A $79.5M punitive damage award against Philip Morris in a smoker's case has twice been tossed out by the U.S. Supreme Court and sent back to Oregon for reconsideration. Now, for the third time, the Oregon Supreme Court has upheld the blockbuster award in Philip Morris v. Williams. The news story is here (hat tip, How Appealing). The decision is here. And as I explain below, if it should go back up to the Supreme Court a third time, Philip Morris will likely lose if the court addresses the size of the award.

The last remand was due to an issue of confusing jury instructions, and the penultimate issue of the size of the award was never reached. The compensatory award was for $821,000, meaning that the punitive: compensatory ratio was almost 100:1. Defendants believe that no more than a 4:1 or 9:1 ratio will survive judicial scrutiny based on the court's prior decison in State Farm v. Campbell (see, for instance, these posts at Drug and Device Law, Insurance Law Journal, the WSJ).

What will the Supreme Court do if they decide the size of the punitive damage award? They will likely let it stand under the present composition of the court, even though neither Roberts or Alito has spoken on the matter.

The reason I believe the almost 100-1 ratio will stand is set forth in this analysis I did in February 2007 in the wake of the last remand by the Supremes back to Oregon:
Philip Morris Punitive Damages Decision -- Why It Was Good For Plaintiffs

Summarizing that post: The prior punitive damage case of State Farm v. Campbell was decided by a 6-3 majority. But two members of that majority are gone (Rehnquist and O'Connor) and two others from that majority indicated in the last decision either in dissent (Stevens) or oral argument (Breyer) that they have no problem with the concept of a 100:1 ratio if the facts deem it appropriate. Therefore, there are already five votes in favor of upholding a 100:1 ratio in principle.

Thus if the Supreme Court reviews this case for a third time, and actually reaches the issue of the ratio of punitive damages to compensatory, then Philip Morris will likely lose.

Here is the history of the case:

• Jury verdict for $821,000 in compensatory damages and $79.5M in punitive damages;
• Punitive damages reduced by trial court to $32M;
• Punitive damage award reinstated by Oregon Court of Appeals;
• Affirmed by Oregon Supreme Court;
• Remanded by U.S. Supreme Court to decide punitive damages issue in light of its new ruling in State Farm v Campbell;
• Affirmed again by Oregon Court of Appeals;
• Affirmed again by Oregon Supreme Court;
• Remanded by the U.S. Supreme Court based on the jury instructions; and
• Affirmed for the third time (today) by the Oregon Court of Appeals.

Elsewhere:

• The cost to Philip Morris of trying to slant jury instructions too far in its favor -- $79.5 million in punitive damages (Bashman, analysis);
• Oregon Supreme Court to U.S. Supreme Court: Thanks, But No Thanks (BLT/Mauro);
• Oregon Supreme Court to SCOTUS: Go piss up a rope (Subject to Complete Defeasance);
• Oregon Supreme Court plays chicken in Williams v. Philip Morris case (Point of Law)
• Oregon High Court Reaffirms $79.5 Million Award in Philip Morris Case (Associated Press via Law.com)
  

Labels: Punitive Damages

Former personal injury attorney John Edwards as Attorney General in a potential Obama administration?

So goes the claim by right wing journalist Robert Novak.

Was there an actual deal?

Or was this misinformation done to inspire business interests to make political donations?

Inquiring minds want to know.
(But I put the odds at 1/3)

Labels: Political Action

When I wrote this morning that Bush complained, once again, about "junk medical lawsuits" in the State of the Union, I wrote that he never cites any studies to support the claim. Nor for that matter, do tort "reformers." Ted Frank jumped up at Point of Law to claim, however, that a study reveals that 28% of patients who suffered no medical error received compensation. So let's look at the study he cites to that was published in May 2006 in the New England Journal of Medicine, which was conducted by the Harvard School of Public Health and the Harvard Risk Management Foundation (Claims, Errors, and Compensation Payments in Medical Malpractice Litigation). But I'll give you a quick peak at the conclusion: The authors clearly disagree with Ted as to whether there is a problem of frivolous medical malpractice suits.

My perspective in doing this analysis is 20 years of doing mostly medical malpractice cases, having reviewed hundreds of filed cases (and vastly more of potential claims that were rejected), deposed many hundreds of medical witnesses and tried my share of cases. Ted brings to the table a career in academia, BigLaw and conservative think tanks. That doesn't make either one of us right or wrong, it just shows our perspective.

In looking at how the numbers were arrived at, the first thing that jumped out at me from the study is the fact that the analysis was from the perspective of the defendant doctors/hospitals since closed insurance company claims files were the source of the materials the investigators used. This meant, almost by definition, that the defense claims will be more fully presented in the files than the plaintiffs' claims.

Take this simple example: A woman complains of a hard lump in the breast at a January exam. The lump is dismissed by the doctor as fibrocystic disease, and that note is made in the chart. A year later, the lump is finally biopsied due to continuing complaints and the cancer is found. The patient says one thing about that January visit while the doctor, relying on her notes, says something else.

Thus, a finding of liability by an investigator is damning in any one particular case because it is likely based on the records, but a finding of no liability does not carry the same weight. Why? Because many cases present raw issues of fact that can't be decided by a review of files such as the breast cancer case above. A doctor says one thing and a patient says something else. If the medical notes are skewed, they are skewed toward the defense. (The authors concede this problem, writing: "Agreement was especially difficult to obtain among claims involving missed or delayed diagnoses.")

