OK, maybe this American Medical Association article didn't have quite the same headline I used. But according to them, tort "reform" in the form of capped damages means there will be lower insurance rates.

In other words, if the burden of a terrible loss is heaped upon the victim and not the tortfeasor, then the person that caused the injury will be better off.

So why have a cap? I bet if we lowered the cap to zero, that premiums will go down even further. Really great, huh? Especially if you are the insurance company or the person that caused the injury.

Of course, there are also other ways to bring down premiums. Like getting rid of bad doctors and not engaging in a white coat of silence. In New York, 7% of doctors are responsible for 68% of the malpractice payouts.

Does this mean there should be no damage caps at all? Of course not. New York doesn't have a one-size-fits-all cap on damages, and we do just fine (see How New York Caps Personal Injury Damages). The question of artificial damage caps really boils down to this: Who should bear the burden of a loss, the one that caused it or the one that suffered it?

(hat tip to Kevin M.D. for the link, though I'm guessing he has a slightly different view)

Labels: Medical Malpractice

Talk about chutzpah. First the doctor operated on the wrong side before correcting himself and operating on the right side. Then the patient was billed for both surgeries.

While 10 states will no longer allow billing for "never events" such as wrong site surgeries, 40 states still allow it.

But still, even if the state allows it, what goes through the mind of the person submitting that bill? Operate on the wrong side and then bill for it? Good grief. MSNBC has the story.

Labels: Medical Malpractice

Personal Injury Law Round-Up #51 is up at Perlmutter & Scheulke, which means next week is its first blawgiversary. This week it takes on more Riegel, punitive damages and lawyers gone wild;

Andrew Bluestone reports on testimony regarding a "two week brain fart;"

A new blog to add to my RSS feed: New York Workers Compensation Alliance Law Blog, which I'm delighted to see focuses on substance and policy. This appears to be a very rare beast, a group blog by practitioners;

And, of course, Blawg Review #148, spending its second straight week in Iowa, is up at Blawg IT by Brett Trout, with a theme of the meme. Next week Blawg Review goes to the Antitrust Review. No doubt after the Review does the Review many will want to, ahem, review it.

Labels: Random Notes

I've been scratching my head since learning the story of Eric Zeni, the recent law grad who was told that he failed the New York bar exam after portions of his essay answers were lost due to a software foul-up. And then, through his persistence and appeal, he learned that the law examiners "were able to go back to the software company's computer archives and retrieve my essay," and then gave him a passing grade.

Now this is just amazing, since his essay answer was retrieved after he was notified by the New York State Board of Law Examiners that he had failed. So I have some questions:

In a press release, the BOLE claimed that the lost essay information "could not be recovered" for 47 students. How did this information become available after the results were posted?

Why wasn't every single rock overturned looking for lost data before the exams were graded?

How many others exam takers were told they had failed the test because their answers couldn't be found, when we now see that all possible avenues of retrieval had not been explored?

The BOLE claimed to have done a grade approximation for 15 candidates whose answers were not recovered. Why did this methodology fail?

How many people had to retake the exam who may have actually passed the first time?

What relief can someone obtain against the Board of Law Examiners if they had legitimately passed the exam, but were forced to spend 100+ hours studying for it again?

Is anyone in Albany investigating?

My last thought, and this is about Eric Zeni. When he first posted here, under the pseudonym "Anthony," he could have ripped the BOLE up, down and sideways for the screw-up. His actual words were a model of discretion.

Having now passed, he once again had the opportunity to rip into BOLE for having told him he failed when all efforts had obviously not been exhausted to find his answer. Once again, he was a model of discretion and charity, refusing to walk down that road.

So not only did this recent graduate win his first case, and win it in a forum for which there is no precedent and no appellate process, but he exercised superb discretion in the way he conducted himself. And that, my friends, is a great thing to see in a newly minted lawyer.

Labels: Bar Exam

Friends, law stories don't get much better than this. It started with the New York bar examiners losing my test results in the summer of 1985. And it ends 22 years later in the wake of another New York bar exam fiasco, this time with lost essay answers on laptops due to a software glitch. This graduate, who was told that he failed the July 2007 exam, will not be taking the February bar exam being given today. This is his story...

-------------------------------------------------------------
Guest Blog by Eric Zeni
(awaiting admission)

My experience with the bar exam was previously featured on this blog; in a guest posting, I recounted how I was affected by the software malfunction that caused my laptop to crash while writing the exam and seemingly erased one of my essays. When results came out in November, I learned I failed the exam by four points. I later received copies of my essay responses back and discovered that one of my essays was still incomplete -- an essay which I had begun typing and was forced to finish by hand when my laptop crashed. I later learned from the Board of Law Examiner's office that there was some type of a review being conducted, and it was then that I began to seek more information. I contacted Eric Turkewitz because I had seen the coverage he had given to the software malfunction and grade approximation on this blog, and I asked if he had heard about a review. Although seemingly no one had heard of this development, Mr. Turkewitz was helpful and called the BOLE office himself and confirmed the existence of the review, which encouraged me further.

