- Study: Lawyers overestimate their chance of prevailing in litigation [Post, Volokh]
- Novell court victory might spell end to SCO Linux-infringement claims [GrokLaw, earlier]
- “Law firms violating copyrights?” [Mister Thorne]
- Lawyers say New Jersey money-laundering statute “uniquely criminalizes the mere possession of U.S. currency” [NJLJ]
- Ted Frank vs. critic on $28 million Sacramento nursing home award [PoL]
- Advocates push “right to development” for developing countries [Kelly, Global Governance Watch]
- For once Connecticut AG Blumenthal wants a damage award reduced [Hartford Courant, earlier at PoL]
- “Did You Know That the Real World Has an STD Waiver?” [Mystal, AtL]
Immigrant advocacy groups are filing a complaint with the New York attorney general’s office naming 16 pharmacies in Brooklyn, Queens and Long Island, claiming “that federal civil rights law and state health regulations require pharmacies to provide linguistic help” to “people who speak little or no English”. “That assistance should include interpreters at pharmacies and written translations of medication instructions, the advocates say.” The advocacy groups are New York Lawyers for the Public Interest, the New York Immigration Coalition and Make the Road New York.
It seems a creative reinterpretation of “national origin discrimination” has been going on for some time:
Health advocates have increasingly used federal civil rights law to push hospitals, nursing homes and clinics to provide language services. Language barriers to health services constitute discrimination based on national origin, they argue, a violation of federal civil rights law, which applies to hospitals because they receive federal funds through Medicare and other programs.
The latest effort aims to expand similar requirements to pharmacies.
As of the year 2000, according to one report, 138 languages were known to be spoken in the borough of Queens alone. (Anne Barnard, “Non-English Speakers Charge Bias in Prescription Labeling”, New York Times, Oct. 31).
No need to worry that greeters will be foisting cookies on returning soldiers at Bangor International Airport any more: “airport officials asked the greeters to stop serving food last month because of concern about liability and food safety. ‘We just say, “We’re sorry, we can’t give out any cookies,”‘ said Bill Knight, a World War II veteran who founded the group.” (Katie Zezima, “Airport Tries to Rein In Greeters’ Generosity Toward Troops”, New York Times, Jun. 21). Other food menaces averted: Dec. 13, 1999 (homemade pies), Jan. 29, 2001 (school cookies, country fair pies and jams), Feb. 1-3, 2002, Jan. 18 and Apr. 28, 2007 (figurines in New Orleans king cake), Apr. 15, 2004 (potluck dinners), Jul. 18, 2006 (homemade baked goods in U.K. nursing home), and Apr. 28, 2007 (candy-wrapped toy).
In West Palm Beach, Fla., a jury has held a nursing home liable for resuscitating a 92-year-old Alzheimer’s patient who had signed an advance directive indicating that she did not want to be kept alive by artificial means. And although an obstacle to even an otherwise well-founded “wrongful resuscitation” case might be the question of damages, the jury in this case awarded the estate of Madeline Neumann $150,000. (Rebecca Riddick, “Fla. Nursing Home Faulted for Ignoring End-of-Life Wishes”, Daily Business Review, Mar. 20; CourtTV coverage). An attorney for the physician defendant (who, unlike the nursing home, was found not liable in the case) said that despite do-not-resuscitate orders, medical personnel often make a judgment that a patient could potentially benefit from rescue efforts, and that had they failed to make such an effort in Mrs. Neumann’s case they might have faced legal risk: “If you call 911, you get sued,” he says. “If you don’t call, you get sued.” (Laura Parker, “In a crisis, do-not-revive requests don’t always work”, USA Today, Dec. 19, 2006).
