The story of actor Michael Douglas and his stage-four throat cancer caught my eye when reading about an appearance last night on David Letterman, and I saw the comments of his enraged wife, actress Catherine Zeta-Jones:

Meanwhile, his wife Catherine Zeta-Jones is fuming at doctors for not diagnosing it months ago.

“It makes me furious they didn’t detect it earlier,” she told People magazine in its latest issue. “He sought every option and nothing was found.”

When people fume about the perception of bad medical treatment, they often turn to lawyers. And those lawyers will look at exactly what tests were done in the face of the complaints being made.

Now I have no idea if this will result in a medical malpractice suit. I haven’t seen the records and I merely opine based on press accounts. But anger is one of the great motivating factors for hiring counsel to investigate whether medical malpractice occurred. When folks aren’t angry, and they get apologies from medical personnel for instance, suits are less likely.

And that isn’t just my opinion. In a 2008 story in the New York Times (Doctors Say ‘I’m Sorry’ Before ‘See You in Court’), medical professionals are found to be increasingly agreeing:

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But with providers choking on malpractice costs and consumers demanding action against medical errors, a handful of prominent academic medical centers, like Johns Hopkins and Stanford, are trying a disarming approach.

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs…

Now I presume that Douglas and Zeta-Jones are more than a bit comfortable, financially speaking. And any suit that might be contemplated wouldn’t be about the money. In fact, the money might be so small relative to their wealth that if suit were filed I could easily see it accompanied by a statement that any recovery would be donated to a charity.

And such a suit would not just deal with whether doctors acted reasonably. For even if there were departures from accepted care, they would still have to prove that the delay was medically significant. All I see from the story is “months,” so much is obviously unknown to the public.

One should not presume, by the way, that just because a celebrity (or his/her family) brings a malpractice suit, that a jury will ignore evidence and side with them.  After John Ritter died from an aortic dissection, a medical malpractice and wrongful death suit was brought. While some defendants had settled, some defendants refused. And it was a defense verdict despite the big name at the center of the suit.

In 1996 Yaron Ungar and his pregnant wife were machine-gunned to death in Israel. Their survivors claimed that the attack was carried out by members of Hamas acting under the command of the Palestinian Authority and the Palestine Liberation Organization. In July 2004 a trial was concluded and a verdict against the PLO was entered for $116M. This was a default judgment, with the Palestinians refusing to participate.

Getting a verdict is one thing. Getting the money is another. And today the PLO and PA lost another round (having apparently decided to belatedly defend themselves).

The plaintiffs had located $100M in a New York bank that were frozen as a result of the verdict, and a battle ensued as to who the rightful owner of the funds was. The plaintiffs claimed that the Palestinian pension funds whose names were on the accounts were mere alter egos to the PA and PLO. Plaintiffs claimed, in essence, a form of money laundering being used to hide the money.

Today, the Appellate Division (First Department) ruled in Strachman v Palestinian Auth. that the issue of whether the pension funds were an alter ego or not was a jury question. The Palestinians, obviously, didn’t want this matter tried before a jury. Machine gun terror attacks don’t seem to go down so well with juries, and they obviously hoped to have a better chance with a single judge.

There was one dissent, with Justice Tom believing this was for the bench, and not the jury. Expect the matter to up to New York’s high court.

Elsewhere previously:

• $116m awarded in terrorism suit (Boston Globe, 1/29/04)
• Palestinians Ask U.S. To Intervene in Suits Over Terrorist Attacks (Washington Post 2/12/08)
• Judgment upheld in terror case (ProJo.com, 5/16/09)
• Appeals panel sends terror case back to lower court (Projo.com, 3/29/10)

Tiger Woods is providing a feast of legal issues as he swiftly morphs from choir boy to bad boy.  And in the process he opens up a veritable bar exam full of questions.

Since at least half of lawyering is first identifying the potential problems, let’s take a peak inside the cans of worms he opened.  Your familiarity with the facts is presumed. But since those facts are likely to change within minutes –  since the one thing the media loves more than creating heroes is destroying them, and any story will do for Tiger at the moment –  the current state of affairs is the media claiming extra-marital affairs with 6-10 women. That number changes depending on who is keeping the scorecard, but you can bet they’re all are hoping for a round of 18.