Resolving these disputed issues of fact is a jury function. They do their best by looking people in the eye when they testify to make their determinations in conjunction with direct and circumstantial evidence mustered by both sides. It may take anywhere from several days to several weeks to hear that evidence.

But these investigators, the report authors wrote, spent just 1.6 hours per claim. Just 96 minutes to read the medical chart (and decipher the handwriting), claims memos, deposition transcripts and other evidence? That's one way to get a skewed result. How, exactly, were the investigators to evaluate a doctor that kept giving evasive answers? Or a plaintiff that did the same? The reviews are only as good as the information being reviewed.

The reviewers, it should be noted, had a high confidence rate for their results in only 44% of the cases. There was 30% with moderate confidence and 23% were close calls.

Notwithstanding that, the study found that: Overall, 73 percent of all claims for which determinations of merit were made had outcomes concordant with their merit. Discordant outcomes in the remaining 27 percent of claims consisted of three types: payment in the absence of documented injury (0.4 percent of all claims), payment in the absence of error (10 percent), and no payment in the presence of error (16 percent). Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries.

According to the researchers, therefore, there was a payment in the absence of error just 10 percent of the time when looking at 1452 cases. How did Ted get the 28% number above? Because he elected to work only from the smaller subset of 515 "no error" cases instead of the entire pool, and the 145 payments made. That gets filed in the Fun With Numbers Department.

According to the researchers, even with imperfect information it appears that the existing medical malpractice liability system works well.

But don't take my word for it. The two conclusions of the study, done by doctors not plaintiffs' attorneys, and you can read the study yourself, were:

1. [P]ortraits of a malpractice system that is stricken with frivolous litigation are overblown; and
2. The malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.

I find it odd that Ted would cite to the study, since the authors have stated quite bluntly that his portrait of a system stricken with frivolous litigation is overblown and that the system works reasonably well. Was this some type of Orwellian up-is-down reformspeak?

Finally, Ted writes in his piece that, "perhaps Turkewitz sincerely thinks that the plaintiffs' lawyers' decision to bring a lawsuit is little better than a coin-flip in determining whether a doctor committed medical error." For the record, I have never said anything even remotely like that. I have, however, said the exact opposite on how such cases should be approached in order to lower the risk of inadvertently taking on a bad case. My views on the vetting of medical malpractice cases as well as the brutal economics involved in such cases might make for better sources of material if one needs to attribute thoughts to me. This is especially true since juries tend to favor doctors.

Given that, according to the study, the "non-error" claims were more likely to go to an expensive trial, significantly less likely to result in compensation, and when compensation was paid it was significantly lower than average, only the biggest of fools would bring a claim that they thought was without merit. Such a course of conduct would quickly lead to bankruptcy for the attorney.

See also regarding this study:

• The Truth About Medical Malpractice Litigation (Center for Justice and Democracy);
• The Great Medical Malpractice Hoax (Public Citizen);
• A Study To End the Frivolous Malpractice Lawsuit Myth (Medical News Today)
• The Myth of Frivolous Litigation (this blog)

And more regarding the Bush comment:

• Another View of Medical Malpractice Lawsuits (Wash Square Prophet)
• President Bush Continues to Bash "Junk Lawsuits" But Where is the Meat? (ZiffLaw)
• Where Do the Candidates Stand on Health Care? Conclusions (Drum Major Institute)
• So What's the Real State of the Union (TortDeform)
  

Labels: Medical Malpractice, tort reform

She just had hip surgery, and was still anesthetized. But when a safety strap was removed, Catherine O'Donnell somehow slipped off the table and slammed her head on to the floor fracturing her skull. A week later, the 86-year-old woman was dead despite a second operation that removed part of her skull to relieve pressure from the bleeding. (Boston Globe). Her family has now brought a wrongful death suit in Massachusetts.

What is interesting to note, from the legal end, is that if such an instance happened here in New York the family would likely have a hard time finding an attorney to handle it. This is exactly the type of avoidable accident that doctors and hospitals mostly enjoy immunity for. Here's why:

A lawsuit such as this has just a few essential elements of damages. Conscious pain and suffering and pecuniary loss (such as wages) are usually the major ones. Assuming the 86 year old wasn't working, however, her survivors likely has little pecuniary loss unless there are some types of pensions or similar revenue. And as to conscious pain and suffering, there is zero if she was never aware of what happened to her. In New York, there must be some level of awareness of the pain and disability. There may be a claim for loss of parental guidance, but the children would all be adults and the claim minimized due to that (relative to such a claim for an infant). There may also be a spousal claim if her husband survived her (not noted in the story.)

That leaves just grief for the surviving family. But unlike 42 other states, grief for surviving families is not compensable in New York in accordance with a law passed in 1847. ( See: The September 11th Lawsuits And The Problem Of Compensable Grief in NY) So the family is stuck, basically screaming at the wind for what happened, with no outlet for their grief.

People often make the assumption that lawsuits are "all about the money." Sometimes yes, but often not. With the loss of a family member, a family is often looking for answers and accountability. The courtroom, on an emotional level, often substitutes for the vigilantism that might occur based on anger.

While I had written just last week about my own handling of a woman with a ruptured brain aneurysm that fell off an angiogram table (see: Straying from Your Field of Practice), that woman had survived and was in massive distress. But wrongful death claims for the elderly (or even more sadly, for a child) often enjoy a de facto immunity here in New York.

(hat tip: Kevin MD)

Labels: Wrongful Death

It happens like clockwork. Every State of the Union George Bush has given I remember him making comments about junk medical malpractice suits of some kind. Last night he, unsurprisingly, did it again.