I wrote my request unsure of how it would be received or what I could ultimately expect. The only information BOLE had told me was that the Executive Director would be conducting the reviews. I was well aware that BOLE does not take appeals and that this was uncharted territory. In my request, I explained what occurred on the day of the exam, and I attached copies of emails that I had received from the software company which confirmed that my exam had been uploaded and also from BOLE stating that they were in receipt of all my printed and handwritten essay responses. Despite those assurances, I explained, I discovered that my essay was still missing. I stated how devastating it was to learn I failed the exam, but what an injustice it was to discover that the graders had not graded my complete response. Finally, not knowing what to expect, I respectfully requested that my exam be 'reviewed.'

I waited about two or three weeks without hearing anything. Each time I called the BOLE office, I was told the Executive Director was reviewing the requests and that he would be in touch. Finally, around year end, I asked to speak with the Executive Director, who returned my call later in the day. When I spoke with the Board’s Executive Director, John McAlary, he asked if I had any questions before he explained the situation. I told him that while I obviously wanted a favorable outcome, what I desired most was finality and some resolution as the February exam was fast approaching and I needed to know how to proceed.

Mr. McAlary explained that after receiving my request and looking into the issue of the missing portion of my essay, they were able to go back to the software company's computer archives and retrieve my essay. My retrieved essay was then submitted to a grader, who determined that I passed. At that point, the Board had to determine whether or not it would change my result. Finally, Mr. McAlary said that he was happy to be the bearer of good news, and that the Board had decided to change my result and that I had passed the bar exam!

I was amazed. Certainly this was the outcome I had hoped and prayed for, but I never figured it would be possible. Speechless, I thanked Mr. McAlary, who congratulated me, and we ended our conversation. I then told everyone what had happened, and it seemed that everyone else was even more excited than I was. When I shared the news with Mr. Turkewitz, he was very happy and congratulated me for having won my first case, and for having successfully achieved a reversal when BOLE was adamant there was no appeal. It took awhile for it to sink in that I had passed and would never have to study for the exam again. Once I fully realized, I was extremely happy that my ordeal was over and felt vindicated by the good news. I worked too hard this summer to have failed, and to have missed the mark by only four points was heartbreaking. Although I never expected it to be reversed, I was always determined that come what may, I was not going to take that exam again. I finally received my official notice on December 31, 2007, stating I had passed the bar exam and certifying me for admission to the Appellate Division, Second Judicial Department. It was a great feeling to finally have that piece of paper in my hands and I finally felt the joy and relief that I am sure everyone else who passed the exam had felt weeks before.

I truly empathize with those taking the bar exam this week. I've often thought of all the time I would have spent in the law library studying again day and night, and especially since I'd be taking the exam again now. Getting that bad news is devastating, and it takes a lot of strength and tenacity to bounce back from it. In the time since everything has been resolved, I have been eagerly looking for a job. I am looking forward to being admitted and am anxious and excited to begin my career as an attorney.

It took me a long time to decide whether I even wanted to write the conclusion to my story. It's been weeks since Mr. Turkewitz first asked me to do a follow up to my original posting. I've recently had occasion to share this story, and each time I do, everyone seems to enjoy it and people remark what an extraordinary story it is. Although my life would have been much less complicated had I originally received good news in November, I am clearly pleased with the outcome. I am thankful that I passed and that the Board rectified the situation. I owe thanks to Mr. Turkewitz for his advice and assistance, to John and Damian Pieper for their thorough preparation and support, to my friends for their support as we studied for the bar this summer and as this continued to unfold, and especially to my family and girlfriend for their love and support. And most importantly, I thank God that I do not have to take the bar exam again!

--Eric Zeni
-------------------------------------------------------------

[The idea to write my own story from 1985 came from Above the Law at this post. Had it not been for that request for anecdotes, I probably would not have written the story up and become involved in the issue, and Zeni and I would never have spoken. -- E.T.]

Update, 2/27/08: Bar Exam Reversal: How Did New York Bar Examiners Screw This Up?

Labels: Bar Exam

David Lat's Above the Law has a guest post from Ted Frank. Put up at 10:20 this morning, it has already generated a staggering 345 comments.

The subject? An assertion by Frank that Barack Obama, if elected, would get rid of the Social Security cap that is currently at $102,000. And that would cost BigLaw lawyers lots of dough.

Frank doesn't say where the money should come from, of course, for Social Security. That is apparently something for the next generation to worry about. Fiscal responsibility isn't really important when trying to woo voters from BigLaw.

But back to the main point. With this kind of a hit on its hands, will Above the Law move away from its many (many, many, many) posts on salaries at this place and that and focus more on substance?

We'll see.

Update (2/27/08 @ 5:30 pm): The post has now generated a record number of posts, well over 500 and still going. A new post was added by Ted Frank on the subject: NY to... 147K? More About Barack Obama's Tax Plan (Or: Time to make the donuts?)

Labels: Blogging

Yesterday's story about an American Airlines passenger that collapsed and died received a lot of press due to allegations that two oxygen tanks they are required to have were empty.

