Overlawyered: Chronicling The High Cost Of Our Legal System

Author Archive

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.

Filed under: ,

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).

Filed under:

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.

Filed under: , , , , , , ,

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).

Filed under: ,

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.

Filed under: ,

A vaccine database, contaminated

The federal government has established something called a Vaccine Adverse Event Reporting System to collect reports of possible side effects related to immunizations. Sounds like a useful tool for epidemiological study, right? Except that, it seems,

anyone can submit a report to it, and no one actually verifies the accuracy of the report. Indeed, James Laidler once tested the system by submitting a report that the influenza virus had turned him into The Incredible Hulk. The report was accepted and duly entered into the database.

A more serious problem with the self-submitted nature of the data is that it provides a way for vaccine scares to self-amplify: lawyers pressing compensation claims make a point of submitting their clients’ case histories to the VAERS, and before long — what do you know? — the database is showing a worrying rise in reported side effect incidents, which itself feeds the litigation. Now a study in Pediatrics traces the ways in which litigation-driven reporting has distorted the contents of the VAERS database, especially as regards the purported association of the preservative thimerosal with childhood autism. Respectful Insolence explains (Feb. 6 at old site, more recently blogging at ScienceBlogs)(via MedPundit) and also ties the story in to the disgraceful performance last year in Rolling Stone by celebrity demagogue Robert F. Kennedy, Jr. (Jun. 20 and Jun. 26, 2005). More: pediatrician Flea also weighs in (Feb. 22).

Filed under: ,

“Feds say Pellicano taped client talks”

Well, this should be entertaining: “In a twist that could have many in Hollywood on edge, federal prosecutors revealed Thursday that they have taped conversations between indicted sleuth-to-the-stars Anthony Pellicano and clients who hired him to dig up dirt on rivals.” (Greg Risling, AP/Macon Telegraph, Feb. 16). More: Feb. 16, Feb. 7, etc. And the San Francisco-based Recorder has much more about this week’s indictment of a prominent Hollywood attorney in the unfolding scandal (Kellie Schmitt, “Attorney Terry Christensen Indicted in Case Involving Hollywood PI Pellicano”, Feb. 17).

Filed under: ,