Overlawyered letters

On those anonymous certifying doctors in Illinois (see "Anonymous Accusers (Of the Expert Kind), Jul. 23), it seems to me we have to place these certifications in context. Contextual element number one: Medical malpractice defendants already enjoy a protection afforded to few other litigants, in states where some licensed professional must sign off on the claim before it may even be filed. Contextual element number two: The med-mal plaintiff (I assume) cannot rely on anonymous sources for any evidentiary purpose, but rather must produce identified experts to survive summary judgment and proceed to trial. Overall, such certification regimes can be regarded as the state's delegation of a quasi-judicial screening function to medical professionals it has chosen to license, without any intent that the screening function displace the litigation process in which potentially legitimate claims are evaluated on the merits. (There would probably be Seventh Amendment issues, from both the plaintiffs' and defendants' perspectives, if such a displacement were intended.) If the doctors are being enlisted to offer this service on the state judicial system's behalf, it seems reasonable to protect them from attack, whether that attack be from aggrieved defendants or from disappointed plaintiffs who do not obtain the certification they requested. Anonymity may not be a necessary or sufficient device for affording such protection, but it's one way to go about it. Absolute or qualified legislative immunity from suit and/or disciplinary action could be another. -- Peter Nordberg, Daubert on the Web

Well, there's certainly much to be said for putting the case-screening function in the hands of impartial medics employed in a quasi-judicial capacity. For that to happen, one would want to make sure the screening doctors were 1) selected by and 2) compensated by the court itself rather than by the contending parties. Were that the case, we might consider extending to those doctors the near-freedom from suit that we accord to judges, special masters, etc. However, unless I am much mistaken, the current rules in Illinois are quite different: they instead allow a lawyer to shop around for a doctor who will certify whatever the lawyer wishes to have certified, and the compliant M.D. who agrees to serve as a rubber stamp can pocket a fee from the lawyer while fearing neither professional disgrace nor specifically legal consequences.

Even were we to move to a system of screening by truly neutral court-selected doctors, I very much doubt that we would want to accord those doctors anonymity: the values of courtroom transparency and accountability would be too much at risk. As for the danger of retaliation, the law's usual reaction -- in the case, for example, of companies which might fear revealing the identity of personnel decisionmakers in employment suits because of the risk that demonstrators would show up at those managers' homes at midnight -- would be to say that there are already laws on the books addressing the dangers of improper harassment, and if those laws are too weak they should be strengthened directly rather than keeping litigants ignorant of the identities of their key adversaries. -- W.O.

Posted by Walter Olson at 12:33 AM | Permalink | Comments (1) | TrackBacks (2)

On your Jul. 21 item on disabled accommodation on the medical admissions exam, let me start with Disclaimer One: Larry Paradis and the others at his law firm have done some good work for the disabled. Disclaimer Two: I am an old physician-attorney (practicing both) who is frequently appalled by the poor quality of the younger doctors he meets. Comment: The only distractions present at an MCAT exam are the other aspirants taking the test. If they can't function in that setting, what will they do with a child turning blue from asthma, a mother screaming to do something, one nurse asking for orders for treatment for the child, and another nurse asking simultaneously for instructions about the cardiac case in the next exam room? Such is a typical busy clinic or emergency department atmosphere. Multi-tasking with distractions present is ROUTINE. With regret that their aspirations do not match their capabilities, people in that situation have no business in medical school. They are in the same position as I was when my college coach told me, after he had finished laughing, that I would never be a professional-level athlete. -- Matt Howard, Law Offices of M. L. Howard, M.D., Talmage, Calif.

Posted by Walter Olson at 12:25 AM | Permalink | Comments (2) | TrackBacks (1)

The New Jersey case you discussed Apr. 21 has gotten a lot of attention in the dive community, as in this discussion thread (I'm Divepartner1).

But not all recent cases point in the same direction. A different court decision, which has also gotten wide attention in the dive community, upheld liability waivers signed by a man who died trying to dive the site of the Andrea Doria shipwreck. The case, decided under New York Law, is Murley et al. v. Deep Explorers, et al,, 2003 U.S.Dist LEXIS 14749 (E.D. N.Y. 2003)(PDF).

After reading the story you linked, I should add that no one who knows anything about diving would likely see the basis of a negligence action under the facts detailed in the story. Tragic, but the circumstances suggest diver error.

New Jersey is already driving what may be an unhealthy degree of "preventive medicine" in the scuba field. N.J. dive boats require all divers to bring a secondary air source -- i.e., either double tanks or carry a "pony bottle" of 20 cubic feet or more, regardless of the depth of the dive. Thus, a diver unfamiliar with the confusion of this kind of rig has to deal with added complexity, added weight, less mobility, more failure points, more drag or snag risks, ect., than that diver may have the experience to deal with. Greater complexity increases the risk of confusion and panic.

A diver with a modern regulator with a secondary back-up reg., a tank big enough for his/her needs, and most importantly, a skilled buddy should have all that is needed in a dive of 120 fsw or shallower. Delaware boats (from which I often dive) leave equipment to the discretion of the diver, in the same waters. -- Paul A. Meyer, Washington, D.C.

Posted by Walter Olson at 12:21 AM | Permalink | TrackBacks (1)

Regarding your Apr. 21 item on scuba litigation: Scuba Diving magazine regularly carries articles such as this one, which relates the story of a successful lawsuit by the survivors of a "tag-along" diver on an instructional dive who failed to secure a "buddy" as the instructors insisted and met with a fatal accident; the judge permitted the plaintiff's lawyer to introduce questionable assertions about the standard of care expected of instructors under those circumstances.

If you are unfamiliar with diving, I would claim that it is a very safe activity, as long as you follow a simple set of rules. Unfortunately, deviation from the rules can have very severe consequences, a fact that certain people have trouble understanding. Also unfortunately, these are the type of people that tend to blame everyone around them.

In this and in other court cases, instructors have been held to owe a duty of care to anyone around them in the water, even if they aren't diving with that person, and no matter how much that person's negligence has contributed to his or her problem. I find this ludicrous: instructors are not public safety personnel like police, and shouldn't be required to provide (potentially dangerous) help to anyone around them, even when 1) the instructors are not at the time acting as instructors and 2) the instructors aren't diving with the person in question.

I'm a former SCUBA instructor with hundreds of hours of logged bottom time. Incidents like this -- specifically the idea that I should be required to render potentially dangerous assistance to all and sundry (for free, no less) -- and the skyrocketing price of insurance led me to give up my instructor's license. I know that I'm not the only one to have done so; a number of diving buddies used to teach part time on weekends because they loved the sport. This has directly contributed to a fall in the number of available instructors and increased prices for instruction. Basically, it had gotten to the point where I would have had to spend three or four weekends teaching just to break even with the insurance bill, not to mention all the other costs of instruction. The cheapest insurance available runs about $500 / year now; it used to be less than $200. The lawyers are coming; the only thing that will slow them is the industry largely lacks the necessary deep pockets for them to steal from. -- Earl Hathaway

Posted by Walter Olson at 12:10 AM | Permalink | TrackBacks (1)