Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘hospitals’

Damned If You Do Department: Campus Suicides

We’ve previously noted that colleges, out of fear from liability over student suicides, have been taking extreme steps to preempt the problem by requiring medical leaves of absence. George Washington University discovered that avoiding suits from Scylla doesn’t mean that Charybdis won’t sue: Jordan Nott has sued the school after being barred from campus after seeking hospitalization for suicidal thoughts. Liability reform is clearly needed: either schools aren’t responsible for student suicides, or they aren’t responsible for the steps they take to prevent such suicides. (In the famous Elizabeth Shin/MIT case, the parties recently settled after a court ruling expanding schools’ liability in suicide cases, including the possible liability of administrators without mental health credentials.)

Amanda Schaffer, writing in Slate, argues for a middle ground—a program based on one at the University of Illinois intervening in the lives of suicidal students without kicking them off campus. But Schaffer doesn’t recognize that the middle ground doesn’t resolve liability issues, including hindsight-based lawsuits for the cases where the middle ground isn’t successful; even the Illinois program has reduced suicides by only half. Educational reform can’t happen without legal reform.

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Blood-alcohol levels? Why bring those up?

“Margaret Petraski was legally drunk when a Cook County sheriff’s squad car raced through an intersection and slammed into her vehicle, authorities said. …Late Tuesday, a Cook County jury decided Petraski should receive $26.8 million for the injuries she endured in the 2001 crash — believed to be the biggest verdict of its kind.

“But the jurors who delivered Tuesday night’s verdict never heard about the 0.11 blood-alcohol level hospital officials say Petraski registered after the Memorial Day accident. A driver is considered drunk if the blood-alcohol level is 0.08 or greater.” Judge Richard Elrod* ruled that Petraski’s blood-alcohol sample wasn’t reliable enough to be admitted, because it was taken from a dried sample, and Petraski’s lawyers further argued that no expert had given testimony linking her alcohol intake to the accident, which occurred when a police officer sped through a red light in response to a non-emergency call. However, even without being told about Petraski’s alcohol level, jurors declared her 25 percent to blame for the crash, because she “misjudged the turn and should have anticipated the officer was going fast”. (Steve Patterson, “$26.8 million for victim in cop collision”, Chicago Sun-Times, May 25).

* Bonus trivia point for law buffs: Judge Elrod is the same Elrod who figures in the heading of Elrod v. Burns, a famous U.S. Supreme Court case on the Constitutional status of political patronage.

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Safety mask litigation

Today’s W$J has an editorial about the ill consequences of the trend in recent years for lawyers prosecuting asbestos and silicosis cases to add makers of commonly used industrial masks and respirators as defendants in their suits:

The Coalition for Breathing Safety, an industry group, reports that between 2000 and 2004 plaintiffs attorneys filed more than 326,000 claims against its five members. Some of these are asbestos-related, although the recent deluge has been all silicosis. One manufacturer (which prefers not to be named lest it become a bigger target) says that prior to 2002 it faced about 200 silicosis claims a year. In 2003-4, it got hit with 29,000….The industry coalition estimates its members have spent the equivalent of 90% of their 2004 net income fighting suits in recent years.

The suits have fared poorly — none of the respirator makers have lost a case in court — but the making of industrial respirators and masks is a low-margin line of business, and companies that invest heavily in the business may simply be buying themselves legal risk. And now comes the scare over avian flu:

Respirator manufacturers are still going strong overseas, but the U.S. could find itself unable to purchase these products in a crisis. Worried about a possible flu pandemic, many governments are snapping up masks; France is acquiring 685 million. In previous disease scares (say, China and SARS), countries have blocked mask exports. Local U.S. governments and hospitals are already having a hard time finding supplies.

It might be added that the plight of respirator makers is attributable in large part to the economics of what has been called the shotgun approach to defendant-naming. It is very unlikely that lawyers would have filed 300,000 claims against mask makers, or anything approaching that number, if each suit had to be filed as a freestanding matter. However, it costs very little to add 3M or another respirator defendant when a case is already been judged to be worth filing against other, more vulnerable defendants. For more on the mask litigation, see Sept. 15, 2004 and Jan. 22, 2005. More: Point of Law, May 9.

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Burden of Proof

In a nationally-publicized case, an argument over a Detroit pool game resulted in one of the players pulling a gun and shooting the other in the head; Keith Bender Jr. died of his injuries a week later. Unfortunately for the shooter, Bender was a cousin of the bar’s bouncer, Mario Etheridge, who pulled his own gun, and shot the shooter three times, allegedly in an attempt to protect his cousin’s life. The shooter, rap star “Proof,” known best for being the friend of a more famous rap star, litigation-victim Eminem, was dead on arrival at the hospital. Prosecutors have not decided whether to charge Etheridge with murder, since Michigan law allows deadly force in the defense of another. But they have charged Etheridge with a felony count of “discharging a firearm inside a building.” (Josh Grossberg, “Alleged Proof Victim Dies”, E!Online, Apr. 18).