And every State of the Union speech follows the similar pattern of failing to provide any empirical evidence to support "junk" suits being an actual problem. I've never seen a study showing frivolous suits to be a problem. Have you?

In fact, just the opposite is true. Empirical research shows that the medical tort system works, except for those times that it actually favors doctors. But it doesn't stop certain politicians from trying to perpetuate the myth of frivolous litigation.

And it's worth noting that the contingency fee is a strong disincentive to bring bad suits, as the attorneys generally must take the risks with their own money, and since the suits are militantly defended bringing bad suits leads to attorney bankruptcy. The medical community already enjoys de facto immunity for medical malpractice in many jurisdictions for all but those instances with exceptionally bad injuries. And the federal government, and every state that I know of, also has rules in place to sanction frivolous suits when they are brought.

So there is a good reason you won't see Bush and the tort "reformers" tout any kind of empirical evidence. Because their agenda is driven by anecdotes of the occasional bad cases brought by a bad lawyer. Not by actual studies.

On the political front, I've always found it odd that tort "reform" comes from the right wing of politics, since taking personal responsibility for one's actions (or mistakes) is such an important concept. But it falls by the wayside, without explanation as to the obvious hypocrisy to political theory, when it comes to big business and medicine. Instead, the victims are asked to bear the brunt of a burden caused by others.

So too have the concepts of states rights and limited government fallen to the wayside when it comes to looking for ways to lend protections and immunities to business and medicine when they have fouled up and hurt someone. It's certainly not the way a capitalistic society is built.

Maybe, someplace and somewhere, someone has come up with a rationalization for the political hypocrisy. If there is one that actually makes sense -- a justification for giving government protections and immunities to the wrongdoers at the expense of the victims -- I'd like to see it.

Addendum: Ted Frank commented on this piece at Point of Law, and I have responded here: More on Bush's Frivolous Claim of "Junk Medical Lawsuits"

Labels: Medical Malpractice, tort reform

I'm back from a short vacation and I find once again how quickly blog postings can fill up an RSS reader and how many emails can accumulate.

Thankfully, Brooks Schuelke has a round-up of personal injury posts to get me started with the blogs. It's times like this when round-ups of all sorts are invaluable for keeping up.

Labels: Personal Injury Law Round-Up

• Blawg Review #143 is up at Public Defender Blog, with Gideon's take on Rev. Martin Luther King, Jr.

• FindLaw's Marci Hamilton on the Supreme Court's decision to uphold New York's way of picking judges in NYS Board of Elections v. Lopez-Torres;

• Actor Tom Arnold fights to have his legal bills paid after being wrongfully linked to a to a sexual-harassment suit, and enlists a 24 year old producer to have sex to help smooth the way;

• The award for Best Medical blog goes to Paul Levy at Running a Hospital. In case you don't know, Levy is the CEO of Beth Deaconess Medical Center in Boston, a top medical institution affiliated with Harvard, and has been busily pulling the curtain back on many of the secret problems, some of which cause injury and death;

• The Macintosh turns 24 today, as The Mac Lawyer reminds us. Apple and gave us the graphical interface we all now use. It was introduced in 1984 during Super bowl XVIII with this legendary Orwellian commercial (Director: Ridley Scott; Hammer Thrower was Anja Major, a discus thrower):
  

Labels: Random Notes

Some folks think that if they can practice law in one area it will easily translate to another. Don't count on it.

Over at Simple Justice, Scott Greenfield discusses the bone-headed attempt of a Las Vegas personal injury attorney trying to represent a defendant in a murder trial. The problem? This guy apparently likes to brag about how he settles cases (a bad move in itself for what it telegraphs to the insurance company) and figured he could just do the same with his criminal defendant. Scott gives you the dirt on the screw-up, and I'll now do the reverse for a criminal defense lawyer trying to handle a huge medical malpractice case from personal experience.

I got the call on this case about a month or two before trial, which is to say, the case had been ongoing for several years. The basics were this: A woman suffered a ruptured aneurysm in the brain, and while being prepared for an angiogram, flopped off the table on to her head. She had swelling in the brain and needed two surgeries to remove parts of the brain and lower the pressure. She was the functional equivalent of a 5-7 year old and bed-bound with spastic quadriparesis. Her life was, in a word, awful. And so was her attorney.

The family's attorney, a very high profile criminal defense guy here in New York (now deceased), had sued the wrong doctors, failed to take the proper depositions, failed to get experts, failed to videotape the woman so the jury could see her, and was otherwise grossly incompetent.

Thankfully, many of the screw-ups were salvageable, as is often the case when the statute of limitations hasn't been blown. Since the hospital had been sued, and the people involved were all employees, we could go forward, albeit half-blind.

I immediately told him, after getting a 60 second description of the case, that when all was said and done the only difficult issue was proximate cause: Was the fall a substantial cause of any of her brain damage? She did, after all, have a ruptured aneurysm in the brain before the fall.

I agreed to try the case with him, the only time in my life I've ever shared my space inside the courtroom well. The idea was that he would do the opening and non-medical witnesses, and I would handle the neurologists, neurosurgeons, neuroradiologists and other medical witnesses, and do the summation.

I still remember the day I walked into court to cross the first doctor, a neuroradiologist, with two groaning litigation bags hanging from my ever-lengthening arms because the little handcart I had was busted. Transcripts and medical records were fully indexed and I had an outline committed not just to paper but to my brain so that I could question without reference to any paper. My teammate walked in without a brief case or even a pad of paper, looked at me and casually asked, "You want me to do this witness?"

