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From the monthly archives:
July 2004
The California Supreme Court, which must know a hot case when it sees one, has unanimously agreed to review the recently reinstated harassment lawsuit in which Amaani Lyle, fired as a writers’ assistant on the TV comedy “Friends”, complained that the atmosphere in the scriptwriters’ office had included joking about women and sex (see Apr. 23, Jul. 19) (Mike McKee, “Calif. Justices Hit Rewind on ‘Friends’ Suit”, The Recorder, Jul. 23).
The Association of Trial Lawyers of America has decided to cultivate friends on both sides of the aisle. Long viewed as a friend of Democrats, the organization is beginning to see the wisdom of courting Republicans, too:
ATLA stepped up its courting of Republicans — particularly in the Senate — about three years ago. David Casey Jr., a Democrat who at the time was ATLA’s vice president, invited Mr. Parkinson, the Republican lawyer, to his San Diego law office….Mr. Parkinson went to see Sen. Hatch, who, he says, told him, “Not all Republican senators and House members favor the wholesale dismantling of the civil-justice system, but the view is that you’re completely Democratic.” If ATLA “would just try to be fair to both sides, they’re going to find the reception” among Republicans more welcoming, Sen. Hatch says in an interview.
How “fair” do they have to be to get a warm welcome? Let’s look at the numbers for the politicians mentioned in the article: Orrin G. Hatch, Saxby Chambliss, Lindsey Graham, and John T. Doolittle. Evidently, their work is paying off:
The trial bar’s Republican push again showed results last month, when Sen. Kyl tried once more to pass his attorney-fee cap for tobacco cases. This time, 15 Republicans opposed it, two more than last time.
Money talks. And trial lawyers have no shortage of money.
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Doctors in Pennsylvania had high hopes for the possibility of caps on non-economic damages in their state. They had managed to get a bill for an amendment to the state constitution that would allow the caps, only to see it killed in committee by opponents of tort reform. Evidently, the legislators don’t want to take the issue to the people, who would have had to vote on the amendment. Will they be willing to answer to the consequences of their inaction? Young doctors already view Pennsylvania as a state to avoid :
In 2003, only 17% of residents who trained in Pennsylvania stayed there, according to the Pennsylvania Medical Society. The state had a net loss of 507 physicians from 2002 to 2003, and it dropped into the bottom 10 states for the number of young physicians in the state, PMS data show.
Many people volunteer for medical trials for the hope of a cure that they offer, no matter how remote. The disappointment they suffer when the experiment fails is understandable, but one group of volunteers is suing to keep a failed experiment going. Hope springs eternal. (More details at RangelMD)
An Overlawyered reader makes a point worth debating about second hand smoke and the law:
In the case of smoking, I am one of those who thinks someone smoking around me (in public, of course – they can do as they like as long as the smoke stays on their own property) is a form of assault.
Analogy – chlorine gas. A little more obvious, a little quicker, and therefore easier to condemn, but whatever crime someone who releases chlorine gas in a public place (or directly onto my property) is committing, a person who blows their smoke on me in a similar manner is committing.
You want to dip? Chew? Snuff? Take tobacco intravenously? Knock yourself out – but leave me out of it! And if the legislature won’t protect my rights, then the lawyers are all I have left… Ouch, that’s a terrible choice.
It certainly is a terrible choice. But, is the case for second hand smoke really analogous to chlorine gas? Chlorine gas is highly caustic and causes immediate damage to the lungs. Lung damage can occur with doses as low as 9 parts per million.
Second hand tobacco smoke, on the other hand, is a little more complex. It’s composed of many different components, for one thing, kind of like smoke from a fire. One of its deadliest components is, perhaps, carbon monoxide, which can kill at concentrations of 2000 ppm and cause symptoms at doses of 200ppm. The amount of carbon monoxide in second hand smoke will vary depending on the concentration of the smoke, but even in a submerged submarine filled with smokers, the amount of carbon monoxide produced in three days is only 6.6 ppm, well within OSHA’s work-safety standards.
A better analogy of second hand smoke would be perfume. As crazy as this may sound, I have never had to admit someone for an exacerbation of their asthma or emphysema because their neighbor or a relative was smoking outside on their porch. But, I have had to admit patients whose asthma or emphysema was aggravated by perfume or incense. So where do we draw the line? If the smoker commits assault with his second hand smoke, then so, too, do the heavily perfumed with their Chanel No. 5.
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The editorialists of Denver’s Rocky Mountain News (Jul. 25) are critical of the settlement of a class action suit against AT&T Wireless said to be worth a maximum of $20 million in coupons, airtime and other benefits. Under the deal, most former subscribers will be offered noncash benefits with a value not to exceed $3, while current subscribers will be offered noncash benefits with an estimated average value of $10.50. Denver law firm Hill & Robbins (see also Jun. 9) is asking for $3 million cash in fees, plus $750,000 in expenses. The suit challenged the cell-phone company’s practice of delayed roaming charge billing, under which some roaming fees were not charged to customers’ bills until the next month, resulting in a detriment to those customers who had used up all their allotted minutes in the later month. See also John Accola, “Lawyers’ bonanza in AT&T lawsuit”, Scripps Howard/Sun, Jul. 20 (via Colorado Civil Justice League).
