State, New York County and New York City bar associations, and supported by others.

Speakers included a New York Pakistani lawyer whose father has been imprisoned.

An email was read from students at Pakistan's Lahore University about this rally, and they were grateful to see that American lawyers had taken notice and were showing support.

(Photo: This photograph that I took may be used without obtaining permission so long as attribution is given. It may not, however, be used for a commercial purpose.)

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

Labels: Odds and Ends, Political Action

My dispute with Avis, in which they asked that I take down their logo from this post back in September, has now gone international. It has been featured in the online journal The Register, published by Pinsent Masons, which is one of the largest British law firms and part of the Global 100.

Thus far, I have not heard back Avis them regarding my response, and the logo remains in place. I presume that, notwithstanding their attorney's assertion that it was I that was ignorant of the law, they have stopped their efforts knowing that my use of the logo was proper.

Labels: First Amendment

(The New York Personal Injury Law Blog presents Blawg Review, a round-up of legal blogs, or "blawgs." It is hosted each week at a different site.)

"The World's Longest Urinal holds a special place in my heart," Marty told me. "It's not that I'm a fan of urinals," my friend said, "but that trough is symbolic of the massive scale of the New York City Marathon, and the complexity of moving so many people across the landscape of this city."

Walking among the anxious runners in the staging area for the race at Fort Wadsworth in Staten Island, sitting in the shadow of the Verazanno-Narrows Bridge, Marty and I found the anonymous Editor of Blawg Review. It wasn't too difficult, despite the record 39,085 runners that were assembling there, since he was dressed as Gumby and had painted his face green. He was the gathering point for dozens of law bloggers who had answered his call to meet and run together. With two million spectators and 26.2 miles of roadway ahead of us, toeing the line for the awe inspiring charge across the city would be a once in a lifetime fantasy for many. It would also give us ample time to meet each other, which the Editor was trying to encourage. The video invitation he emailed, seen at left, had been met with an unexpectedly high response.

We had a couple of hours to wait in the cold morning air for the canon that would start the race -- no pip-squeak starter's pistol for this collection -- so I eased over to the Jewish services being held. It's the only minyan on earth where congregants might be found sporting disposable clothing and trash bag ponchos for warmth while wearing promotional Sponge Bob painter's hats for yarmulkes. I met Peter Lattman and Sarah Waldeck at the close of the service, and the two of them struck up a conversation regarding the Oregon Supreme Court considering the legal issues of circumcision for a 12-year-old boy.

Ambling through Fort Wadsworth, which protected New York for almost 200 years, it was hard not to think of soldiers and war as we waited, especially given Veterans Day. Michael Stevens talked of some that gave their all, and all that gave some, with the Editor in agreement, lest we forget. Deven Desai joined in, bringing the discussion back to its post WWI origins, the munitions and bodies still being dug up in France, the apparently oxymoronic law of war, and the continuing efforts regarding land mines.

We couldn't talk of past wars, of course, without discussing the present circumstances. Distracting himself from the race he was about to undertake, Devon Chaffee joined us to chat about his trip to Guantanamo Bay and the difficulty tracking military commissions, while Peter Spiro wondered if amending the War Powers Resolution was in the works due to the situation in Iran. Alexandra Lahav sidled up to join the shifting conversation with news of a class action suit against a military contractor for abuse that was allowed to move forward.

As we crossed the grounds of the fort to the bridge our anxiety mounted, as we passed vast quantities of discarded outer clothing. Our own runners joined others in protecting feet, thighs, arms and nipples to prevent damage during the race, with various bits of tape, jelly or clothing. We continued to drink. There were countless discarded water bottles, food refuse, newspapers and blankets, while folks downed coffee and pre-race energy gels.

Out on to the plaza of the Verrazano we finally went with the throngs, 15 minutes before the start. Helicopters circled above in the clear, blue sky looking down on the madness of the mass endeavor. And all I could think, despite the 15-20 mile training runs I had done in preparation for this moment, was "What the hell am I doing here?"

More warm-up clothes were shed, flying this way and that toward the edges of a crowd so massive, it would take half an hour for everyone to clear the start. As the clock ticked down, former BigLaw partner and now New York Road Runners CEO and Race Director Mary Wittenberg presided over the gathering from a small stage. The