Now here is why it's a mistake for a criminal defense lawyer to jump into a big time medical malpractice case. The orientation of the defense lawyer is that if they can create reasonable doubt with just one juror, their client will persevere. With no burden of proof, a little schtick here and there might well connect with someone. When you have the burden of proof, on the other hand, the opposite is true. You can't afford anything that even looks like schtick.

And therein lies the problem: The defense lawyer might succeed if s/he throws everything against the wall, knowing that if just one thing sticks it may lead to victory. Now I'm not saying that is the right way to try any criminal defense, because that can backfire big time as Scott points out in the Coffee Mug Defense.

But a word to the wise for those that venture outside their comfort zone. Get help from someone who knows. Ask lots of questions. Start small. Don't be afraid to say that you are outside your comfort zone, either to the client or the judge. They will understand, so long as you don't wait on the issue until trial. Because if you wait for trial, there is a good chance your client will get screwed.

A final thought: It is not just the client that gets screwed. If the blown case gets picked up by the press/bloggers, as has been done in the Vegas case Scott wrote about, then one's own reputation on the Internet may be shot for many years to come, an issue discussed in Dan Solove's book on the Future of Reputation on the Internet.

Labels: Inside The Well, Personal Injury

Over at the Drug and Device Blog, Beck/Herrmann have a theory that they want tested with a scientific study:

It strikes us that the plaintiffs in pharmaceutical product liability cases are always striking the educated jurors.

They go on to state that if a health care professional, who they'd love to keep on the jury, survived the preliminary screening, then the plaintiff inevitably strikes that person. Their sense is that "plaintiffs typically prefer less-educated juries, and, in particular, routinely strike health care professionals from serving on juries in pharmaceutical and medical device product liability cases."

While most of my experience is in the medical malpractice field, that is close enough for me to answer, and it comes from someone who has picked a few dozen medical malpractice juries in addition to picking juries and trying cases in many other personal injury matters.

So here is my take on jury selection, New York style. While the rules change from county to county, one of the "popular" methods is called the "struck method" used in New York County in which 30 jurors are questioned for an hour. Yes, a whole hour for 30 people. That gives you a all of two minutes per person, inclusive of your canned spiel. The other side goes, then you step out of the room to strike people from the entire panel. Each side gets just three peremptory challenges, where no cause needs to be identified. The first six left after all challenges (for cause or not) become jurors, and the next two to four are alternates.

As you can clearly see, this is not exactly an atmosphere conducive to delving deep into backgrounds. When I get a doctor, nurse or other medical practitioner, I approach it like this:

• Jurors pick themselves. Some medical personnel feel they can't sit on these kinds of cases, and others have no problem. How do you feel about it?
• If you found for the plaintiff, how would you feel telling your co-workers after it was all over?
  

While they answer you watch the body language to see if they are comfortable or not with the issue. Some are, some aren't. (I asked the same question, by the way, to Dr. Rob "Flea" Lindeman in a recent interview.) Many medical workers see bad things at work and know that all is not peachy with their profession. Simply being in the profession doesn't disqualify them.

If you have one that looks uncomfortable, you then compare that person to the blue collar guy sitting there with his arms folded across his chest scowling at you and the very idea of your complaining client, but claiming he can be fair. I'll take the waffling doctor over the scowling steelworker every day of the week.

Jury selection isn't really about selecting individuals you like, but trying to find the few people in the room trying to subvert the process and do you in due to their prejudices without telling you, and getting rid of them. Anne Reed and Scott Greenfield both addressed this issue recently in discussing the limitations of the science (or voodoo) of jury selection.

Beck/Herrmann over at Drug and Device seek out empirical evidence to support their thesis that plaintiffs simply bounce doctors or the educated without delving further, but it escapes me as to how such a test could even be created, because jurors are necessarily measured only against the person next to them. That guy with the scowl doesn't appear in empirical data in any manner, shape or form.

My gold standard is The Turkewitz Beer Test: Whether I would be comfortable sitting down and having a beer with the person and talking. If the answer is no, I try to get rid of them. Human beings are far too complex to pigeonhole based solely on occupation or eduction.

See also from this blog:

• Personal Injury Lawyer Talks Himself Off Jury Duty (2/6/07)
• New York Juries "Too White" According to Study (6/22/07)
• Mayor Bloomberg Sitting Jury Duty (8/7/07)
  
  

Labels: Inside The Jury Room

It was hard to miss the stories this week on a lawsuit about a forced rectal exam in an emergency room. The blogospheric responses to it were, in a word, extraordinary.

The story itself is certainly odd, but not complex: Brian Persaud walks into a New York hospital with a head injury over the brow that needs eight stitches, and the ER staff then forces him to have a rectal exam against his will. Words are exchanged, he physically lashes out, he's sedated, apparently placed on a ventilator (?) and arrested. Charges were dismissed, but he sues the hospital, and in the process raises issues of ethics, informed consent, medical necessity and assault.

Now here's the striking part, and it jumped out at me when I first saw the story at Kevin, M.D. Kevin's easy to pick on because he has a great blog even though I often disagree with him, so when I challenge his opinion as being out to lunch, it comes with the caveat that I still routinely check his site for stories and opinions.

So here's the part that jumped at me: He immediately called it a "frivolous lawsuit." And not just him, but many, many others in the comments couldn't wait to rush to judgment. Based solely on an article that first appeared in a NY Times blog.

