Author Archive

When Clinton and Obama agreed

Before they officially became presidential candidates, the Illinois and New York senators co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled “Making Patient Safety the Centerpiece of Medical Liability Reform.” (See: http://content.nejm.org/cgi/content/full/354/21/2205)

They sympathized with physicians over escalating insurance costs and condemned the current tort system for creating an “intimidating liability environment.” Still, Clinton and Obama said, it’s more important to focus on how to improve patient safety than “areas of intense disagreement,” such as caps on financial awards to patients.

They introduced legislation, which died in committee in 2006, to provide money and assistance to physicians, hospitals, insurers, and health care systems to start programs for disclosure of medical errors and compensation to patients. The bill would have created an office of patient safety and health care quality to establish a database to track incidents of malpractice and fund research into guidelines to prevent future injuries.

“Physicians would be given certain protections from liability … in order to promote a safe environment for disclosure. … This legislation would provide doctors and patients with an opportunity to find solutions outside the courtroom. In return, [hospitals, insurers, and others] would be required to use savings achieved by reducing legal defense costs to reduce liability insurance premiums and to foster patient-safety initiatives.”

(Mark Crane, MedPageToday, Jan. 7). More: see Ted’s December post at PoL.

High cost of health privacy laws, cont’d

More HIPAA madness? On Wednesday, in a crime that cast a chill through the mental health community, a Manhattan therapist was brutally slaughtered in her office by a man whose actions seemed consistent with those of a current or former patient with a grudge. The assailant escaped on foot, and although his image had been captured on surveillance tape, police were nowhere near beginning to know where to start looking for him: “Because of privacy laws, police hadn’t been able to access patient records as of late yesterday, sources said.” (New York Post, Feb. 14)(via Bader). On medical privacy laws and the Virginia Tech rampage of Seung Hui Cho, see Jun. 16, 2007.

More: Commenter Supremacy Claus says not to blame HIPAA, which has an exemption for police reports.

Friday morning sequel: This morning’s New York Post sticks with the original story and fleshes out the HIPAA role somewhat:

The hunt for the savage beast who butchered an Upper East Side therapist has hit a roadblock – because detectives can’t access her patients’ medical records under federal privacy laws, The Post has learned.

Police believe the meat-cleaver-wielding psycho who killed Kathryn Faughey on Tuesday night inside her office on East 79th Street could be the doctor’s patient – and need access to her records to identify him.

But police sources said because of the Health Insurance Portability and Accountability Act, signed by President Bill Clinton in 1996, investigators are having a hard time gaining access to those records.

“A case like this gets complicated because of medical privacy protections,” a source close to the investigation told The Post yesterday.

The federal law states that doctors, hospitals and health-insurance companies must protect the privacy of patients – even in a murder investigation – and that only through the use of subpoenas can authorities hope to obtain such information.

Police sources said investigators have applied for a subpoena, but have yet to receive it. Even if the subpoena is issued, patients can sue to keep their records private. …

[D]etectives have tried to get around the law by tracking down patients through sign-in sheets at the building’s front desk and through surveillance cameras in the lobby, sources said.

(Murray Weiss, Jamie Schram and Clemente Lisi, “Vexed by ‘Slay File’ Madness”, New York Post, Feb. 15). My Times (U.K.) article on the problems posed by health privacy laws is here.

February 14 roundup

  • Examiner newspaper begins series on how Milberg Weiss used nonprofit foundation to project its clout among judges, academics, influentials [Institute for Law & Economic Policy, three-parter]
  • Judge Canute, or just reporter’s awkward wording? Australian jurist with great eyeglasses bans screening of TV drama in state of Victoria; “Under the order, all internet material relating to the series is also banned.” [Herald Sun] (More explanation on the court order: The Australian).
  • Times Square’s Naked Cowboy sues over M & M candy ad playing off his image [NY Post]
  • Bite mark testimony makes another chapter in catalogue of dubious prosecutorial forensics [Folo’s NMC on two Mississippi Innocence Project cases]
  • Update: Pennsylvania court upholds disputed fees in Kia-brake class action [Legal Intelligencer; earlier]
  • Best not take McCain too literally when he says he’d demand that judicial nominees have a proven record on Constitutional interpretation [Beldar]
  • Expert witness coaching …. by the Royal Society for the Prevention of Cruelty to Animals? [Nordberg; earlier]
  • For some reason many Boston residents feel menaced by city’s plan for police to go door to door asking “voluntary,” “friendly” permission to search premises for guns [Globe]
  • Lots and lots of publications print Mohammed cartoon in solidarity with mohammed_cartoon_bomb.jpg Danish cartoonist and assassination-plot target Kurt Westergaard [CNN; Malkin]
  • Calgary Muslim leader withdraws official complaint against Ezra Levant over his publication of Mohammed cartoons [National Post; earlier]
  • Steyn, relatedly: critics dragging my book before Canadian tribunals wish not to “start a debate”, but to cut one off [National Post]