Leaving aside the issue of whether the initial report is accurate -- American disputes the story -- is litigation a potential factor by the grieving family?

Assuming the initial story to be accurate, this is a good example of why gut reactions may not be good lawyering. For even if the airline was negligent in not having the oxygen available, the next question must be: Did it matter?

Lawsuits aren't just about negligence, but proving that the negligence was a substantial cause of the injury. And so the question is, if the oxygen was there, is there a substantial chance it would have made a difference in saving her life?

This ER doctor says no way, writing, "the sad truth is that if you have a cardiac arrest when you're 30,000 feet over the ocean, then you are likely going to die whether the oxygen tanks are working or not."

Wrongful death litigation most often occurs due to a potent mix of grief and anger. Losing a family member is bad enough, but when the mix includes a large corporation that may have played a factor in causing the death, it's easy to see why lawyers are contacted. This is a good example on how and why one must be particularly careful with the medicine before walking down this litigation road. For it may not end well at all for the attorney and the family. The final autopsy report is likely to hold the clues.

The initial report from the New York Medical Examiner's Office was that the passenger "died of complications from heart disease and diabetes."

Labels: Personal Injury

A couple of links today to point you elsewhere, because I see no need to re-invent the wheel on some basics for the practitioner.

First is an intake questionnaire for a slip and fall case to get the basic information you need. When I see one of these, I always cross-check it against my own to see if I can improve the one I use.

Note that it is not comprehensive. It's missing, for example. the date/time/place. And every intake sheet in a personal injury case should ask if the client has filed for bankruptcy or intends to. (Because if they do, any potential suit belongs to the bankruptcy trustee, not the injured person.). Nevertheless, it's always good to see if one's own intake forms can be improved or refreshed by looking at others.

Next up is an article on snow and ice cases written by Scott Kreppein for a local lawyer's quarterly that he has reprinted. Cases regarding injuries from falls on snow and ice get tossed out by the courts all the time (see, for example, Sip and Fall on Ice/Slush - Case Dismissed) because a storm is still in progress or for other reasons. It's important to know this stuff before the client interview, so that the attorney can do a proper analyses and not find him or herself with an unhappy client and unhappy bank account a year or two later. A good post to copy and save, and one that includes additional practitioner tips.

Labels: Slip and Fall

I was the subject of an interview by Rob La Gatta over at Kevin O'Keefe's Real Lawyers Have Blogs;

Rush Nigut takes an extended bicycle tour of Iowa -- famous for corn, quadrennial political tourism and, apparently, Mr. Pork Chop -- in Blawg Review #147; Blawg Review will continue to caucus next week in Iowa when Brett Trout hosts from Des Moines at his brand new domain for Blawg IT, as he tries to top his fellow Iowan's extraordinary tour around the legal blogosphere;

The Health Wonk Review is up at GoozNews;

And Personal Injury Law Round-Up #50 is now up at Perlumtter & Schuelke, their 14th consecutive edition. But Brooks Schuelke is too busy celebrating the state of Texas to wonder why he took on the task.

I hate it when someone with so little experience is nominated for a judgeship. And when I write "so little experience," I mean I apparently had more in my first full year than Bush's nominee for the Middle District of Tennessee has had in an entire career. Gustavus Adolphus Puryear IV is the subject of a Stephanie Menicmer skewering that just appeared in Mother Jones.

Leaving aside the roman numerals after his name - blame his parents for that one -- what does he bring with him to the bench if confirmed by the Senate? He has this courtroom resume: He has tried two cases, though the article doesn't say if that means they were actually tried to verdict or he picked a jury and settled.

His current position is that of an executive for a private prison company. And in that capacity had this to say: "Litigation is an outlet for inmates. It's something they can do in their spare time." Legal issues that may be raised are, apparently, unimportant.

Now I'm not saying that courtroom experience is a requirement to be a judge. I don't say that because the Constitution doesn't say that. But it damn well should be to get past the Senate in their capacity to give advice and consent for judicial nominees.

If you want to know how political connections result in judicial nominations, check out the Mencimer article.

This isn't about politics of the left or the right, but about basic competence to do a job. Considering that the lives of others would be in his hands, I think that's kinda important.

The Senate Judiciary Committee held a hearing on February 12th, and has not yet voted on the nomination.

More at:

• Bush Judicial Nominee: Private Prison Executive With Little Court Experience (TalkLeft);
• Ex-Inmate Crusades Against Judge Nominee (SF Chronicle)
• D.C. Liberals have Gus Puryear in their sights (Conservatives for Corker);
• Bush Picks A "Brownie" for TN Bench (Southern Beale);
• AFJ opposition to Puryear nomination makes the Associated Press (Justice Watch)
  

Labels: Judiciary

The Supreme Court decision yesterday in Riegel v. Medtronic is all over the web (links at bottom). The decision grants immunity from lawsuits for any medical device maker whose product was granted pre-market approval by the FDA. In other words, big government is now the only safety mechanism.

