John Struna says he spent $125,000 a year on Ohio Lottery tickets for years without ever reading the rules printed on each ticket and on the state’s web site, and was upset to learn that his October 25, 2001 jackpot paid only $981,000 rather than the $5.2 million he expected. His lawsuit against the lottery was dismissed, but a jury held Harry Singh, the owner of the Convenient Food Mart on East 200th Street in Cleveland, responsible for $1.3 million in damages. Struna’s lawyer, Andrew “Kabat said Thursday that he hopes the civil judgment inspires the state lottery to be more aggressive about informing players of the rules.” I’m sure that makes Singh feel better to know that he’s been potentially bankrupted for such a noble cause. (Mark Naymik, “Lottery player wins again, this time in court”, Cleveland Plain Dealer, Mar. 25; AP, Mar. 25).
“The president of the United Transportation Union pleaded guilty to a racketeering conspiracy on Thursday, admitting that he solicited bribes from lawyers trying to get access to lucrative legal work for rail workers.” In a scheme that dated back to 1995, Byron Boyd and three other officials of the Cleveland-based union “solicited cash from lawyers who wished to represent injured rail workers in personal injury lawsuits against rail employers. Those are potentially very lucrative suits since there is no limit to legal damages under federal law. … The men got at least $477,000 in cash”. (“Transportation Union Chief Admits to Racketeering”, Reuters, Mar. 12). “U.S. Attorney Michael Shelby said a scheme like the one Boyd was involved in is not uncommon in labor unions and the federal government will continue to investigate such schemes. … The case was handled out of Texas because five of the lawyers that paid money as part of the scheme were from the Houston area and they cooperated with prosecutors, Shelby said.” (Juan Lozano, “Union president pleads guilty to labor racketeering”, AP/Fort Worth Star-Telegram, Mar. 11). Railway workers are covered by the Federal Employers Liability Act (FELA), which affords more lucrative recoveries than does workers’ compensation law; they have also been major filers of asbestos claims.
Trial lawyers are finding new ways to transfer money from the pockets of doctors to attorneys. An Ohio jury voted 6-2 that Cleveland doctor Franklin Price was liable for $3.5 million because he didn’t do enough to help Lawrence Smith lose weight and stop smoking, and thus avoid a fatal heart attack. (Tanya Albert, “Jury says doctor didn’t do enough to help obese smoker”, American Medical News, May 12, 2003). In Florida, Miriam Kamin is about to go to trial in a lawsuit against Baptist Hospital of Miami not because they misperformed her pancreatic surgery, but because she feels that the hospital should have referred her to a hospital that performs the operation more often. And in Ohio and Texas, plaintiffs are trying to avoid medical malpractice caps by restating the claims as “corporate negligence.” (Tanya Albert, American Medical News, Feb. 9).
In last week’s issue of the Journal of the American Medical Association ($ access), Baltimore physician David Merenstein writes about a malpractice case which resulted in a $1 million verdict against the residency program in which he was working (though he himself was let off the hook for liability) over his failure to insist on a PSA test in a middle-aged male later diagnosed with advanced prostate cancer. Central to the plaintiff’s attorney’s strategy was to put on trial the mode of medical practice known as “evidence-based medicine”. Medical blogger Ross Silverman at “The Bloviator” (Jan. 8), who is often critical of attempts to limit malpractice litigation, nonetheless finds the result in this case “horrible” and “ridiculous”. MedRants (Jan. 8 and Jan. 9) comments, as does Medpundit Sydney Smith (Jan. 9). More: The LitiGator, from Michigan, also comments (Jan. 18)
In the same Jan. 9 post, Medpundit links to an illuminating Cleveland Plain Dealer piece (Harlan Spector, “Fleeing the malpractice crisis”, Jan. 4) about a neurologist who lost his malpractice insurance and moved out of Ohio after he was hit with six claims. Six claims sounds like a lot, and we keep hearing that “problem doctors” account for a large share of the malpractice problem; but how weak were the six claims? Well, four of the six were dismissed before he had to meet with a lawyer; in a fifth, which is pending, the plaintiff has no lawyer of record. And the sixth? That resulted in a defense verdict, and was called “frivolous” by the presiding judge, who however also said: “They paid these experts who sign affidavits, and I can’t throw the case out.” “I feel like I’m being shot at all the time,” said the defendant, Dr. Bruce Morgenstern, who moved to less litigious Colorado.
