Thanks to MedPundit for her prolific and excellent posts over the past week. Her regular blogging, which includes a steady supply of items about malpractice and other medico-legal topics, can be found here, and should be on your regular round of blog stops if you are even slightly interested in matters medical.
Archive for the ‘Uncategorized’ Category
Stella Liebeck and McDonald’s coffee revisited II
More discussion of the McDonald’s coffee case, the blogosphere discussion of it, and why it’s relevant today on our sister blog, Point of Law (Aug. 4).
One additional point merits discussion: “PG” of Blog de Novo (Aug. 3) makes the oft-heard argument that it was alright for Stella Liebeck to sue McDonald’s for millions because she first tried to settle for her medical expenses. I recently had an experience that shows why this thinking is fallacious.
A tomb with a ($150M) view (of the Major Deegan)
Real estate tycoon Leona Helmsley is suing Woodlawn Cemetery in the Bronx for $150 million in compensation, including $100 million for “severe anguish and emotional distress”, because she says her late husband Harry’s family mausoleum has lost the views, serenity and solitude it once had. “Mrs. Helmsley’s complaint, first reported Monday in The New York Post, is that the ‘perpetual beauty’ and ‘peaceful solitude’ of the spot have been destroyed by the latest of many community mausoleums to be built at Woodlawn. But the view Mrs. Helmsley describes as forever lost is bleak: the access ramps to the Major Deegan Expressway, a traffic light at Jerome Avenue and 233rd Street, and locked gates where the cemetery’s grand entrance once was.” Woodlawn’s president says he has been unable to find any precedent for a lawsuit complaining of loss of views from a mausoleum. (Jane Gross, “Tomb Trouble: Nimby Strikes at Woodlawn”, New York Times, Jul. 29; “NY property tycoon sues cemetery”, BBC News, Jul. 27).
Stella Liebeck and McDonald’s coffee revisited
A sad example of how the Democratic party has become the political wing of the plaintiffs’ bar is a recent post in the Daily Kos defending John Edwards by lionizing the result in the infamous McDonald’s coffee case, where a jury awarded Stella Liebeck $2.9 million for spilling a 49-cent coffee on herself. (Daily Kos, Aug. 1). Professor Bainbridge refutes (Aug. 1), with reference to our Dec. 10 entry. Blogger “Curmudgeonly Clerk” (Aug. 2) continues to insist that hot coffee is unreasonably dangerous, which sidesteps the question why our legislatures continue to permit it to be sold. Strangely, the Clerk is aware of and cites McMahon v. Bunn-O-Matic, a Seventh Circuit case that should’ve ended the coffee debates once and for all, but doesn’t reconcile that decision with his defense of the Liebeck case.
Meanwhile, Maxine Villegas’s sister spilled McDonald’s coffee on her, and she’s hired Liebeck’s lawyer to sue McDonald’s. (Matt Fleischer-Black, “One Lump or Two?”, American Lawyer, Jun. 4.) Though scheduled to go to trial last month, there hasn’t been additional press coverage.
Market Influence
There may be good news on the horizon for physicians in John Edwards’ home state. No, the state didn’t pass sweeping tort reform. It’s market magic:
Unlike the last survey, business-related cases didn’t just lead the top of the list. In a dramatic change from past years, they made up more than a quarter of all the entries for 2003, with 14. That’s more than double the number of business recoveries reported to Lawyers Weekly in 2002 ? and matches the tallies in medical malpractice and auto negligence.
Another telling statistic: In 2003, six business-related cases resulted in recoveries of $7 million or more, according to the survey. There were only three reported in that range in 2002 ? and only one in 2001. In contrast, no contested personal injury recoveries reached $7 million in 2003.
Why is that good news for physicians and what does it have to do with the free market? It means that lawyers will be expending their energies on business cases instead of malpractice cases. This may not be good for the economy of North Carolina, but it would give doctor’s and hospitals a reprieve. As one lucky winner, I mean attorney, puts it:
“In my view, in terms of making a living, business misconduct cases in today’s environment are becoming almost as profitable as personal injury, where you traditionally have had more high-end verdicts and settlements,” said Hunt.