Scruggs: I’m the real victim here

The beleaguered tort tycoon is now seeking to have the federal indictment dismissed on grounds of “outrageous government misconduct”. Roger Parloff at Fortune Legal Pad explains how Scruggs’s attorneys are evoking the atmospherics of an entrapment defense without actually going quite so far as to assert that defense, which would mean (among other things) opening the door for prosecutors to introduce evidence of other similar but uncharged bad acts by Scruggs (Feb. 12). See also White Collar Crime Prof and NMC at Folo. And the Scruggs camp’s motions to suppress wiretap evidence has resulted in the release of a slew of transcripts of taped conversations among the principals, often sliced and excerpted in nonobvious ways, highlights of which appear at Folo here (“you need it pretty soon?”), here (Tim Balducci: “you always gotta have a slush fund” and “This ain’t my first rodeo with Scruggs”), here (P.L. Blake told by Patterson of “pretty good problem that I had solved”; see also Yall) and here (appearing to omit Balducci’s famous “bodies buried” line). For those sorting out Balducci’s colorful figures of speech relating to food, by the way, his reference to “bushels of sweet potatoes” that he needs to get “where I can get em . . . uh . . . over to him” is explained at the WSJ law blog here, while his expressed wish to “lay the corn on the ground” for Judge Lackey is here at Folo. More: Alan Lange, YallPolitics.

Coaching medical witnesses

An instruction sheet for doctors providing defense-side “independent” medical exams in injury cases reads in part as follows:

# Point out whatever findings or claims are not related [to the sued-over incident]. Otherwise be silent on causal relationship.

# If prognosis appears good, then state that – otherwise be silent

# If you can state that plaintiff can participate in all normal activities, do so. If not, be silent

Eric Turkewitz, who brings this story to public attention (Feb. 12), wonders what ethical questions might be posed for both lawyers and doctors when expert witnesses are coached in this way to give partial and incomplete (to say no more) testimony. I don’t know what New York legal and medical authorities would do, but in the mother of all witness-coaching scandals in recent years — the inadvertent release of Baron & Budd’s “Preparing for Your Deposition” memo in asbestos litigation in Texas — nothing at all wound up being done by established authorities to discipline or punish the plaintiff’s lawyers involved. In fact, even more incredible, Baron & Budd succeeded in hiring more than one well-known academic ethics specialist to sign affidavits attesting that the coaching practices were in no way objectionable — details here and here (see pp. 161 et seq. of Brickman’s Pepperdine article). So if Integrated Risk Services, Inc., of Long Island, New York, which bills itself suggestively as a firm providing “Attorney Managed Independent Medical Consultation Services”, finds itself in hot water, perhaps it should give Prof. Silver in Austin a ring.

P.S. Jane Genova at Law and More doubts it works well before juries — though of course persuasiveness to a jury might not be the only objective for those who engage in coaching.

Lost laptop = $54 million?

Bob Sullivan, MSNBC “Red Tape”, Feb. 12:

How much compensation does a consumer deserve for the loss of a laptop computer loaded with personal information? Raelyn Campbell figures it’s $54 million — if you throw in a little extra for lost time and frustration.

Six months after bringing a damaged laptop computer into a Best Buy electronics store for repairs, and three months after the firm admitted losing it, Campbell filed the whopper of a lawsuit recently in Washington, D.C., Superior Court….

Scruggs: blogs deny me fair local trial

In a motion to change venue, the famed tort lawyer’s defense attorneys complain about Mississippi-focused “web logs (blogs) that report, in excruciating detail, every event in the prosecution and defense of the Scruggs criminal case” and related proceedings (Folo, Feb. 12). Does this mean we nationally-focused blogs don’t count as excruciating?

P.S. Commenter “OBQuiet” adds, “Odd that his own frequent comments and leaks to the press didn’t deny his opponents a fair trial. How could that be?”