The patient's ability to give consent for the procedure is, of course, dependent on the actual facts. And given the commotion this must have caused -- the man was, after all, restrained and arrested -- you know there are many witnesses to the man's ability to make rational consent decisions. But have those that leaped to the conclusion that the case is frivolous actually seen or heard any witnesses? Well, of course not. The opinion offered on the merits has nothing to do with the actual facts, but on the political bent of the people offering up their opinions. (Volokh has 114 comments already.)

This reminds me, to some degree, of the criminal trial surrounding New York subway gunman Bernhard Goetz when he shot four teens on a subway in 1984 that he said were threatening him. It reminds me of that because, when the trial was held, there were competing demonstrators outside the court. One side wanted to crucify him as a racist and the other side wanted to hail him as a hero. And they all had one thing in common: Not a single one of them was actually in the subway to see what happened, nor had the evidence even been fully presented in court.

The rectal exam case makes for an interesting legal Rorschach test, just as the Goetz case had.

Labels: Interesting Cases in the News

Brooks Schuelke is still going strong with the round-ups, showing no sign of slowing down.

Personal Injury Law Round-Up #45 is up and running at his blog.

Labels: Personal Injury Law Round-Up

Lots of stuff I didn't get to because I am too busy working:

A wrongful death award made to grandchildren has been ruled invalid by a New York appellate court. Only a distributee can recover, and if the parents of the grandchildren are alive, they don't qualify. (New York Legal Update);

An eye doctor gets sued for toe-licking (No, I am not making this up);

A much less funny lawsuit of a California hospital sued for patient dumping, when it dropped a paraplegic man in a hospital gown on skid row;

TortDeform releases its Election '08: A Pro Civil Justice Presidential Platform;

Susan Carier Liebel at Build a Solo Practice presents Blawg Review, as an inventive letter to a new attorney;

Scott Greenfield on the Supreme Court upholding New York's judicial selection proceeding, along with the money quote from from Justice John Paul Stevens in a concurrence: "The Constitution does not prohibit legislatures from enacting stupid laws;" and

And if you're going to go off topic, you might as well do it with style, as the Justice Building Blog did in a tribute to the most famous boxer on the planet.

Labels: Random Notes

Traffic has jumped a bit due to the interview with Robert "Flea" Lindeman on Tuesday and several incoming links, and I know that many of you haven't been here before.

If you'd like to see a one-page synopsis of some of this blog's more interesting topics over the past year, click here.

And don't be shy about adding this to your RSS feed. I have no idea what tomorrow will bring.

For the third year running, Colin Samuels at Infamy and Praise has taken the crown for Blawg Review of the Year. He did it with the third part of his Dante-inspired trilogy, Paradiso.

My own marathon inspired Blawg Review #134 came in second, just one vote short. Just one measly vote. (No one ever said that knocking off the king would be easy.) Of course, that includes the nomination I tossed his way for his creative genius, so one way to look at it is that I need to be more competitive. Anne Reed's jury selection themed review came in right behind me.

But, thankfully, the Blawg Review is not really a competition despite the award. It's a way to round-up interesting posts from around the blogosphere, and if you feel inspired, to be creative. As the review rotates around the legal blogosphere, being hosted by different blogs each week, it is truly a communal effort. If there is any one person to thank, it is the anonymous Editor who clearly doesn't do it for the glory. Both Colin Samuels and Diane Levin, two Blawg Review sherpas who assist in the project, have cross-posted their thoughts and gratitude.

Samuels, by the way, claims that with the trilogy now done, he will retire his crown and not bother with the little-known fourth chapter of Dante's work, Snakes on a Gondola. But I do worry that, like Douglas Adams and the Hitchikers Guide to the Galaxy, there will somehow be a fourth part of the trilogy, and more. Or worse yet, that he takes on the Harry Potter seven-parter.

Labels: Blawg Review

In May 2007 Robert Lindeman, a pediatrician from the Boston area, found himself uncomfortably in the public eye when the Boston Globe exposed his pseudonymous life as a blogger in a sensational front page story. The reason? Dr. Lindeman, who clearly loves writing, had been live-blogging under the name "Flea" about his experiences as a medical malpractice defendant. The plaintiff's attorney found out, he was exposed on the witness stand, and the case immediately settled. His site came down and he disappaeared from the blogosphere.

Since Dr. Lindeman had been commenting as Flea on my blog since before the trial (see the comments: Practice Tip: One Way to Cross-Examine The Attractive Doctor), and I covered the trial as best I could from the start and continued thereafter through the media fallout, I decided to follow-up with an interview request when I saw a short interview with him yesterday.

Dr. Lindeman graciously accepted my invitation and answered questions via email. These are, by far, the most extensive public comments he has made since the trial. The questions were designed to be open-ended and there were no edits, although I have added some links. All of my questions were answered, and he took me up on the offer to ask himself three more:
--------------------------------------------------------------------------------------------
1. Are these questions being answered by Flea, or by Dr. Robert Lindeman? And what, if anything, is the difference?

These questions are being answered by Dr. Robert Lindeman. I often speak of Flea in the third person, just as Flea spoke of himself in the third person. But under the hood, Flea and Dr. Lindeman are the same guy. Flea uses more bad words in public than Dr. Lindeman does. Flea displayed visual imagery of scantily clad women and you won't find this at my legitimate web site. There, however, I have unburdened myself of sharply-defined points of view designed to provoke thought. For example, the article I wrote for natickpediatrics.com on ear infections was far more inflammatory (pardon the pun) than the piece I wrote at Flea. I was surprised to see this when I looked at the pieces side by side.