This post from Beck/Herrmann at Drug and Device Law is worth noting, since they represent device makers, defend these suits, and have been championing such a decision for a long time.

Now that they won, it means they have lost business. A whole bunch of lawsuits regarding medical devices that have received FDA pre-market approval will now disappear. And with it, millions in legal fees for BigLaw firms such as theirs that handle these claims.

So what do they have to say about it? Here's the money quote on the subject: "Good defense lawyers go out there every day trying to find ways to put ourselves out of a job. That's what we're supposed to do -- find ways that our clients will have less need for our services."

There you have it. But wait, there is much more. The post goes on to warn of the future hazards to their clients if they now screw up by convincing the FDA to let them put dangerous products out on the market. Will they still have immunity for that product?

Yes. But. And that "but" is the essence of their very-readable post today, because just as laws can be passed that grant immunity, so too can laws be passed that take that immunity away.

In their view this is an opportunity to see if federal regulation results in safer products than private lawsuits that provide that incentive. Essentially, the question posed is: Is it the government or the private sector that can best defend the public from dangerous products?

The question posed, of course, is not just one of public v. private, but of big government v. small. So perhaps, this might be a good time to haul out an old Ronald Reagan quote:

The nine most terrifying words in the English language are, 'I'm from the government and I'm here to help.'

Other posts on the substance of Riegel v. Medtronic:

• New York Times;
  
• Drug and Device Law;
• InjuryBoard;
• Jacob Goldstein @ WSJ HealthBlog;
  
• Finch McCranie;
• Ron Miller
• Ed Silverman @ Pharmalot
• Ted Frank @ Point of Law;
• Michael Krauss @ Point of Law;
• Peter Pitts @ DrugWonks;
• Amanda @ The Pop Tort;
• Michael Shaloub @ Medical Devices, Law, Trends and Oddities

The posts keep piling up...some more ....

• Wake of Reigel - medical device complaint amended to add claims that FDA was misled (Steve Vahidi @ Medical Devices, Law, Trend and Oddities 2/22/08);
• Random Thoughts on Comments We've Received About Riegel (Beck/Herrmann, 2/22/08);
  
• Do Medical Device Makers Deserve More Protection than Patent Owners? (Barry Barnett @ Blawgletter - 2/22/08)
• No recourse for the Injured (New York Times editorial 2/22/08)
• Supreme Court chips away right to sue (Newsday editorial 2/22/08)
• A Matter of Trust? FDA,Pharmaceuticals, Medical Device Manufactures & Our Health (ExecutiveMom, 2/22/08) "Congress obviously needs to correct the court's decision. Otherwise, FDA approval will become a green light for shoddy practices by manufacturers."
  

Labels: Personal Injury

Anne Reed celebrates a year of blogging about juries at her critically acclaimed Deliberations;

And while Anne cuts back on her blogging a bit, Scott Greenfield celebrates a year of blogging about criminal law and his car at Simple Justice, with a staggering 139 posts in January.

Blawg Review #146 lights up on Thomas Edison's birthday at The Invent Blog;

The Cavalacade of Risk, dealing with insurance issues, is up at I've Paid For This Twice Already...

And Brooks Schuelke gives us a thorough Personal Injury Law Round-Up #49, where he tapped my exposé How to Fool a Jury (Is it Insurance Fraud) as the post of the week.

Kevin Underhill gives a lesson on how to write a proper disclaimer.

Labels: Random Notes

It's just like a law school exam. And the sugar refinery explosion in Georgia and the "vulture" like solicitation by an out-of-Georgia attorney brings it up.

Here it is:

• Jeffrey D. Slakter practices in Dallas [fn1];
  
• He solicited clients in Georgia for the explosion via a newspaper advertisement, according to this story on law.com.
• According to his website, Slakter also has a license to practice in New York.

Leaving aside the issues of Texas and Georgia ethics rules regarding attorney advertising and solicitation, and the fact that he apparently has no Georgia license, we turn to the separate issue of whether Slatker is obliged to follow New York's ethics rules regarding his out of state conduct.

According to New York's rules, one can't solicit for 30 days after an accident. [fn2] This rule was established after the Staten Island Ferry disaster here in New York in 2003 that killed 11 and injured 71. Some attorneys, sad to say, raced down to the Staten Island Advance to beat the 3 pm deadline for ad submissions the next day. At that time, rescue and recovery was still ongoing.

So the question is, does New York's rule pertain to any new York attorney regardless of where s/he happens to be practicing?

---------------------------------------------------
fn1. Link provided via TinyUrl re-direct, to avoid giving him the benefit of any search engine optimization for his web site;
fn2. While some parts of New York's new rules were held unconstitutional, this part was not.

Labels: Attorney Ethics

State Farm has been sued for racketeering in New York with a claim that it conspired with "Independent Medical Exam" companies and medical practitioners to produce fraudulent and sham medical reports. The suit, filed January 30th in the Eastern District of New York, is brought under the Racketeer Influenced Corrupt Organization Act (RICO). (This story has not been previously reported.)