The list below is long on the criminal, matrimonial/custody and contract areas of the law, but I also see a smattering of First Amendment, intellectual property, sports and ethics.

Without further ado, and assuming many rumors as true, when some likely aren’t:

• Domestic violence possibility;

• Drug / alcohol related driving accident;

• Right to silence in discussion with police (see: Tainting Tiger @ Simple Justice);

• Drug addiction (can be an issue both for endorsements and potentially for playing golf with drugs in his system — I’m just issue spotting, I don’t know what golf’s drug rules are):

• Possible lost endorsements (related either to drugs or for conduct with the women). Gatorade was the first to drop him:

• HIPAA violations for whoever disclosed he had overdose written on his chart when he went to the hospital after the accident;

• Divorce;

• Validity of pre-nuptial agreement (as well as disposition of real/personal property) given the unexpected conduct of Woods;

• Alienation of affection (still exists in some states, where did Tiger have his affairs? And conflict of laws might go with that). Can wounded spouse Elin Nordegren sue the women Tiger was with, not because she needs the money, but to make it unprofitable for them to sell stories to the press? (see: Should There Be Liability for Intentional Interference With Marriage? @ Lead Counsel Corner);

• Custody of two children;

• Custody of children if wife hauls the kids to Sweden (treaties?);

• Taxation – While divorce settlements aren’t generally taxable,  what if a confidentiality agreement is attached to it? That  happened in Amos v. Commissioner with a personal injury claim against Dennis Rodman. (And is Woods going to re-invent himself as golf’s Dennis Rodman?);

• Ethics, regarding lawfirms that may have leaked details of pre-nuptial agreement and/or discussions regarding modification;

• First Amendment / Defamation – For any woman the press falsely asserted was having an affair with Tiger, but wasn’t. Is she a public person for whom an actual malice standard applies, or a private one with a different standard? The New York Times Room For Debate Blog batted around the issues of privacy and who is, and is not, a public person.

• Tiger purchasing the exclusive rights to the stories of women he has been with (a/k/a buying silence, see: JDJournal):

• For Tiger’s Harem you can add contracts to sell stories to others, intellectual property rights regarding those stories (and photos) and the books/movies that are no doubt already being devised; and

• Can I trademark One Man Bar Exam? And how do I put that little TM thingie in?

While Hollywood is no doubt ramping up for Tiger Woods: The Movie, I’m busy wondering about Tiger Woods: The Bar Exam.

This man could single handedly stop the bleeding of jobs from the legal sector and at the same time give law profs and bar examiners plenty to work with.

OK, so without making any jokes about his putter, or about Tiger’s Wood, what legal issues have I missed?

(Photoshopped image of “Tiger Rodman” by Dan Turkewitz)

Links to this post:

Tiger Woods and Exams?!
Have you heard enough about Tiger Woods? Well, maybe you should keep listening. Eric Turkewitz of the New York Personal Injury Law Blog writes that Tiger Woods is a “One Man Bar Exam” because of the breadth of his legal difficulty. …

posted by Jenny Rempel @ December 10, 2009 10:44 AM

A partner at a leading New York law firm has brought a defamation suit against a local mental hospital, claiming that it defamed him by impersonation in an internet forum, and creating video that asserted he supported “pedophile rapists.” The defamation was, according to the suit, retaliation for comments the attorney had made about the hospital.

Glen Feinberg, a partner at Wilson Elser Moskowitz, Edeleman & Dicker (which does a lot of medical malpractice defense among its other lawyering) has been a long-running critic of SLS Residential. According to this story in Courthouse News, Feinberg claimed that the psychiatric hospital was fined “$110,000 for numerous violations, including illegally restraining and medicating patients against their will, depriving patients of the right to their own clothing and money, and preventing them from communicating with the outside world or leaving the facility.”