2. When you were creating the posts about trial preparation, you must have known you were playing with fire. What were you thinking?

What is this, Saturday Night Live? Naturally, I was not thinking clearly. A better question might be "Why were you not thinking?" Here's why not:

I was under a tremendous amount of stress. This patient's catastrophic death struck me and everyone else involved in his care as a complete and utter surprise. I had been trying to help this boy, and he suddenly and unexpectedly died. Never, until the moment the process server showed up in my new office, did it occur to me that what I had and had not done could be construed as malpractice. When I opened the envelope and read these things about my being "negligent, careless, and without skill", I picked up the phone and called my personal lawyer. I thought I was being accused of manslaughter. I had suffered the loss of a patient and now I was being accused of having killed him, or so I thought.

My lawyer calmly explained that I was being sued for malpractice, not manslaughter and advised me to call my malpractice carrier. I put the envelope in my top drawer and went in to see my first patient of the day. My new practice had been open for two months.

Over the next five years I managed to forget I was being sued for long enough to get through the day and take care of patients the best I could. As the trial date approached I felt increasingly isolated and anxious. I felt as though this story, and the story of malpractice litigation in general, is one that ordinary folks have never heard and doctors are reluctant to tell. I believed that the anonymity would shield me. I know what you're saying to yourself now. Like I said, I was under a tremendous amount of stress. I've been told that stressed-out people do dumb things from time to time.

3. What went through your mind when you saw the front page of the Boston Globe with your name and photograph above the fold?

Honestly, my first thought was "Look! I stuffed Fred Thompson!" (the announcement of his presidential bid was below the fold). Seriously, I knew ahead of time that the article was coming out because my lawyer had called me the day before. I had no idea I'd be put on page one above the fold. With my picture. My next thought was, "holy-moly now I have to tell my parents! To this point they knew neither that I had been sued nor that I was a blogger. Things unfolded fairly quickly after that. Two of my sisters, who also knew nothing about any of this, began calling me frantically. I spent most of the day explaining.

4. What were the reactions to the Globe story from your friends, neighbors and patients?

The range of reactions can be categorized in three groups. The smallest group was the fugitive group. Within hours of getting the paper, several families called to ask to have their children's records transferred. One father showed up in person to demand his daughter's chart. One mother kept a well-visit, made no mention of the case during the visit, then called up a few days later angrily demanding the charts for her three children. Several more would depart over the coming weeks. Some parents called to talk about it. I suspect a few are still making up their minds as to whether they want to stay. Some of my colleagues have stopped talking to me. Some refuse to make eye contact.

The next largest group was the supporters. Almost immediately, I began getting calls and emails from colleagues and families telling me they supported me and appreciated what I was doing. My rabbi showed up at our home the evening the article appeared. My fellow-congregants at shul were particularly supportive, even one who had until recently written for the Globe. Another fellow-congregant is well-known as a fierce personal injury lawyer. He never said anything to me about the case, but the very next shabbos he made a point of sitting with me at Kiddush and schmoozing me. He didn't need to say anything. I understood what the gesture meant.

My mother-in-law cancelled her subscription to the Globe.

The largest group is everybody else, most of whom don't know what the hell to say or to think about any of this. The next day, several of my wife's acquaintances crossed the street to avoid her or looked away as she walked by. I suspect they didn't know how to react. As for patients, the majority said nothing. Half of this group doesn't read English-language newspapers. Some friends, all highly educated people, sincerely didn't understand what happened and asked me to explain it. The rest have simply said nothing.

5. You must have read many of the press/blog stories and commentary that followed your exposure. What was fair and what was not about the coverage?

Immediately afterward I didn't read anything, even your blog. After several weeks the temptation became too great. I read some perfectly horrendous things said about me, but honestly, I wouldn't characterize any of it as unfair. Nasty? Brutal? Sure. But not unfair. What's unfair in the blogosphere? I'm sure there's stuff I haven't read, but I'd rather not look. One group that has been paying attention has been plaintiff's lawyers. Former fellow-bloggers periodically send me their "hit reports" demonstrating that readers with domain addresses at law firms have been searching their blogs for my name or the word "Flea". I dunno, Eric, is it "fair" to say that the sharks are still in the water?

6. What regrets do you have about the incident?

You're kidding, right? Where do I start? I regret that this boy died. Boys aren't supposed to die, particularly when physicians are trying to help them. I regret the effect that all of this had on the boy's mother. I regret that her pain was drawn out and exacerbated by a plaintiff's lawyer whom I suspect cares very little for her and for her boy. I regret the effect this had on my wife, who suffered mightily from beginning to end.

I regret the enormous waste of time and energy on the part of everyone involved in this case. I'm particularly sorry for the jurors, who really appeared to be trying to make sense out of what must have seemed to them one great confusing dog-and-pony show.

I regret that five-hundred years of the rule of law and trial by jury have left us with this enormity that you call malpractice litigation. Is this really the best we can do?

I regret the loss of several families with whom I had bonded. With only one exception, each departure stung.

I regret that I may have chilled some of the dialogue in the medical blogosphere. If I didn't chill it, I suspect I turned down the temperature a few degrees.

7. What are the three most important things you would tell a new blogger, medical or otherwise?

That's really two questions. My advice to new bloggers is 1) go on, 2) have fun, 3) knock yourselves out. The blogosphere is the true marketplace of ideas. Long may she reign. To medical bloggers my advice is the following: 1) Every time you post, recite the following to yourself as though it were a mantra: "I am cutting rope with which to hang myself. I am cutting rope with which to hang myself (etc.)" 2) Any time you write anything, anywhere, recite the following to yourself as though it were a mantra: "I am cutting rope with which to hang myself. I am cutting rope with which to hang myself (etc.)" 3) Don't blog anonymously.

