Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2007

Duke recriminations

North Carolina attorney general Roy Cooper deserves credit for making it clear to all that the players were innocent and not merely unprosecutable (Stuart Taylor, Jr., “An unbelievable day”, Newsweek, Apr. 12 (web-only)). Cooper may not deserve so much credit for sparing the false accuser any public legal consequences (John Podhoretz, “Let the liar be named and shamed”, New York Post, Apr. 12). Durham DA Mike Nifong is in richly deserved trouble, of course but it would be wrong to let the press off the hook for its many sins in covering the case (Howard Kurtz, “Media Miscarriage”, Washington Post, Apr. 12; K.C. Johnson, Apr. 12 (on the New York Times’ reporting; check other entries at his blog for the sins of the Durham Herald-Sun, Newsday, etc.)). And let’s not forget the Duke faculty, or at least large portions of it (Vince Carroll, Rocky Mountain News, Apr. 12).

See these links for our extensive earlier coverage of the case.

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My bad

One of the common minor medical malpractice “tort reforms” that have been proposed in recent years is the “apology law.” That’s the law which permits doctors to apologize to patients for bad outcomes without having those apologies thrown back in their face at trial. (Reasonable, if relatively trivial.)Rhode Island is now looking at joining the 15 or so states that have enacted such apology laws, and over at the New York Personal Injury Law Blog and crossposted at Bizarro-Overlawyered, plaintiff’s attorney Eric Turkewitz endorses the bill, saying:

I’ve always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Now, the practical implication of that for doctors is clear: doctors should apologize. But he doesn’t seem to reflect on the implication of that for lawyers. If med-mal cases are brought based on anger over bad bedside manner rather than wrongdoing, then our med-mal system will punish bad bedside manner rather than wrongdoing.

In any case, Turkewitz mocks an insurance company which advises doctors who apologize — even if those apologies are protected — to apologize for the outcome but not to admit error, claiming that this sensible advice “encourages more of the same thing that has gotten docs into trouble in the past.” But Turkewitz doesn’t mention that even this extremely modest reform is too much for some trial lawyers. As quoted in the same article he cites:

Providence lawyer Steven Minicucci, who handles malpractice suits, said displays of compassion are rarely useful in building such cases. But an apology and an admission of error could be key evidence. He opposes the Rhode Island legislation.

“I like to call it the `I’m-sorry-I-killed-your-mother'” bill, Minicucci said. “If a doctor comes out and says something like that, he shouldn’t be able to immunize himself against statements like that by couching it in an apology.”

You’ve got to love that “rarely,” in “displays of compassion are rarely useful in building such cases.” Rarely, but hey, sometimes a trial lawyer can turn compassion against the doctor. And we wouldn’t want to stop that.

Speaking of apologizing (and updating an earlier story), I’m pretty sure that Mike Nifong’s apology to the Duke lacrosse players (“To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.”) is not going to cut it.

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Implausible claims in Texas

Under Tennessee v. Lane, the ADA does not apply to states unless the states waive their sovereign immunity and permit the federal cases to proceed in state court. Attorney General Greg Abbott of Texas (coincidentally enough wheelchair-bound himself), has exercised that sovereign immunity in ADA suits, and there is a movement for the legislature to repeal the immunity. I think the voters of a state can rationally decide whether they want to allow the disabled residents of the state to be able to sue the state and its agencies for alleged discrimination against the disabled; it’s a conscious decision whether the value of that access is worth the expense to taxpayers. (Of course, the ADA is poorly drafted enough that the consequences can be silly from time to time, but that’s a different issue.)

But it doesn’t seem sporting in arguing for the change to claim that such a waiver will have “no fiscal impact” on the state, as Dennis Borel and Bruce Todd argue in an Austin American-Statesman op-ed seeking a waiver in Texas. Even one suit would cost the state money that it could spend on disciplining lawyers or speeding up the licensing of doctors wishing to practice in Texas. If there’s no money to be had from state coffers by making suits available, why the need to make suits available? One would have more respect for proponents if they were forthright in telling voters how much in taxpayer dollars they want to spend annually to achieve their goals. And since Texas does have sovereign immunity from the ADA, it is under no obligation to make a full waiver: it could choose to create some rights to suit, but not others, and thus avoid the worst abuses of the Act, a possibility that does not even seem to be under consideration.

Separately in the implausible claims department: a page on the DOJ site, much repeated elsewhere, claims that there have been only 650 ADA suits in five years. Given that there are filing mills that come close to hitting that total by themselves, this seems extraordinarily unlikely.

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Sued if you do, sued if you don’t.