According to Feinberg’s suit, comments that were falsely attributed to him started to appear on the web in 2008 followed by videos that appeared on YouTube that called him a “saviour to pedophiles” and a “slime ball who should be disbarred.” Feinberg says that the videos were prepared by Andrew Rath of A. Rath Productions, who is also a defendant in the suit.

One lawyer I spoke with that tried a medical malpractice case with him to verdict some years ago had this to say: “Glen was a gentleman and a very capable trial lawyer. He was easy to get along with and trustworthy, both of which are important qualities when standing up in court.”

In preparing this blog post, I noticed that a number of other blog postings had referenced Feinberg but have now been taken down.

Feinberg is a long-time critic of SLS, having apparently claimed that they traumatized his son back in 2001 and 2002. He has picketed the hospital in the past and been engaged in First Amendment litigation over it.

In other words, this battle is deeply personal. And one thing I’ve learned over the years is that there are few people on this planet more motivated than an angry parent.

(hat tip to Hochfelder)

Much more here:

• Attorney Says Mental Hospital Defamed Him (Courthouse News)

• SLS Residential, Inc., et al., v. Feinberg (SLS sued Feinberg for picketing outside their hospital)

• Former patients sue Putnam mental facility (Coalition Against Institutionalized Child Abuse)

• Appeals court restores $100G in fines against SLS mental health firm (Journal News, 11/22/09)

The news that’s been leaking out of Los Angeles is that Michael Jackson was administered the anesthesia drug propofol by his doctor, Conrad Murray, the night before he died. And that a manslaughter investigation is under way. Other news is that his doctor may have prescribed drugs to Jackson under multiple names.

So it’s time to revisit the post I made the day after he died (Michael Jackson: The Mother of All Malpractice Suits?). At that time I wrote of three potential issues for a doctor that was seeing him if medication issues lead to his death, which I re-examine below:

1. Medical license issues;
2. Medical malpractice; and
3. Criminal prosecution.

I had a number of questions the day after he died, most of which remain unanswered since the autopsy results are not public nor are the toxicology reports. But I wrote this at the time regarding criminal liability:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don’t generally bring these kinds of actions, they also don’t usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

So, assuming that Murray gave the drug, and also assuming that Murray prescribed drugs to Jackson under multiple names (both of which are just rumors), how does this change the equation?

First, let’s be clear that the only reason this manslaughter investigation is going on is because the decedent was big-time famous. This type of investigation would not go on for the other 99.999% of the population.

Second, I’ll assume without bothering to look it up that giving out prescriptions under phony names violates a few laws.

That being said, if those two things are true, then I predict the following:

1. His license to practice medicine will be revoked. The alternative of suspension doesn’t really exist because of the big, bright media spotlight.

2. A malpractice case will be brought and the insurance company (if any) will try to settle quickly for the limits of the policy (in New York the usual primary policy is $1.3M). There are a few reasons for this, the first being it is rare to have government workers do your investigation for you in a malpractice case, but that is the case here. Discovery will all be done by the police and District Attorney. Add in that the insurance carrier won’t want to throw good money after bad in a case like this while the world is watching. So while a million bucks might not mean much in terms of Michael Jackson, it’s still a million bucks and better in the pockets of the kids then in the pockets of the insurance company.

The big wrench thrown in to this kind of quick settlement is that the lawyer that brings the case for the family will likely have intense pressure to get more than the insurance policy; they will want a whopper of a punitive damage judgment against Dr. Murray.

Why? While I’m guessing that this doctor probably won’t have much in the way of assets after he pays his criminal defense fees, he could still make a bucket of money writing a book or otherwise selling the rights to his story. A judgment against him allows him to be pursued for those fees, the same way that OJ Simpson has been pursued by the Goldman family after they collected a big civil judgment against him. The family will want this done so that Murray cannot profit from his conduct.

3. Criminal law. Dr. Murray will likely face fraud charges regarding the phony prescriptions. And I’m guessing he might face a Martha Stewart Charge (obstruction of justice) for lying to the police regarding his actions. That opinion is based on the doctor being interviewed by the police shortly after Jackson’s death, but that the room was apparently not treated as a crime scene until much later. A search warrant was issued three weeks after Jackson’s death. I therefore guess that Dr. Murray wasn’t particularly candid about the degree to which he had been medicating Jackson (if the rumours are true) and that will expose him to an obstruction charge.