8. How, if at all, do you think the incident will affect you five or ten years from now?

Let's start with tomorrow. Tomorrow I expect to wake up and the job I've done every day for the past 8 years. Multiply that times five and ten years and I suspect you have my answer. I guess most folks will forget about this incident ... except for our colleagues the plaintiff's lawyers. I already know that pdf copies of Flea, incomplete though they may be, have been downloaded and distributed to at least one plaintiff's attorney firm that I know of in Boston. I suspect they'll need sources of prior inconsistent statements if anyone should come to them with an inquiry. I don't know if I'll ever write for public consumption again.

9. You had an award-winning blog because you had something to say and you wrote well. What are your thoughts on returning to the blogosphere?

Thanks for the compliment. Almost every day I see something or read something that makes me absolutely want to howl. I almost immediately compose a blog post in my head. And there it remains. Why? Because if I ever blog again my wife will kill me. Then she'll divorce me. And I'm obviously not the smartest physician in the world, but I ain't that dumb.

10. A hypothetical question: You've been called for jury duty and the case involves a question of medical malpractice. What will you tell the attorneys during the jury selection process about your ability to sit impartially ?

I will tell them that Roger Clemens will admit to using performance-enhancing drugs before I will able to sit impartially on a malpractice jury.

11. If this happened to someone else, and you were going to ask questions like I am doing now, what three questions would you like to see asked? And how would you answer them?

Neat question, Eric, thanks.
[The next three questions are Dr. Lindeman's own]

12. Do you think the public knows enough about malpractice litigation?

No. Someone who has been through it ought to tell the story.

13. What advice, if any, can you give to colleagues about lowering your risk of being sued?

Whereas I suppose it's possible in theory to lower one's risk of being sued, in practice it cannot be prevented. If you are a physician and you make diagnoses for a living, the odds are very good that you will fail to diagnose a disease some day. If the patient dies or suffers harm, the patient and/or his family will probably consult with a plaintiff's attorney. In some instances, the attorney will take a shot at. In practice there is no number of tests, no number of x-rays, CTs or MRIs that will prevent you from being sued. If the patient dies, call immediately to express your grief.

14. If you could turn back the clock to junior year in college, knowing everything that will happen, would you change your mind about careers? Law perhaps?

No. Even now, every day when I wake up, after expressing gratitude to the Almighty for my having opened my eyes, and for the blessings of my wife and children, I thank God I'm a physician. What's wrong with me?

------------------------------------------------------------------------
Addendum: On 1/16/08, Canadian Medicine published more of the interview with Dr. Lindeman. A small part of that interview had been the subject of it's initial story. (Hat tip to Bob Coffield)

Blog Commentary at:

• The Flea Exposed, He Returns to Tell His Story (Simple Justice);
• "Every time you post, recite the following to yourself as though it were a mantra: 'I am cutting rope with which to hang myself....'" (Althouse)
  

Labels: Flea Medical Malpractice Case

It's been six months since I've mentioned the experience of "Flea," the pediatrician who was not only an award winning blogger, but also decided to live blog his own medical malpractice trial under his pseudonym. He got busted on the witness stand by opposing counsel and the trial settled the next day. Two weeks later, it was on the front page of The Boston Globe (See: Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court.)

Flea has now given, it seems, his first interview on the subject. It comes in the National Review of Medicine ("Check my blog and call me in the morning"), a Canadian publication.

What does he have to say? From the article:

"No wonder when doctors write, they write namby-pamby noncommittal crap," says Dr Lindeman, "it might get you in trouble someday." His advice? "Don't blog anonymously. For physicians, writing is dangerous. There is something really messed up about that."

And, he adds, don't write about your malpractice trial.

Labels: Flea Medical Malpractice Case

The race for Blawg Review of the Year will end soon, with the time to nominate ending on January 14. (Fortunately, I already had a handy graphic for this race.)

According to the anonymous Editor, the rules for nominating are:

This year, the award for Blawg Review of the Year will be given to that issue of Blawg Review, from #89 to #140 inclusive, that is nominated by the greatest number of those who have hosted an issue of Blawg Review from #1 through #140. Each of those hosts may nominate for Blawg Review of the Year 2007 as many issues, from #89 to #140 inclusive, as they wish to recognize for excellence by linking such nomination(s) on their blogs in a post dated not later than January 14, 2008, titled "Blawg Review Nominations" linking to the issue(s) nominated for Blawg Review of the Year. If you haven't hosted Blawg Review yet, but are scheduled to host an upcoming issue of Blawg Review, your nominations will be counted as well. Just send an email to the editor, including a link to your post, to ensure that your nominations are counted. Nominations for one's own presentation of Blawg Review, however excellent, will not be counted as a peer-reviewed nomination.

In this particular case, telling you to vote early and vote often won't help.

A list of nominees to date can be found here.

Labels: Blawg Review

Despite being knee-deep in trial, Brooks Schuelke comes through with another edition of the Personal Injury Law Round-Up. Now that's dedication.

Labels: Personal Injury Law Round-Up

That headline above is the title of a story currently running on CNN's web site. It comes out of Atlanta about a patient that believes malpractice was committed on her during the course of a hysterectomy, and has necessitated three additional corrective procedures. Her allegation is that the surgeon erred by nicking a ureter, causing urine to accumulate in her abdomen. The patient, as it happens, is also a physician.