State Farm acted in concert with "IME" companies and doctors to furnish fraudulent and boilerplate reports, according to the suit. The objective was to procure "scientifically dishonest reports in order to terminate benefits." The Complaint is here: McGee-v-StateFarm-RICO-Complaint.pdf

Of particular interest is that the plaintiff is not an injured accident victim that was wrongfully deprived of insurance benefits, but John McGee, a physician practicing rehabilitative medicine. The physiatrist asserts that claims submitted to State Farm are being wrongfully denied, thus depriving him of the revenue he should be receiving for the treatment he rendered. He alleges that "sham" examinations were done by the defendants to procure false findings so as to cut off the benefits, resulting in the claims he submitted being denied.

The Complaint alleges that State Farm and the other defendants communicated that the evaluations and reports must deny that its insureds needed future treatment and that there was a lack of medical necessity for prior treatment. The Complaint goes on to state that State Farm engaged the other defendants with the expectation that reports received would be favorable to the insurance carrier, and to the detriment of the insured.

McGee states that "State Farm made it known to the other defendants that if they did not provide sufficient denials within the evaluation reports then State Farm would not use their IME services."

The defendant "IME" companies are Independent Physical Exam Referrals, Inc., and Metro Medical Services, LLC.

According to the website of Independent, they play no role in the production of the report:

We have addressed the "independent" part of the examinations by requiring all reports to be independently processed by the medical provider, typed and forwarded on their own stationary. IPER does not participate in the production of the reports, thus ensuring an arms length transaction for our clients. IPER reviews all reports by a registered nurse only to ensure that essential components of the report are present and that your questions are answered. The medical opinions rendered are those of the examining physician and based upon his/her clinical assessment and review of medical records.

This description, however, is directly at odds with the allegations of the complaint, which states that "boilerplate medical evaluation reports" are used. That may be an easy thing to prove if identical language is used in many different reports.

Whether these companies are like Integrated Risk Services Inc. -- a company I wrote about Tuesday that specifically states it doesn't want information favorable to the plaintiff included -- remains to be seen. (See: How to Fool a Jury (Is It Insurance Fraud?))

Another part of the Complaint alleges that State Farm pays an excessive fee to the IME company for the doctor's services, and that the money is then shared with the IME company or a kick-back is given to non-medical personnel. The complaint sets forth (in paragraph 19) that felonies have been committed with respect to the sharing of medical fees with non-medical personnel.

Thanks to my anonymous tipster for the heads up.

The plaintiff is represented by Bruce Rosenberg of Bellmore, New York.

Update 3/2/08 -- Allstate was just hit with a similar suit: Allstate Slammed With RICO Charge Over Sham Medical Exams

Update 3/3/08 -- A Doctor Sued, In Insurance Company RICO Suit, Responds To The Charge

Labels: Insurance Industry

Actor Henry Winkler took the stand yesterday in the John Ritter medical malpractice trial.

According to a story at E-Online, two hours before Ritter was taken to the hospital (where he died of aortic dissection):

"We were talking in the middle of the soundstage," Winkler said. "He was sweating, and told me, 'You know, I really need to get some water.' I went one direction and he went the other, and that was the last time I ever saw him."

More on the story at the LA Times and Huffington Post, among others.

(Hat tip to Christopher J. Robinette at TortsProf)

Labels: Interesting Cases in the News

Ken Shigley, a Georgia personal injury attorney, is not happy. His ire is directed today at out-of-state attorneys who have swooped into Georgia with full-page ads to solicit victims of a large sugar refinery explosion and solicited victims at a burn clinic. Should the out-of-state lawyers be concerned?

Well, Shigley is not just blogging about it, but also happens to be on the Disciplinary Rules and Procedures Committee of the State Bar of Georgia.

And Shigley thinks, as do I, that the conduct of the few "makes us all look bad." Better we clean our own house than wait for others to come and in and do it for us.

More:

• Georgia Trial Lawyers Association Condemns the Practice of 'Trolling for Victims'(GTLA);
• Georgia Trial Lawyers Condemn the Solicitation of Victims of the Savannah Sugar Refinery Blast (Robin Frazer Clark);
• Ga. Bar Probes Reports of Lawyer Solicitation Following Refinery Blast (ABAJournal)
  

Labels: Attorney Ethics

This is a lesson on how to fool a jury. And how to get caught. It's about doctors and lawyers and ethics that belong in the sewer. It's about potential insurance fraud. And it is an exposé of a very seamy side of personal injury trial practice. And I will name names. It might be the most important post I've made since I started blogging, and it comes out of a Manhattan trial that just concluded.

The story emerges because doctors who performed "independent" medical exams in a personal injury case were told, in writing, to game the system. A document was discovered in the file of a neurosurgeon that included this: If prognosis appears good, then state that - otherwise be silent.

We start with a basic aspect of personal injury practice: When you claim injuries to your body in a lawsuit the other side is entitled to have a doctor (or two) examine you to see if your claimed injuries are legitimate. Courts and defense lawyers like to call these "independent" exams. But are they?