Lawyer of the week? Once-obscure Ohio attorney Sheldon Starke seemed to revel in the sudden worldwide publicity as he represented Elecia Battle in her claim to be the true winner of a $162 million lottery jackpot — until her story fell apart and she turned out to have a rap sheet. “A Cuyahoga County judge has threatened to find Starke in contempt of court after seeing Starke’s animated defense of Battle this week on television — after Starke had said he couldn’t come to court because of an injured back. And Starke can’t seem to avoid questions about how he handled Battle’s incredible claim on the Mega Millions lottery — about how he maintained his belief in Battle’s story when just about nobody else did. ‘I felt like a fool,’ said Starke, who insists he handled the case properly. ‘If there was one person that was damaged this week, it was me.'” (Scott Hiaasen and Jesse Tinsley, Cleveland Plain Dealer, Jan. 10)
Airline and theater seats, equipment in doctors’ offices, and now, inevitably, housing: “Carmen Bowen, 44, has been involved in a two-year dispute with the Cuyahoga Metropolitan Housing Authority over how much work must be done to help her move around her [Cleveland, Ohio] apartment.” Ms. Bowen weighs 772 pounds and the agency has already agreed to an extensive menu of apartment renovations that it believes go beyond what the federal ADA requires: “The modifications include removing doors and walls, installing an automatic door operator and panic device, demolishing the existing bathroom and installing a special shower, and putting in a sidewalk to the front door.” However, “Bowen filed a discrimination complaint, saying the agency took too long. … In August, 22 firefighters and emergency medical technicians worked for 2 1/2 hours to move Bowen from her apartment so she could have dental work.” (“Housing agency works to accommodate 772-pound tenant”, AP/Akron Beacon Journal, Nov. 17).
Although there are plenty of outrages in the energy bill, argues Gregg Easterbrook at his New Republic weblog, one provision that is not outrageous is the waiver exempting oil companies from liability for using the gasoline additive MTBE (methyl tertiary-butyl ether) (Nov. 24). “Democrats are expressing outrage over the MTBE waiver because some enviro fundraisers see this chemical as the next one to get people really frightened over, while the tort bar has visions of big settlements dancing in its head.” But Congress mandated the use of MTBE in its 1991 Clean Air Amendments, Easterbrook says, and it is strange to punish petrochemical companies for complying with the wishes of both Republican and Democratic environmental officials. Coverage: H. Josef Hebert, “GOP lawmakers blame suits over gas additive for bill’s delay”, AP/Cleveland Plain Dealer, Nov. 24; Michael Davis, “Energy measure hinges on MTBE dispute”, Houston Chronicle, Nov. 21; “Congress Debates Gasoline Additive Liability”, AP/Fox News, Oct. 7. And this morning it is being reported that the energy bill has died for this year in the Senate, in part because of irreconcilable disputes over the MTBE waivers (Dan Morgan, “Senate Energy Bill Dead for This Year”, Washington Post, Nov. 25)
Employers who allow swearing and sexual references in the workplace could find themselves in, well, ‘blankety-blank’ trouble with the federal government. Policies prohibiting foul language and swearing were recommended by leaders of the U.S. Equal Employment Opportunity Commission?s district office in Cleveland who spoke to 150 human resources managers, union representatives, and legal aid workers at a seminar in downtown Toledo yesterday.” (Toledo Blade, Jul. 31)(via Freedom News)(& welcome Volokh/David Bernstein and Dean Esmay readers)