But will he face a manslaughter charge based on reckless conduct? If it was my family or yours the answer would be an easy no because the investigation never would have happened. If it happens here, it is only because of the notoriety of the case. So my best guess is no, though the all-important toxicology results have not been made public. If I’m wrong about the charge I think it will be because of community or political pressure or publicity-seeking by the DA, or something truly remarkable in the toxicology results.

So here is my guess from the cheap seats:
1. Loss of license;

2. Malpractice case that nets the limits of any insurance policy, with continued pursuit for a judgment against Murray so that the doctor can’t profit by selling the story; and

3. Criminal charges regarding obstruction of justice and fraud regarding the prescriptions. If charged with manslaughter, he will be found not guilty based on what we know right now, but the toxicology results can change that in a New York second.

Update: See Michael Jackson’s Mom To Start Wrongful Death Action Against Concert Promoter? (8/18/09)

With Michael Jackson’s sudden death yesterday at 50 have come swirls of rumors about prescription medications he was taking for dancing related injuries. And if toxicology tests show over-medication being a substantial cause of death, that leads to the inevitable questions regarding potential medical malpractice as well as potential criminal liability.

So these are the issues and questions that would/should float about if those rumors prove accurate:

1. Were the medications all provided by a single doctor? If the self-proclaimed King of Pop was getting all the medication from one place, then the prescribing doctor ought to have a good lawyer due to issues of criminal prosecution (possible but unlikely), action against the medical license (much higher probability) and civil suit (discussed below).

2. If there was more than one doctor, did they know about each other and what the other was prescribing?

3. Did all the drugs all come from one pharmacy? Did that pharmacy have an internal system to tickle the pharmacist if there is an inordinate amount of medication going to one person or that some of the drugs are contraindicated given the other meds? If so, did that pharmacist make a call to the doctor(s) issuing the prescriptions?

4. Where were the prescriptions written and filled? This would be a jurisdictional issue that could be particularly important for a pharmacist, who may have immunity if s/he simply followed the doctor’s orders. There is no way to know at the moment if the drugs were prescribed, or even filled, in the U.S. given that Jackson spent a substantial amount of time overseas.

5. Who has standing to bring such a suit? That is a two-part question, as his personal property may be governed by an executor or administrator. But he also has three kids that are all minors and need a legal guardian. Will the mother of two of them, who reportedly gave up legal rights to the kids, be seeking that position in a fight with family members? (This also assumes proper paternity.)

6. From the point of a medical malpractice suit, does it even matter? Jackson was allegedly in debt to the tune of over $300 million, though I suspect a forensic accounting may take some time. But if this was the case of one or two doctors/pharmacists, then there would likely not be much more than a million dollar (or two) insurance policy. When you are that steeply in hock, a malpractice suit may be too insignificant to matter (assuming a limited insurance policy). The estate’s executor and creditors may be unlikely to have an interest, concentrating on the big picture.

7. You can toss out #6 above if the investigating authorities make a slam-dunk decision on liability. That makes a lawsuit easy, and no one would give up an easy million if it were there.

8. In a wrongful death suit, by contrast, the losses suffered by the children would likely go directly to them, bypassing the estate. And if the estate itself is bankrupt, then the kids might actually need the money depending on how Jackson managed his affairs and the nature of any trusts he did (or did not) set up for his children. You’d like to think he was a savvy music mogul, but if he also saw himself as a forever young child, then estate planning could well be something he put off for the future. No one really likes to make decisions about their death, least of all someone with a child’s view of the world.

Best guess from my perch in the cheap seats:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don’t generally bring these kinds of actions, they also don’t usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

B. Civil liability in a medical malpractice suit on behalf of the estate is not likely to garner much of a return relative to the debt. It only comes if authorities find an easy case against someone.

C. The kids will pursue a wrongful death case (via their guardian, whoever it may be) only if: Jackson failed to provide for them; there is little left in the estate after the creditors tear it to pieces; and the case is an easy one.