Hospital X was grossly — if not criminally — negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don’t let them try to claim they didn’t foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he “became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!” Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client’s operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That’s the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas’s complaint was that since he couldn’t find anybody to supervise him, the hospital’s condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient’s life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn’t possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)

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“Where there’s blame, there’s a claim”

Obituaries detail the life and fast times of Mark Langford, the British entrepreneur who founded The Accident Group and rode it to a fortune advertising for “no-win, no-fee” injury claimants, becoming closely identified with the U.K.’s emergent U.S.-style “compensation culture”, before the group collapsed in ignominy four years ago. When his company found itself unable to pay its bills, Langford famously sacked 2,500 employees via text message; “While thousands were left without a penny following TAG’s collapse, Langford and his wife, a fellow director of the firm, were not. As staff began ransacking the company’s offices in Manchester, the couple headed for the Spanish sun.” (“Mark Langford”, The Telegraph, Apr. 11; David Brown & Jon Clarke, “Fugitive boss who sacked his staff by text is killed in Costa car crash”, Times Online, Apr. 11).

Perhaps the most successful instigator of injury litigation in his nation’s history, Langford appeared not to have fully internalized in his own conduct the tort system’s norms about avoidance of needlessly unsafe conduct:

He was at the wheel of his red Ferrari 355 F1 Spider three years ago [i.e., circa 2000] when he hit a 73-year-old war veteran who was crossing the road. The impact that killed Bill Thornley hurled him 15ft into the air and ripped his clothes off, a jury was told at Manchester crown court. However, they cleared Langford of causing death by dangerous driving and convicted him of the lesser offence of careless driving. He was fined £1,000 but retained his driving licence.

Langford, who criticised the dead man in court for trying to cross a busy, wet road in twilight, insisted he was abiding by the 40mph limit, contradicting witnesses who claimed he was doing 55mph. Some jury members, unaware that he had a conviction for drink-driving, covered their faces with their hands on learning he had served a 22-month ban and recovered his licence only six months before the fatal crash.

(“Profile: Mark Langford”, Times Online, Jun. 1, 2003). Our earlier coverage appeared Aug. 5, 2003.

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Playing “Redneck Woman” on the jukebox…

…resulted in a pro se suit from a black customer alleging that the airing of the popular country song constituted racial discrimination. The Fifth Circuit upheld a lower court’s decision to dismiss the suit against the Wichita, Kansas restaurant. (Brackens v. Texas Roadhouse in Wichita (PDF); Mississippi Law Blog, Feb. 6).

Incidentally, even before posting this item, this website already provides one of the very few current search hits on “Redneck Woman” + “Fifth Circuit”.

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Mark A. McLeod v. Mt. Sinai Medical Center briefing

We’ve previously reported on this case and the underlying Hollins v. Jordan $30 million trial verdict (in 2004 on Nov. 20, Oct. 11, and Aug. 31) blaming an obstetrician and hospital for microcephaly in a four-pound, five-ounce birth. The case is scheduled to be heard by the Ohio Supreme Court May 23, and the more recent briefing is on line; the Dr. Jordan merits brief is especially interesting. Of note, and not previously mentioned:

  • Plaintiffs attorney Geoffrey Fieger has already twice asked the entire Ohio Supreme Court to recuse itself.

  • Plaintiffs are seeking $50 million in prejudgment interest.

  • The claim that the caesarean was delayed is entirely bogus; plaintiffs’ experts deliberately confused the “emergency” (i.e., non-scheduled) caesarean with a “crash” caesarean.

  • Plaintiffs sandbagged the damages claim by claiming before trial they would only seek $4 million, and then changing the estimates on the stand by making hypothetical assumptions not supported by any expert evidence.

  • Fieger’s opening argument regularly made references to evidence excluded in limine.

  • Fieger had an anesthesiologist opine on neurological matters.

  • Fieger’s prejudicial conduct at trial, including race-, religion-, and class-baiting, has to be read to be believed. How there wasn’t a mistrial or a revocation of pro hac vice status is jaw-dropping.

  • Counsel of record for two of the co-defendants is Drug and Device Law co-blogger Mark Herrmann.

Again, the lengthy dissent in the appellate court is worth reading.

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What do John Edward and John Edwards have in common?

John Edward is the quack who made a television career claiming to channel the dead. John Edwards is the trial lawyer presidential candidate who didn’t go quite that far when delivering a closing argument, restricting himself merely to a channeling a mute victim of cerebral palsy that he successfully blamed on a doctor. As the New York Times reported:

“She speaks to you through me,” the lawyer went on in his closing argument. “And I have to tell you right now — I didn’t plan to talk about this — right now I feel her. I feel her presence. She’s inside me, and she’s talking to you.”

In other jurisdictions, such unfairly prejudicial theatrics asking the jury to decide on passion are grounds for mistrial. (Well, they’re supposed to be, anyway.)

We’ve had lots of coverage of Edwards’s trial career: Jan. 12; Oct. 20, 2005; Aug. 17, 2004; Jul. 28, 2004; Feb. 2, 2004. And we’ve noted others’ comments, too: Jan. 5; Jul. 16, 2004; Feb. 26, 2004; Jan. 31, 2004; Sep. 16, 2003.

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