The scene is Supreme Court in Manhattan (this is the main trial court, not the top appellate court). And on the stand is Harvey Goldberg, a physiatrist that was hired by the defendants to examine the plaintiff, Gerard Malloy. Malloy had suffered a terrible back injury when he tripped over an exhaust fan that had been left in a darkened hallway in a building. In the well of the courtroom stands David Golomb, one of the city's top trial lawyers, cross-examining Goldberg.

But all is not right with the report from the exam that Goldberg holds in his hands, because something seems to be missing. Like his opinions. So Golomb asks him, on a hunch, if there was another version of the report that did contain his opinions. Ummmm, well, now that you mention it, there had been another version comes the reply. Golomb presses on and discovers that Goldberg had not only been asked to edit his original report, but complied. He apparently took his opinion on the cause of Malloy's injuries out of the original report. The testimony looked like this from a transcript provided to me:

Q: So why is the report dated more than [one month after the exam], December 12 of 2006? Why? If you don't know, you can say that too, Doctor.
A: I don't know.
Q: Was there a prior version of this report? Was it sent to anybody to look over or edit?
A: There may have been a prior draft that was corrected.
Q: Changed? We don't know, do we?
A: There was an instance of the causality originally being requested, and then I was told that the causality was not requested.
Q: So if I understand you, you were told by the people asking you to prepare this report not to offer any opinion on what the cause of Mr. Malloy's injuries, if any, or problems, if any, were? Did I just understand that answer correctly?
A: Yes.

Why was removing causation so important? Because plaintiff Malloy had been in a car accident five years earlier, and the issue of whether it was the car accident or the trip that caused the back injury was pretty darn important. And Goldberg was asked to take his opinion out. And he complied, thereby creating a new report that he knew was incomplete.

Remarkable? Keep reading because it gets worse. The next day neurosurgeon Douglas Cohen prepares to take the stand, as he had also examined Malloy for the litigation. But before Cohen takes the stand, Golomb sees the doctor talking with the defense lawyer in the hall. And the defense lawyer is holding a paper in his hand that came from the doctor's file. And the lawyer is looking surprised, and very unhappy. And he knows that Golomb is watching the interaction.

With Cohen on the stand, Golomb discovers what that paper is. It is the instruction sheet for the doctor directing him to omit opinions from the "independent" report that are favorable to the plaintiff. Those marching orders, published here for the first time, included (IntegratedInstructions.TIF, another version of the file IntegratedRisk-Instructions.jpg):

• Point out whatever findings or claims are not related [to the lawsuit]. Otherwise be silent on causal relationship.
• If prognosis appears good, then state that - otherwise be silent
• If you can state that plaintiff can participate in all normal activities, do so. If not, be silent
  

This instruction sheet form from the folks that hired him came from a company called Integrated Risk Services Inc., whose job it was to set up these "independent" medical exams. The instructions appear clear that this was not to actually be an independent report, but in fact, was designed to be a deliberately incomplete and therefore deceptive report. And Cohen had errantly brought it with him to court. That form instruction sheet, by urging deliberate omissions, essentially asked the doctors to falsely claim their exams and reports where "independent."

So who runs this company and asks these doctors to do this?

A review of the website for Integrated Risk Services, Inc. reveals that this is "ATTORNEY MANAGED INDEPENDENT MEDICAL CONSULTATION SERVICES." Attorney managed, eh? I wonder which attorney is urging deceit for "independent" exams? A corporate search through the New York Department of State web site reveals the company registered without a name in a post office box in Great Neck, New York, while the web site for the company gives a different PO box in Syosset, New York, also without any names. Nice.

Edit: On 3/25/08 Steven Fruchtman, an attorney out on Long Island, called to say that the company was his. My prior investigation, which tracked the company down through a residential address of his father, has now been rendered moot and been removed. Steven Fruchtman informs me that his father has nothing to do with his business.

Is it called lying when you deliberately omit pertinent opinions in an exam you are claiming is "independent?" Is it suborning perjury by asking someone else to do that on the witness stand? Is it insurance fraud to be so deceptive if the objective is to deprive an individual of insurance funds to which they may entitled? If a plaintiff was deceptive, would the insurance industry and big business scream fraud and go running to the American Tort Reform Association? Is there one standard or two?

I leave it to you, dear reader, to ponder whether ethical violations have occurred for doctors and attorneys involved. And this is not just left to the reader, but to the NYS Department of Health. And to the attorney ethics committees of the state if, in fact, this was an attorney managed company and perhaps, to the NYS Attorney General should any of them stumble upon this little exposé.

Update, 3/25/08: After Steven Fruchtman called today, I made edits to this post as a courtesy to him, including the removal of information regarding his father. He has been invited to comment here if he sees errors.
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Full Disclosure: I know David Golomb for over 25 years and he trained under my father when he was a newly minted attorney.

Labels: Inside The Well, Insurance Industry

The Center for Justice and Democracy has just started a new blog on tort "reform," called The Pop Tort. In other words, yet another blog has shown up to demonstrate that when it comes to finding blog names, I'm not the creative genius to be consulted.