Update:

• Did Demerol Cause Michael Jackson’s cardiac arrest and death? (Kevin, M.D.)

• LAPD ‘searching for Michael Jackson doctor’ (TimesOnline)

(Top photo courtesy of Rolling Stone, with more here. Headline from Extra, Rio de Janeiro)

Links to this post:

why the michael jackson wrongful death lawsuit may be worthless….
well, it hasn’t been filed yet, but there’s no doubt its coming– a wrongful death lawsuit by the estate of michael jackson. some lawyers are calling it the “mother of all medical malpractice lawsuits.” …

posted by hans@poppelawfirm.com (Blog Author)15999 @ July 28, 2009 9:00 AM

personal links: july 4th weekend edition
if you have any suggestions for links, send me an email, i’m all ears. maryland specific links are at the bottom: the new york times reports that general motors will continue to have responsibility for products liability lawsuits filed …

posted by @ June 30, 2009 9:53 AM

friday follies 1.5
a few more michael jackson law-related (at least tangentially) headlines: what will happen to michael jackson’s kids? and michael jackson: the mother of all malpractice suits? (via) and, of course, michael jackson’s will: the details, …

posted by Tim @ June 26, 2009 5:44 PM

A Brooklyn man filed suit yesterday against Match.com for humiliation and disappointment. That humiliation, of course, will be nothing compared to being known as the guy that sued Match.com for humiliation and disappointment. His name is Sean McGinn.

Links to this post:

match.com: your inactive profiles are breaking hearts
sean mcginn of brooklyn, and lawyers seeking class-action status, say match.com left canceled profiles up, resulting in “humiliation and disappointment” suffered by paying members who sent love-struck missives to the old accounts. …

posted by Walter Olson @ June 11, 2009 11:16 AM

A new account of the JetBlue toilet lawsuit by Gokhan Mutlu is now out, differing substantially from the original story. The version that was in the news on Monday resulted from a $2M suit filed in New York for forcing this passenger to sit in the toilet. The story sounded “ludicrous” to me, and I said so (See: Jet Blue Hit With Toilet Lawsuit).

While JetBlue didn’t respond in public to the allegations, another version, albeit third hand, dripped out in the comments in my blog in the post above.

According to this account, Mutlu was riding free and the captain was the one who got him on the flight:

He begged [captain] to help him get on flight – excersising Caring value CA said he would ASK jumpseating (Not [deadheading]) FA if she was willing to give up seat for pass rider. She was.

Then when the captain went to answer the call of nature mid-flight:

When on bathroom break, non rev approaches barrier and again really thanks CA for helping him get on. CA replies no problem – I didn’t really do anything -if you want to say thanks its the FA who gave up her seat..have a nice day.

And that, apparently, was the last the captain saw of the man until after the flight:

Sees nonrev after flight – very upset. He let [flight attendant] sit in his seat and she fell asleep. Other FA’s would (correctly) not let him sit on FA jumpseat. He was too timid to wake up FA and didn’t know what to do.

I can’t say if this is inaccurate water-cooler gossip or an accurate account. The account is likely a mixed bag, as most such stories are when passed along like the game of telephone, but I think it’s safe to say that JetBlue’s account will likely vary substantially when they do respond to the suit.

The original story just seems a bit too bizarre. There would simply be waaay too many witnesses for any flight crew to allow such a violation of flight regulations to occur — and it would involve the entire flight crew letting this happen. I remain skeptical of the original account.

More:

• JetBlue Sued by Man Forced to Ride in Lavatory (Lowering the Bar)
  

  [T]his guy (and/or his lawyer) is demanding more than the entire lifetime economic output of most Americans as compensation for being required to sit on the toilet for about three hours.

  I had a roommate that used to do that for free.

• Man Claims Jet Blue Made Him Sit in Airplane Lavatory for Hours ($2 Million Lawsuit Included) (The Gothamist)
  

  If this is what a Jet Blue “buddy pass” is, we totally pass.