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Praising God for supervisor’s death

A Florida federal court has ruled that it’s not protected speech under religious discrimination law, according to Lou Michels at Suits in the Workplace (Apr. 5; West v. Shands Hospital & Clinics, Inc., N.D. Fla.) From Michels’s summary of the case:

The plaintiff, who had many difficulties with her supervisor, began telling her coworkers that the supervisor’s stroke was a sign of God’s “wrath” and an indication of Divine judgment. When the supervisor died, the employee noted that God’s vengeance was served and “victory is mine” to her coworkers. Her activities caused a major disruption in the office, with some shocked employees unable to work as a result of the Plaintiff’s celebration. The plaintiff was subsequently terminated for her conduct, and sued the hospital for race and religious discrimination under Title VII.

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“Wrongful birth” roundup

Stacy Dow, of Perth, Scotland, is suing a hospital over the birth of her healthy daughter Jayde. Dow had been given an abortion at her request but unbeknownst to both her and the doctors she had been pregnant with twins, one of whom remained unharmed after the procedure. Dow told a court she suffered physical pain, distress and anxiety from the resulting pregnancy and Caesarean delivery; she also wants money for the cost of raising the girl to adulthood. (Sarah Womack, “Mother sues for birth of ‘aborted’ twin”, Telegraph, Mar. 21)(via KevinMD). The New York Times Magazine caused a stir last month with an article about a family that sued doctors over failure to recommend amniocentesis whose results would have led them to decide to abort their handicapped child (Elizabeth Weil, “A Wrongful Birth?”, Mar. 12). Ann Althouse notes an AP story reporting that there are waiting lists of parents interested in adopting Down’s Syndrome children (Mar. 10). And in the Dec. 2004 Journal of Legal Education, Gonzaga lawprof David K. DeWolf relates an extraordinary story about what happened one year when he assigned his students the wrongful-birth/wrongful-life case of Harbeson v. Parke-Davis, decided by the Washington Supreme Court in 1983 (via Childs). More on wrongful-birth suits: Mar. 4, etc.

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Nurse Cullen’s references, VI

The notorious killer nurse is back in the news, and Philip K. Howard recalls the background of his crimes:

During his 16-year nursing career, Cullen was able to move from one hospital to another – to 10 medical facilities in all – because fear of litigation prevented those hospitals from giving him a bad reference. …

Even the Pennsylvania Department of State, which oversees the state nursing board and had been warned about Cullen’s penchant for diverting medications, could not comment on his reputation. “Legally, we can’t speak about any information we receive that doesn’t result in disciplinary action,” a spokesman said….

America’s lawsuit culture has bred all kinds of bizarre changes to our society – warning labels on coffee cups, and doctors squandering billions in defensive medicine, to name just two. But the inability to be honest about how you feel about other people is one of the most destructive. Making judgments about people is the currency of a social interaction in a free society. Who tries hard? Who has good judgment? Who is a pleasure to deal with? And who acts in a way that makes your skin crawl?

(“When fear is deadly”, New York Sun, Mar. 14, reprinted at Common Good site). Earlier on Cullen: Aug. 10, 2005, Mar. 30, 2004, etc.

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Public safety wins a hand against the lawyers

Attorneys recommended against installing defibrillators in casinos for fear that the plaintiffs’ bar would use the safety measure as evidence that casinos had a duty to provide medical attention to patrons and create additional liability on the occasions the defibrillators fail, but executives overruled the lawyers. As a result,

Medical research shows that casino visitors whose hearts suddenly stop survive at higher rates even than people who happen to go into cardiac arrest while visiting a hospital. “The safest place in America to suffer sudden cardiac arrest is a casino,” says Bryan Bledsoe, a George Washington University emergency-medicine doctor and co-author of textbooks for paramedics.

Dozens of lives have been saved, and Nevada and several other states have since passed tort reform providing immunity to businesses that use defibrillators. Never fear, there’s always someone happy to ascribe a sinister motive to corporate behavior: “‘Casinos are just saving gamblers so that these people can return to casinos and lose more money,’ says David Robertson, a board member of the National Coalition Against Legalized Gambling.” (Kevin Helliker, “Beating the Odds”, Wall Street Journal, Jan. 28).

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Florida emergency rooms

They’re facing an emergency of their own:

An increasing number of Palm Beach County doctors, including many who no longer have malpractice insurance coverage, are refusing to work in the emergency room or reducing the days they are willing to work there because they fear the added liability risk.

The problem has led to delays in treatment and required some emergency patients to be transferred to — or “dumped” on — hospitals in Miami, Fort Lauderdale and as far away as Gainesville.

(Phil Galewitz, “Cures sought for ER doctor shortages”, Palm Beach Post, Dec. 11)(via KevinMD).

Also from KevinMD regarding emergency rooms, here’s some advice from a plaintiff’s lawyer on how to behave if you’re a patient using an ER. It does not go over well with Kevin’s readers.

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