But when the doctor-patient tried to find an attorney to handle her case, she struck out. Why? Because the difficulty and expense of medical malpractice litigation results in de facto immunity for the medical profession in a great many cases. Without a catastrophic injury, it becomes very difficult when looking at the costs and benefits to undertake representation. The story is remarkably similar to one I wrote about the other day, about a California doctor seeking out a medical malpractice attorney (see: Another Tort "Reformer" Sees The Light).

The two stories point to a brutal reality of medical malpractice litigation and the contingency fee system. As a business model, it sucks. Big time. An attorney must lay out many thousands of dollars for years on end, while still paying the overhead of an office (not to mention the mortgage, car, kids, etc.) for a risky endeavor. Perhaps many such risky endeavors. Calling this a significant cash flow problem is an understatement. Then, if the case is won or settled favorably, you have to listen to people who are ignorant of the economic realities pretend that the legal fee is some kind of easily made gravy. One thing is for sure, it is not the road to any kind of economic security. I wrote about this months ago in Medical Malpractice Economics.

And so, the lawyers that get the inquiry of the type you see in this CNN story are faced with the same kind of decision those of us in the profession deal with every day. Turning away inquiries at a rate, if their experience is like mine, of probably 95-98%. Most won't make it past the telephone interview, and if they do, past the office interview. I wrote about the mechanics of vetting the medical malpractice case back in May.

So these stories make headlines every so often. But for those that deal with this stuff, they come as no surprise at all.

The other day Susan Cartier Liebel made a request for stories about starting up your own practice, in a type of Letter to A New Lawyer. So here's my advice. Think twice about any field where you spend your own money for years on end for a future result with no current cash flow. Line up your financial resources in advance. Start a line of credit with a bank now. Don't wait for the time when you actually need it. Banks only want to lend money to people who already have money, not to those that are cash-strapped.

And I'm willing to bet that not a word of this was taught in your law school.

Labels: Medical Malpractice

A story making the rounds the last few days involves a judge that delayed a sentencing for hours because a prosecutor was wearing an ascot instead of a tie. You can find various opinions on the subject at the WSJ Blog and Above the Law along with a host of others. But it was Anne Reed who posted on "What Not to Wear" that caught my attention.

Because the issue of what not to wear to court begs the question of what a lawyer should wear. I've seen everything from schlumpy sport coats to silk pocket hankies with folks dressed to the nines.

So if you are appearing in the well of the courtroom, do you dress down with modest clothes or up with your best? I once tried a case in the Bronx with a guy whose collars were always bent out of shape because there were no collar stays. I mentioned it to him in passing and he told me, "I do it on purpose."

So here's my take: I dress boring. Neat and clean blue and gray suits. Modest ties. No French cuffs, pocket squares or spit-shined shoes. My goal is simple: I don't want the jury to even notice what I'm wearing. I don't want them distracted from the story that I think needs telling, or the cross-exam I'm undertaking.

I'm in the courthouse to do a job, and that is to effectively communicate the case. And dressing either up or down will make me stand out in some fashion and that is a distraction that takes away from the case. Of course, since I'm representing the plaintiff, I can't afford to have any juror take offense or be distracted. Defense lawyers, especially criminal defense, may feel like they can get more yardage out of a little schtick. They only have to convince one person, after all.

Your mileage may vary.

Labels: Inside The Well

Been too busy to post much, but a few things that deserve note:

Welcome to a new law blog, court-o-rama, which pitches itself as "the least dangerous blog." (Now what fun is that?) It's the brainchild of Anne Skove, editor of the Jur-E Bulletin, and will watch everything that happens inside the courthouse doors.

Legally funny videos at The Billable Hour;

A defunct law blog wins a category of the ABA Journal Blawg 100;

TortsProf Bill Childs offers to help Jon Stewart discuss tort law, once the strike is over;

And Blawg Review #141 is at Charon QC -- that's QC as in Queens Counsel, which he is not-- comes at us from across the Atlantic. And any Blawg Review that starts with a Charge of the Light Brigade is going to be a winner. Which it is.

Labels: Random Notes

I enjoyed doing the photo essay from the Queens courthouse in December so I did another. Today's subject is the Brooklyn Supreme Court (aka Kings County), complete with religious and legal iconography, New York City signs and architecture, and Justice Marsha Steinhardt, who permitted the photograph from chambers. Click the images for much better views.










The courthouse stop on the subway is Court Street-Borough Hall, that serves seven subway lines. The first part of the station opened 100 years ago. The signs are mosaics. The ancient subway station contrasts with the 1958 courthouse.





Outside the courthouse is a Christmas creche, placed by the Catholic Lawyers Guild. Carved in relief on the facade of the courthouse is Moses with the Ten Commandments. Do these present legal issues?






Inside the courthouse, my preliminary conference (where initial discovery schedules are set) runs into a small issue for which we need a ruling, and we head upstairs to see Justice Steinhardt.

The case: Brain damage following hip replacement surgery.
The issue: Defendant's request for a medical authorization for the medical insurer.
The objection: It would include items unrelated to the case.
The ruling: Request denied with leave to renew after depositions.



A day in the life of a courthouse and a trial attorney.

Labels: Photo Essay

Personal Injury Law Round #43 is up at Perlmutter & Schuelke. And despite the claims of limited time due to an impending medical malpractice trial, Brooks Schuelke still manages to put up 20+ blog postings on our favorite subject.

Labels: Personal Injury Law Round-Up