Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for February, 2006

Defensive pediatrics

“Flea”, who practices as a pediatrician in the Northeast, gets a letter from his professional liability insurer instructing him “to maintain a high index of suspicion for the worst possibility” when patients present themselves, “even when the clinical presentation does not automatically lead one to [the] conclusion [that their lives or long-term health are in jeopardy]”. His response (Feb. 13):

I’m sorry, ProMutual, I cannot practice medicine this way. Let me give the most trivial of examples.

The worst that a child with a fever could have is sepsis or leukemia. I simply cannot maintain a high index of suspicion and do appropriate testing to rule out sepsis and leukemia (i.e., draw a complete blood count and blood culture) on every one of my patients with fever, without regard to the patient’s clinical appearance.

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Trip on your mail? Sure, you can sue

By a 7-1 vote, the Supreme Court decided that current law does not bar a lawsuit against the Postal Service for negligence by a Pennsylvania woman who was injured when she tripped on mail that the postman had left on her front porch. The Postal Service says it is re-evaluating its standards for leaving mail on people’s porches when they are away (as opposed to making them come pick it up at the post office), but will probably not change things. (“Woman who tripped on mail can sue”, AP/CNN, Feb. 22; Pete Williams, MSNBC Daily Nightly, Feb. 22)(Dolan v. USPS, main opinion/dissent, both PDF).

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R.I. jury finds former lead paint makers liable

“A Rhode Island jury today found Sherwin-Williams Co. and two other paintmakers guilty of creating a ‘public nuisance’ by manufacturing lead paint after it was found to be dangerous.” If upheld, the verdict will force the companies to contribute millions toward abatement of existing paint; a judge will also consider demands for punitive damages. The ruling, the first of its kind, is also expected to encourage the filing of more suits against the industry; the cities of Chicago and Milwaukee are among those with suits in progress. (Maya R. Payne, “Jury finds against three paintmakers”, Crain’s Cleveland Business, Feb. 22; AP/Boston Globe; Reuters). Blogger Jane Genova has been covering the three-month trial from the scene.

The verdict is an unfortunate confirmation that the “tobacco model” of mass tort litigation remains alive and well. In particular, contingency-fee private counsel have once again managed to 1) dream up a novel idea for litigation based on the idea that some category of public expenditure is really blameable on long-ago sales of a product; 2) sell the idea of suing to public officials who agree to front the action, and who thus provide (along with advocacy groups) a suitably public face for the lawsuit; and 3) manage to get liability attributed retroactively to businesses whose actions decades ago were plainly lawful under the standards of that time. In the Rhode Island case, in particular, the outcome represents the culmination of years of careful groundwork by South Carolina-based asbestos/tobacco powerhouse plaintiff’s firm Motley Rice (earlier Ness Motley), which some years embarked on a strategy of making itself a behind-the-scenes kingmaker in Rhode Island — one of America’s most politically insider-ish, as well as smallest, states. For details on how the Motley firm quickly established itself the number one donor in Rhode Island politics, with special generosity toward officials who could be helpful to its idea for a lead paint suit, see Jun. 7, 2001.

For more coverage of the Rhode Island suit, see Jun. 8-10, 2001; Jul. 2, Nov. 1 and Nov. 16, 2005; and various other entries.

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Thumbnail images held potentially infringing

Clinton appointee Judge A. Howard Matz in California has issued a questionable and potentially disastrous result in copyright litigation, holding that Google’s thumbnail indexing of images from third-party infringers of pornographer Perfect 10’s copyright is likely to infringe and can thus be preliminarily enjoined pending trial. “The court is building a standard that only a lawyer could love,” said Laurence Pulgram, a partner at Fenwick & West in San Francisco, who also questioned the court’s disregard for precedent. (Xenia P. Kobylarz (!), “Perfect 10 Racks Up Preliminary Injunction Against Google”, The Recorder, Feb. 22). Earlier coverage: Nov. 24, 2004.

Update: See also San Jose Mercury News (via Lattman).

Another update: And, via Bashman, here’s the opinion.

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Avoiding Lawsuits

Like the in-laws visiting for the holidays, I don’t want to overstay my welcome at Overlawyered, so Wednesday will be my last day, at least for this stint. Before I go, I wanted to leave you with a few lessons I have learned about avoiding lawsuits in a customer contact business. Please note, I am not an attorney, and this is not legal advice, it’s just what we do. Your mileage may vary.

1. Pay your attorney before a problem arises. My attorneys have been real allies in helping me review our procedures, create releases, craft an employee manual, etc.

2. Treat your employees well. Unhappy employees create internal problems, and are more likely to mistreat customers.

3. We always make an employee’s first 60-90 days a probationary period, as indicated and accepted by them in their job offer letter. We have found it easier to treat the employee truly as at-will in that period. Some argue that using the probationary period makes it harder to fire someone after the period, but since we are a seasonal business and most folks only work for us for 4-6 months, this is not an issue for us. Ask your attorney about it in your situation.

4. Employees who show poor judgement in how they interact with customers will do it again in the future 99% of the time. We are very aggressive about weeding out these employees, terminating them when possible in their 60-90 day probationary period. In a seasonal business, we just don’t have time to train new behaviors.

5. When employees or customers are hurt, we train our employees to provide medical care quickly. There is absolutely no return to being cheap with first aid, no matter what or who the cause. All of our employees know how to get injured people to the emergency room fast, and key phone numbers are posted in many locations.

6. I insist that every “incident”, from injuries to confrontations with customers, be documented immediately by our employees on a company incident report. Even waiting a day will mean that critical details can be forgotten. This information is invaluable when dealing with possible claims later.

7. I always investigate personally any complaint that a customer or employee brings to me. I will document my findings for the file, and always provide a written response to the customer. If I think they are considering a claim, I always write the letter assuming that it will be read by an attorney considering taking on their case on a contingency basis. Remember that attorneys have to decide if a client is worth their time — this is a chance to convince them it is not.

8. Get a good business insurance agent. If your agent says “no, I can’t get your coverage for that” then you probably have the wrong agent. I never knew how mediocre my previous agents were until I had a great one. Also, insurance companies have a lot of good free resources to do safety and risk inspections.

9. Invest the time in a good manual for your supervisors. Don’t think of it as a policy manual, think of it as a giant FAQ. Every time one of our managers faces an odd new situation, we assume it can happen again and publish guidance for them in the manual.

10. Don’t operate in California or Florida. Well, since we are a recreation business, we almost have to be in these states. So we just plan in advance that insurance and other costs will be higher.

Rumpole exhales

Author John Mortimer on the U.K.’s new ban on smoking in pubs: “I have now been pushed by a parliamentary majority of snivelling puritans, who seek to control every moment of our lives, to increase my consumption. …The best part of it is that governmental disapproval now adds considerably to the pleasures.” (“Snivelling Puritans make me fume”, Daily Telegraph, Feb. 16).

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California school exit exams

“If you’re passing all of your classes but you can’t pass the state’s high school exit exam–even after many tries and even though it’s based on 8th, 9th, and 10th grade skills–do you blame the school system that passed you despite your lack of knowledge or do you blame the test? A group of California parents and students have chosen the latter and are suing the state.” They’re represented by a lawyer from high-toned Morrison and Foerster, too. (A Constrained Vision, Feb. 20; Debra Saunders, “Passing the High School Test”, San Francisco Chronicle/RCP, Feb. 16; Ruben Navarrette Jr., “Lunacy in Our School Districts”, San Diego Union-Tribune/RCP, Feb. 19). Update May 15: judge rules in favor of plaintiffs.

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