For those that don't know, the Center for Justice and Democracy, takes on many of the usual canards and propaganda from those that wish to promote protections and de facto immunities for big business wrongdoers. Those promoters call this tort "reform," though where I come from reform is supposed to fix things, not break them.

Welcome aboard and good luck. And remember, when the first link comes in from Point of Law...

You boys know the rules.
Watch your low blows, kidney punches, rabbit punches.
In case of a knockdown, you go to the corner I tell you...
and you stay there until I tell you to come out.
Shake hands and let's have a good fight.

Labels: tort reform

Last year Mercy Medical Center out on Long Island did a double mastectomy on a woman in her 30s. The problem was that she didn't actually have breast cancer, as her test results were mixed up with another patient. She died from complications the day after the surgery.

According to today's New York Times, and the New York Post from yesterday, the hospital is under investigation by the Health Department. The hospital was being investigated for the failure in the pathology lab with respect to the tissue mix-up that led to the woman's death, but apparently led to a doctor's complaint that "a physician's assistant had improperly inserted catheters, chest tubes and pacemakers into patients. Three such patients died, the doctor said: a 65-year-old man and a 64-year-old woman last summer, and a 19-year-old woman in October."

It is worth noting, I think, that the investigation apparently comes at the behest of a physician. So that while some folks in the hospital may be trying to cut corners with the use of physician's assistants when not appropriate, others are apparently not willing to remain silent on the subject. This reminds me to some degree of the nurse who wrote two days ago about her refusal to remain silent on which doctor's were reviewing fetal heart monitor strips while covering for another (see: How Medical Malpractice Gets Covered Up).

It's good to see when medical personnel push back against the very disturbing White Coat of Silence that was documented last year in a study. Having the doctors go the way of the police and their blue code of silence would be just awful for patients.
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Note: Last year I covered a case of a woman with a double mastectomy after a lab screw-up, but there is no reference to Mercy Hospital or death in the story, and I am unclear if this is the same case. See: Long Island Woman Has Unneeded Double Mastectomy.

Labels: Medical Malpractice

Ever wonder how malpractice gets covered up or why it doesn't appear in the medical records? Well, an anonymous obstetrical nurse from Pennsylvania opened that little door for us today.

Writing at the blog At Your Cervix (perhaps one of the most creative medical blog names around), she writes how she was reprimanded for documenting in the medical chart the name of a covering doctor that had reviewed the external fetal monitor strip. You read that right: Folks were actually mad at her for being accurate with her notes and writing down in the chart who had reviewed important information regarding the patient.

Now the covering of a patient by another physician can be fairly common. No one works 24-7, and even during working hours there may be other patients or emergencies to attend to. This is particularly true in obstetrics. But apparently, the Powers That Be at this large teaching hospital where she works would like this to remain a mystery. She writes:

Dr So-And-So's colleague feels that we should only chart "attending aware of EFM strip" or something along those lines - and not actually document the physician's name on the record.

What does this mean? A couple things. First, and most importantly, it means that when a subsequent physician or nurse comes on the scene they won't necessarily know who read the strips and who is aware of the situation. That is one less person with actual knowledge of the patient for the next doctor to talk to. Second, it means that if something does go wrong, it is the nurse in the hot seat.

The nurse goes on to write:

Apparently the physician colleague went on to say that if it was every subpoenaed for court, he would refuse to hand over the list of attending physicians on duty during that time period.

Isn't that darling? Now this nurse is one tough cookie. Because this was her ultimate response:

I told my nurse-manager, in no specific terms, that I will continue to document as I do, to cover MY ass. I'm not out to harm anyone - patients, women, babies, physicians, midwives, fellow nurses, etc - but so help me, I will document completely and thoroughly for not only accuracy in the chart, but for best recall for myself if I am ever taken to court.

Now here is the kicker: It was just last week that I was in a debate with Ted Frank over at Point of Law about Bush's statement in the State of the Union about "junk medical lawsuits" and I said that Bush never cites empirical evidence that this was an actual problem. Ted responded with a study in the New England Journal of Medicine that showed there were some suits for which claims were paid that, based on the documentation, didn't have merit. And while I responded that the authors of the study said this was not a significant problem, here is one more thing for those tort "reformers" to consider: Sometimes there are reasons malpractice isn't revealed in the chart, and that is deliberately lousy charting by those involved. They are thinking about themselves instead of the best interests of the patient.

Thanks to Elizabeth for the link to At Your Cervix.

[Addendum 2/11/08 - I wrote about malpractice cover-ups two months ago in Medical Malpractice and the White Coat of Silence, which deals with a Harvard study done in conjunction with Mass. General Hopsital. The study found that 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.]

Labels: Medical Malpractice

Personal Injury Law Round-Up # 48 by Brooks Schuelke, including a round-up of posts on contingent fees that I never got around to writing on;

Hall of Famer Jim Palmer wins an 890K medical malpractice suit in Florida regarding a detached retina (via Schuelke, above)

The Health Wonk Review by David Williams is up at Health Business Blog.

