Overlawyered letters

Readers following the malpractice crisis may find interesting this clip regarding a jury's award of $1.54 million to a woman in whom a surgical sponge had been left after her surgery. (Hilary Bentman, "Court upholds malpractice decision", Bucks County Courier Times, Aug. 10). According to the story, hospital officials admitted the error, blaming it on nurses who had given the doctor an inaccurate sponge count. A court held that not only the hospital but also the doctor could be held liable and cited something called "the 'captain of the ship' doctrine -- meaning the doctor has responsibility for all that happens in the operating room". It rejected the doctor's argument that he had not himself been negligent and ruled that "the jury could properly find that since he himself placed the sponges in Mrs. Cox's abdomen, he remained ultimately responsible for removing them, regardless of any negligence on the part of the nurses in the operating room."

A friend of mine commented about this case that it would be irresponsible for every doctor to do his own sponge count. Keeping a patient under anesthesia for even one second more than necessary is really negligent. Yet that is what the law in Pennsylvania now seems to require. -- Beth Caucci, Clarks Summit, Pa.

Posted by Walter Olson at 11:44 AM | Permalink | TrackBacks (1)

I just received a notice in the mail informing me that, as a member of the class of Citibank and AT&T Universal Card customers, I was eligible for a refund under the terms of a settlement agreement reached in a class action lawsuit. A quick internet search revealed the following (PDF, see last page):

"The Cards business agreed to create a settlement fund of $18 million, most of which will be distributed automatically to cardholders and to make a cash payment of approximately $9 million for attorneys fees and costs."

My refund check is for $0.18. -- Paul Prichard, Moodus, CT

Similarly from other readers; and see Jeffrey A. Cross, I Fought the Law, Washington Legal Foundation (PDF), Half of an Empty Glass. One of the commenters on Cross's site observes: "I got 16 cents today. Funny, although the suit was about getting refunds for fraudulent late fees, I don't think I paid any 16-cent late fees." (more on class actions)

Posted by Walter Olson at 11:12 AM | Permalink | Comments (112) | TrackBacks (7)

Norton Internet Security is blocking your website as if it were a criminal site. It lists the reason as "weapons". Please contact them and fix this. Norton owes you, and its users, an apology.

-- Gary Friesen, no address given

We occasionally hear of Overlawyered being blocked, and once experienced this ourselves at a public AT&T web terminal -- items on sexual harassment are what we most often have suspected of causing trouble. We don't own a copy of Norton Internet Security and can't verify whether this is (still) happening to its users. Nor have we time or energy to approach the makers of the various blocking systems about this. But it's hard for us to believe they would consciously intend to restrict access to this site.

Posted by Walter Olson at 10:42 AM | Permalink | TrackBacks (2)

You mention (see Dec. 2) the week in early November during which Connecticut juries in three cases rendered medical malpractice verdicts of $1.13 million, $2.2 million, and $10 million. In at least two of these suits there had already been settlements or awards from other defendants. In the case of the $10 million verdict, other defendants had already settled out of court for a reported $3 million. The remaining defendant, who was no longer the patient’s physician at the time of the incident, had a policy limit of $1 million. The plaintiff's attorney is now exploring options for collection of the remaining $9 million.

Although the details of the case differ widely among newspaper accounts, it has been reported that the defendant's insurance company refused settlement, citing what it viewed as the absence of negligence on the part of the physician. The Connecticut Law Tribune quotes the attorney as saying, "the insurance company was so greedy [that it] never offered a red cent…" and "It's mind boggling that this insurance company -- run by doctors, which may be the first mistake -- forced both the plaintiffs and the defendant to go through the agony of a trial." In other words, a defendant has no right to adjudication, even though suits against physicians result in a defense verdict 80 percent of the time!

If the above referenced physician's personal assets are disgorged, shock waves will be sent through the medical community. Currently most physicians have insurance limits of $1 million, as higher limits are seen as unaffordable and often unobtainable. If these limits do not satiate the avarice of the litigation industry and personal financial ruin becomes a real threat, the exodus of physicians from Connecticut will accelerate. Why miss important milestones in a child’s upbringing -- a first football game or a first acting role in a play -- only to learn that with all the sacrifice you can no longer protect your family?