And I thought they were in this to champion the little guy.
Click here to see a list of the top 55 verdicts for 2003 in North Carolina, none of which were under one million dollars.
Beware the Indian-artifacts police
A 1990 federal law restricts commercial trade in American Indian archaelogical remains and so-called sacred objects, and pressures public institutions to hand over (“repatriate”) such holdings to tribes. According to its critics, the law has begun to put a serious crimp in archaelogical investigation of the North American continent. It also menaces legitimate dealers of artifacts with prison terms over vaguely defined offenses, all while providing the adherents of certain religious tenets (those claimed to be traditional native beliefs) with powerful legal muscle not available to those of us who may hold other (or no) religious beliefs. (Steven Vincent, “Grave Injustice”, Reason, Jul.). For the “Kennewick Man” controversy, the most famous thus far to arise under the law, see Feb. 14 and links from there. For cases with sometimes-overlapping effect arising from a federal law which restricts trade in artifacts whose components include the feathers of eagles and other protected birds, see Sept. 11-12, 1999.
Madison County Fair
Rural Madison County, Illinois has a widespread reputation as a lucrative trial venue, even for people who don’t live or work there. The state legislature has not been helpful in pushing tort reform, so tort reform groups are taking their cause straight to the people – at the fair. Now that’s a populist venue if ever there was one.
This Land is Our Land, but the Song Isn’t
JibJab, creator of that popular This Land Is Your Land political parody has been warned that they are infringing on Woody Guthrie’s copyright (see letter here.) As the Wired story notes, this action is the antithesis of the spirit of Woody Guthrie, who had this to say about copyrights:
This song is copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.
UPDATE: Much discussion of the issue can be found at The Volokh Conspiracy. Just keep scrolling.
A 1 in 1.09 quintillion chance
A North Carolina woman sued a hospital for failing to correctly diagnose her husband’s cancer. Except they did diagnose it correctly:
…Linda Brown alleged that Charlotte Regional contaminated tissue samples during a lung biopsy in 2000 which resulted in the wrong cancer diagnosis of small cell lung cancer. … Brown’s attorneys argued that due to hospital technicians not wearing gloves or due to unsanitary conditions, Gerald Brown’s tissue was contaminated with someone else’s DNA.
The defense argued that’s nearly impossible because someone would have had to actually have lung tissue containing the cancer cells on his fingertips while when he handled the sample.
The hospital’s attorneys argued during opening statements last week that the chances of Gerald Brown’s DNA being contaminated was 1 in 1.09 quintillion. In fact, the chances of that happening may be even greater since that one-in-a-quintillion person would have to be in Punta Gorda, inside Charlotte Regional, having a lung biopsy at the same time and have small cell lung cancer. But no one else in the hospital was undergoing a lung biopsy at the same time as Gerald Brown on March 22, 2000.
The jury ruled in favor of the hospital, but the case took four years and several hundreds of thousands of dollars to defend. That’s OK with Mrs. Brown, because now she knows “the truth.” Apparently, neither she nor her lawyers, thought of having an autopsy to discover the truth. But then, autopsies cost money, with nary a chance of making money. Not even a 1 in 1.09 quintillion chance. (More: letter to the editor Aug. 16).
The “litigatory equivalent of road rage”
Regarding a dispute between a townhouse owner and his homeowners’ association: “Their quarrel, which began over a basketball hoop and a parking space, has resulted in at least four separate actions, with an intimation of more to come. At a loss as to why so little has generated so much conflict, we can only surmise that we are in the middle of what may be the litigatory equivalent of road rage. The number of actions, the sheer ferocity with which they have been pursued, and the inconsequential nature of what has been sought offer us little hope that we are wrong in this assessment.” — Maryland Court of Special Appeals in Campbell v. Lake Hallowell Homeowner’s Association (PDF) (via Dave Stratton, Insurance Defense Blog, Jul. 19).