• Follow-up: Forced to sit in the toilet stinks, but does it deserve $2 million (Gadling)
  

  My point, which is really a question, is this: Why $2 million? Although I am on Mutlu’s side, for what that it’s worth, I’m wondering whether his suing JetBlue for $2 million doesn’t seem a tad, well, greedy, like he saw an opportunity (no doubt goaded by some lawyer) for a quick pay day and took it.

Photo credit: Wikimedia Commons

A defense verdict was handed down by a California jury today in a medical malpractice trial concerning the death of actor John Ritter from an aortic dissection. (Previously: The Medical Malpractice Trial of John Ritter)

The family had previously settled with other defendants for $14M, according to press reports, and had continued on with respect to a radiologist that had done a study two years before his sudden death, and a cardiologist in the emergency room.

The jury found with respect to the radiologist that he had been advised two years earlier to follow up after the study (but also alleged that it wouldn’t have made a difference.) The case against the cardiologist revolved around the failure to do a radiological study that had been ordered when he presented to the emergency room.

When I wrote about the case a few weeks back, I noted:

My personal view: Suits against emergency departments are very difficult, though not impossible. Jurors will, if given half a chance, give the benefit of the doubt to emergency room physicians, often times even if their own protocols are violated. I have no idea what will happen in this particular case since I won’t be in the courtroom hearing the evidence, but I say with some confidence that the scenario presented in the news media presents a difficult factual pattern if the hospital was the culprit in failing to get the CT scan done.

(hat tip to TortsProf)

More: Ritter Lawsuit Demonstrates How Medical Malpractice Caps Discriminate On Basis Of Wealth (David Lowe, InjuryBoard:Milwaukee)

In 2006 Jeb Corliss tried to jump off the Empire State Building with a parachute and was arrested. After being charged with reckless endangerment, a lower court dismissed the case. Yesterday an appellate court reversed and demanded he stand trial.

The appellate decision in People v. Corliss focused on Corliss being overcharged with reckless endangerment in the first degree, because that meant he had to have acted with a depraved indifference to human life. While he may be a moron for thinking it could be done safely, or perhaps he’s just delusional, his conduct was not seen to be wicked as demonstrated by grand jury testimony of steps he took to try to do is safely. Thus, the court held, he should only be charged with reckless endangerment in the second degree, instead of the firs degree, since the lesser charge does not require the same mental state.

In the meantime, and this is the reason it appears here on a personal injury blog, Corliss had the chutzpah to sue the Empire State Building for intentional infliction of emotional distress because he got scared he might get hurt when security stopped him; As if someone that jumps off of buildings with a parachute would be distressed at this. Maybe it wasn’t chutzpah, of course, but just a desperate need for publicity. The quicker that case gets tossed out, with sanctions, the better for our legal system.

Now comes the really, really hard part, since there is zero chance he will enter a plea, in my opinion, because a trial gets him yet more publicity. But how do you find any New York juror that would state that they have an open mind about whether he endangered the people in the street below by trying to parachuting down into the street? It’s like asking if someone can keep an open mind on whether the sun rises in the east. I discussed those dangers in a post last month (see: Empire State Building v. Jeb Corliss).

Unless, of course, he goes with the insanity defense. Then, I think, he’s got a shot at an acquittal. If he doesn’t kill himself first in another stunt.

On a final note, Corliss complained in these comments on a blog just two days ago that the risk of jumping injuries is for suicides, and not BASE jumpers, citing four past examples of safe jumps. Readers will note that his entire argument is self-centered, focusing only on his own conduct. And he utterly ignores the fact that folks will stop in their tracks if they see someone float down from the sky in midtown Manhattan, while buses, trucks, cabs all zip by. The Appellate Division, however, did not ignore that, writing in words that mirrored my own prior post: “Even a properly functioning parachute that landed a jumper safely might cause a variety of accidents.”

Other posts on this:

• When He Says “Jump”, You Ask “How High?” (Greenfield @ Simple Justice)
• Jeb Corliss Lawsuit Update (Marc Randazza – With video of the attempt)
• Man who attempted Empire State jump faces reckless endangerment charges (Daily News)
• Parachute Jumping Off The Empire State Building — Is It A Crime? (Swartz @ New York Legal Update)