-- Leonard Ferrucci, New Canaan, CT

Posted by Walter Olson at 9:32 AM | Permalink | TrackBacks (1)

Regarding your Nov. 24 report on the $8.8 million jury award against the state of Washington over charges that state social workers neglected the problems of two delinquent teenagers in foster care: I'm trying to think of a solution for the general problem presented in this case that would assure that county social service agencies act responsibly (on behalf of the public-taxpayer).

A few years ago, while serving as a Law Guardian, I discovered that our county DSS had unofficially told its staff social workers and all private agencies that no child was to be placed in the (more-expensive) restrictive forms of foster care if the child's family was willing to participate in (cheaper) at-home "preventive" services. This meant that children who were clearly out-of-control and dangerous were allowed in the community, schools, etc. The sole purpose was to save money.

In one case, where I was the law guardian, the social workers covered up problems to keep the judge from placing the child into a restrictive placement, after the judge had declared from the bench that even one additional incident would result in the child being taken from his home. They repeatedly told the judge, in writing, that all was going well -- not mentioning that the boy had been suspended from school over 20 times in one school year, often for violent outbursts.

If such a child causes severe injuries, isn't the County responsible in some way? Has it been pennywise but pound foolish with the public trust and purse?

Any thoughts? -- David Giacalone

Posted by Walter Olson at 12:43 PM | Permalink | TrackBacks (2)

Re: your Nov. 25 report: It is worth noting that the Supreme Court of England and the Superior Court of Ontario both have specialized Commercial Court lists, for the expeditious handling of a limited class of cases.

The Commercial List was established in Ontario in 1991 based on the English practice which has existed since at least 1983: see Ninemia v. Trave Schiffartsgesellschaft [1983] 1 WLR 1422. -- Geoffrey Newbury, Barrister and Solicitor, Mississauga, Ontario

Posted by Walter Olson at 12:15 PM | Permalink

Re: Fox v. Franken (Aug. 12): I like your site and believe in personal responsibility but corporations, especially those in the business of news, parody or other entertainment, should be ashamed of clogging the courts and their publications suing over something like this. The claim is colorable but a news network that preaches personal responsibility and knows the trademark laws as well, should know better.

People game the system, but corporations do as well. If you had a nickel for every frivolous lawsuit bought in the name of trademarks, or bogus tortious interference with contract type cases, you would be be a rich man. So I think Fox should be ashamed. Perhaps there a connection between people thinking there is a remedy for every wrong or a system to be gamed if our news organizations show them that they can use the same system? -- Trevor Jefferson, no address given

Posted by Walter Olson at 11:44 AM | Permalink

The tort lawyers have been arguing that the crisis in malpractice insurance is largely caused by the fact that insurance companies are not getting the fat returns on investments they were getting in the 1990's and thus have to charge more to break even. I have seen this offered up several times on TV news shows while the interviewing reporter nods sagely in the cutaways and says nothing. But it is obviously nonsense. For one thing, insurance companies are greatly restricted as to what they can invest their reserves in -- no startup dot-coms for them, but treasuries, triple-A bonds, real estate mortgages, etc. And with integrated financial markets (which have been around since the telegraph), interest rates are uniform throughout the country. So, if this were the problem, and not fast-rising costs, insurance rates would have risen uniformly across the country. They didn't. They have risen far less in states such as California (of all places) with strict limits on pain and suffering. -- John Steele Gordon, North Salem, N.Y. (see also Jan. 24-26)

Posted by Walter Olson at 11:42 AM | Permalink

Objectively, your column [FoxNews.com] ranks about as high as an ant can jump. Every source that you use is stunningly anti-lawyer. Additionally, the 38 million in punitive damages that you cited will most certainly be reduced either in a motion for new trial, or on appeal. Nominal damages will not constitutionally support a punitive award that large.

Please tell people the whole truth. Be objective. Tell both sides. This is just getting ridiculous - journalists and columnists on both ends shading facts and using common misconceptions to bolster their arguments.

Are you even a lawyer? -- Adam Allen, wilsonlawfirm.com

You're so right -- how dare nonlawyers comment on the legal system? Or presume to rely on such "stunningly antilawyer" sources as the AP, L.A. Times and San Francisco Chronicle? We couldn't have made our point better ourselves-- ed.

Posted by Walter Olson at 10:03 AM | Permalink