Tampa-based Wilkes & McHugh, which has enjoyed much success filing suits against nursing homes in many states, “is now on the defense end of a suit that contends the firm knowingly violated Tennessee law regarding contingency fees.” Former client Debbie Howard, who hired the firm to sue a Memphis nursing home, says it “engaged in an unlawful scheme to collect 40 percent or 45 percent in contingency fees of settlement amounts, although Tennessee law caps fees to 33 and 1/3 percent in medical malpractice cases. The complaint says the law firm charged the higher and unlawful contingency fee to hundreds of clients in Tennessee.” In its response, the law firm says the complaint is “scurrilous” and based on falsehoods, and says Howard never appealed a Tennessee court order approving the fees. (Liz Freeman, “Tampa law firm faces contingency fees lawsuit”, Naples (Fla.) News, Jan. 14; Scott Barancik, “Firm gets a taste of dish it serves”, St. Petersburg Times, Feb. 17). For more on the law firm, see Mar. 13-14, 2001, Jul. 6, 2005, and Jun. 22, 2006, as well as Scott Barancik, “Law firm’s success against nursing homes has a price”, St. Petersburg Times, Jul. 24, 2004.
In Great Britain, a nursing home spokeswoman explains why visitors are allowed to bring in cakes and other baked goods only when they’re store-bought, not homemade. (Nanny Knows Best (U.K.), Jun. 14)(via Nobody’s Business). Other food menaces averted: Dec. 13, 1999 (homemade pies), Jan. 29, 2001 (cookies), Feb. 1-3, 2002 (figurines in New Orleans king cake), Apr. 15, 2004 (potluck dinners).
[84-year-old Loren] Richards died on March 2, 2002, at Beverly Health and Rehabilitation of Frankfort.
Richards’ daughter, Wanda Delaplane, sued the home, alleging that nurses had ignored her father’s repeated calls for help with abdominal pain. With an impacted bowel, he later died of a heart attack and a blood clot in his left lung.
The home argued that Richards had a heart attack because he had smoked for years and had severely blocked arteries. The Kentucky jury also awarded $200,000 for failing to immediately notify the family of a downward turn in Richards’ health. The Richards family had asked for over $150 million in total damages. Delaplane is an attorney with the Kentucky Attorney General’s office, so you know which government agency not to complain to when nursing home expenses go through the roof because of the liability insurance costs. (Greg Kocher, “Man’s estate to get $20 million”, Lexington Herald-Leader, May 5; Greg Kocher, “Nursing home provided proper care, attorney says in closing arguments”, Lexington Herald-Leader, May 3; Steve Lannen, “Nursing home sued for $155 million”, Lexington Herald-Leader, Mar. 23).
The family of Tranquilino Mendoza agrees that he received good care from a nursing home, until he was paired with a mentally ill roommate, who beat Mendoza with his fists and a water pitcher, the thirtieth time or so he had assaulted someone at the home. Mendoza recovered from his injuries, and died less than three years later from unrelated causes. The jury felt that his estate deserved $160 million in damages. Liability may be appropriate (it’s unclear from the press coverage what the nursing home could have done differently, since the roommate had to be placed somewhere), but the damages figure appears off by three orders of magnitude. (Sheila Hotchkin, “Jury awards $160 million in nursing home suit”, San Antonio Express-News, Feb. 23).
Walter’s entry on the Florida Senate race calls to mind that one of the ironies of the Democratic Party’s recent insistence on being the lapdog of the litigation lobby is that the latter has no special loyalty to the Democratic Party or anything that it stands for.
The most recent incarnation of this is the anti-abortion but pro-trial-lawyer Astroturf group “Center for a Just Society,” run by Ken Connor, that seeks to turn social conservatives into litigation lobby supporters by arguing that tort reform would threaten the ability of plaintiffs’ lawyers to sue RU-486 out of the market. (Connor comes from the same law firm as Jim Wilkes, who set up another Astroturf group that opposed nursing home liability reform in Florida, where liability had gotten so out of control that even the AARP supported efforts to limit ability of elders to sue nursing homes (Dec. 17, 2003).) Ramesh Ponnuru exposes the fallacies of this group’s reasoning in an article in this week’s National Review (sadly not available on line), which quotes me and mentions Walter. (Ramesh Ponnuru, “Social Injustice: Trial lawyers woo social conservatives”, National Review, Aug. 29).