You are my sunshine (a video with no relation to the law whatsoever)

Labels: Random Notes

If the name Jeb Corliss doesn't ring a bell, he is the guy who got busted trying to parachute off the Empire State Building in July 2006. He was caught right away and arrested. The reckless endangerment charge was dismissed (currently on appeal), and he now brings an action for intentional infliction of emotional distress and defamation. For background, see Marc Randazza's two posts on the subject:
Jeb Corliss Sues Empire State Building and Jeb Corliss Lawsuit Update (with video).

Jeb Corliss, it seems, is a moron of the first degree. Either that or he is such a publicity hound that he knows bringing a stupid lawsuit will simply bring him more publicity, and any publicity is good publicity.

The essence of his argument seems to be that he is an experienced BASE jumper and knows what he is doing and therefore won't get killed doing it and won't land in traffic. Well jolly good for all that.

But he isn't the only one in the City of New York, and there just might be a few people walking down below near this spectacular landmark building that are stunned at the sight of a man parachuting down into one of the busiest places in Manhattan, and that they just might take their eyes off the taxis, busses and other vehicles flying by as they cross the street. Worse yet, he could be seen by someone actually driving one of those vehicles who would be, and this isn't exactly a surprise, severely distracted.

Now I once saw a guy parachute unexpectedly into a high profile event, so I have a perspective on ground reactions to such a thing: In Game 6 of the 1986 World Series at Shea Stadium, Michael Sergio floated down out of the sky onto the field. And the crowd, myself included, was pointing and roaring while he was still hundreds of feet off the ground. Let's just say he had everyone's absolute and undivided attention.

Great stunt. Now picture that with moving vehicles on the street below. All of a sudden, not such a great stunt. Dumb stunt. Dangerous stunt. The kind of stunt where pedestrians can get inadvertently run down by large moving vehicles.

This clown doesn't want me on the jury regarding his lawsuit. In my view, the police and security were well within their rights to do most anything humanly possible to stop him from creating a dangerous condition on the ground. The idea that they demonstrated "extreme and outrageous conduct," as required under New York law to bring a suit for intentional infliction of emotional distress, will most surely fail. (And the idea that a BASE jumper actually suffered emotional distress from the experience is too stupid to be believed.)

He's suing for the intentional infliction of emotional distress after planning this stunt, he says, for two years. Frankly, I think the guards that stopped him have a better claim against him.

Elsewhere:

• Suit: You kept me frm jumping off the Empire State Building (Overlawyered)
• Would-Be Jumper Sues Empire State Building (NYT- City Room)
• Stuntman Could Face Indictment Anew (Associated Press)
• Ridiculous Lawsuit of the Month (CKA Mediation and Arbitration)
  

Labels: Personal Injury

The anonymous Editor of Blawg Review appeared today at ALM's LegalTech New York trade show, where vendors are currently showing off the latest and greatest of legal gizmos, gadgets and doodads for parts of the legal community.

I was lucky enough to catch up with Ed at a bloggers breakfast before the show, thanks to a generous invitation from Monica Bay and friends at ALM. When I last saw Ed in November, he was staggering through the finishers area of the New York City Marathon, having run the race dressed as Gumby to conceal his identity. Readers may recall my description of him at the end of his 26.2 mile running tour of New York:

His face was smeared with Gumby green paint that ran and mixed both with sticky lime green Gatorade and with his own accumulated body salts, a nightmarish look that was lit up by the sun's reflection off his heat shield. But his eyes were electric and ecstatic and shone through the gloppy mess, giving the volunteering medical staff all the information they really needed about his health.

And so today, camera in hand, I snuck up on him in an attempt to capture a picture of what those eyes look like. Alas, the energetic editor would not hold still, and was in the process of showing off his credentials when the camera shutter finally clicked a full second after the button was pushed. Which goes to show you why shutter-lag is such a big issue with small digital cameras.

When he disappeared, rumors flew of a sunset train ride up along the Hudson as he sought to explore others parts of New York.

As for the show, since my time was severely limited, I can't really write much. But others can, and are. For running updates on the show, visit Law.com's Legal Blog Watch.

Other sightings:

• Bob Ambrogi;
• John Bringardner;
• David Giacalone;
  

Prior sightings:

• Kimberly A. Kralowec;
• Ed sights himself and provides photo;
  

Labels: Blogging

Four years ago comic actor John Ritter suddenly died from an aortic dissection after being rushed to the emergency room from the set of his sitcom, 8 Simple Rules ... For Dating My Teenage Daughter. A medical malpractice action ensued. The defendants include a radiologist that did a scan two years before and failed to note any enlargement of the aorta in the 54-year old actor, and a cardiologist that saw him in the emergency room at Providence St. Joseph Medical Center in Burbank, California.

According to this story in USA Today:

[T]he cardiologist [was] summoned to the emergency room at Providence St. Joseph Medical Center in Burbank after Ritter was taken there complaining of nausea, vomiting and chest pain. Plaintiff's lawyers say a chest X-ray should have been performed before Lee treated Ritter.

The doctor's lawyers say that there wasn't enough time for that an