Yesterday John Tierney in the New York Times quoted me calculating that the $2.4 million that the Democrats paid for general liability insurance for their four-day convention amounted to roughly $500 per delegate/alternate, or about $120 per day apiece. My suggested line for Sen. John Edwards’s acceptance speech: “I’m worth it.” (John Tierney and Sheryl Gay Stolberg, “Rehabilitating the L-Word”, New York Times, Jul. 29). For more on the Democrats’ insurance bill (they paid an extra $86,000, on top of the $2.4 million, to add terrorism coverage), see “Democrats’ Insurance Coverage To Top $2.6m For Convention”, Bestwire (A.M. Best & Co.), Jul. 12.
Also welcome to readers of Wonkette, which picked up the item (Jul. 29). I should point out, however, that contrary to the site’s description of me I’m not a lawyer.
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.
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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.
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Opponents of medical malpractice tort reform often argue that malpractice premiums are on the rise because insurance companies made bad investments, not because of out-of-control jury awards. But, if that’s so, then why do premiums vary so widely by geography? Consider the rates in Cleveland, Ohio, a city that can lay claim to some of the most aggressive trial lawyers in the state, as well as some of the most generous juries:
A comparison of standard, non-discounted rates the American Physicians Assurance Corporation charges in Ohio, Illinois and Michigan shows doctors in Cuyahoga County paying the highest rates in almost every category, and nearly double the Columbus tariff.
For instance, neurosurgeons in Cuyahoga County paid $212,000 annually, while their colleagues in Columbus paid $118,000 in malpractice premiums. Doctors in the high-risk specialties also paid about $20,000 less in Chicago and Detroit than their counterparts in Cuyahoga County.
‘The fact is, a day doesn’t go by when a Northeast Ohio doctor doesn’t get sued for multimillions of dollars,’ says Myers.
Retired history professor, and former smoker, Robert Zangrando is suing his next door neighbor for smoking. The neighbor, who isn’t allowed to smoke inside her rented condominium, smokes outside on her patio, where the fumes evidently waft into the professor’s condo. The lawsuit, filed in January, was slated to begin this month, but has been delayed until September. In those intervening months, his neighbor has agreed to smoke in her backyard during only the first fifteen minutes of every hour. She’s also decided to move her family to a new neighborhood. Conflict resolved, right? Wrong. Zangrando is still pursuing his case. He’s charging her with battery and trespass and wants $50,000 in damages. The former smoker blames his neighbor’s smoking, not his own, for his declining lung capacity.
The report in the The Cleveland Plain Dealer notes that there has been an increase in these second-hand smoke lawsuits:
Secondhand smoke often leads to conflicts, and more than 420 lawsuits involving secondhand smoke have been filed in the last 25 years, according to research by Edward Sweda Jr., senior attorney for the Tobacco Control Resource Center at the Northeastern University School of Law in Boston.
“There have been an increasing number of lawsuits in recent years that corresponds to people’s increased awareness of secondhand smoke and the physical harm it can cause,” he said, “and the gradually increasing societal disfavor of tolerating such exposure.”
Well, it’s not just due to an increased awareness, it’s also due to the work of legal activist groups like this one.
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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).
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Point of Law points to the latest Congressional Budget Office report on tort reform, which concludes that non-economic damage caps do result in lower malpractice insurance premiums. They also decreased the practice of defensive medicine, at least when it comes to treating heart disease, without increasing mortality:
The authors found that the adoption of direct reforms led to a 6 percent drop in hospital expenditures for heart attack patients and a 9 percent decline for heart disease patients, with no significant change in mortality rates or cardiac complications.
They defined direct reforms as such measures as caps on punitive damages. Although it did take a few years to see the change in behavior and the reduction of malpractice insurance premiums, it appears from the report of this nonpartisan arm of the government, that tort reform works. Now can we give it a chance?
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The practice of obstetrics is not easy. Doctors who deliver babies face long, late hours, life-threaatening complications that can spring up in a split second without warning, and the constant threat of litigation for events beyond their control. Now, the malpractice crisis is making it even harder, with doctors in crisis states like Pennsylvania finding themselves in a manpower crunch thanks to the exodus of obstetricians from the state. Not only are doctors leaving, but hospitals are shutting down their obstetrics departments:
According to the 2003 American College of Obstetricians and Gynecologists Survey on Medical Liability, 12.5 percent of OB/GYNs in Pennsylvania have stopped practicing OB and 57.5 percent have made some change in their practice because of issues with affordability or availability of liability coverage, including relocating, retiring, dropping OB, reducing number of deliveries, reducing amount of high-risk OB care, or reducing gynecological surgical procedures.
Those statistics, however, do not come close to revealing the extent of the current problem of obstetrician supply in the five-county Philadelphia region, which lost 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.
That means longer hours and a greater proportion of riskier cases for the hospitals and doctors who remain. Which means they’re more prone to errors. It also means that they can no longer spread themselves as thinly as they once did. Hospitals that once staffed inner city public health clinics are can no longer spare the staff to do so, leaving the poor without easily accessible prenatal care. Remember that the next time you hear John Edwards say that he has spent his career helping the down and out.
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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).
“Saying a newly revised Missouri law bars such legal action, a state appeals court refused Tuesday to reinstate the city’s [St. Louis's] lawsuit that sought compensation from gunmakers, distributors and related trade groups for gun-related injuries. … Tuesday’s decision upheld a St. Louis County judge’s dismissal last October of the city’s 1999 lawsuit. In that ruling, Circuit Judge Emmett O’Brien said such lawsuits would open ‘a floodgate to additional litigation,’ and that ‘issues of both logic and fairness’ favored throwing out the case.” (Jim Suhr, “Appeals court rejects St. Louis city’s lawsuit against gunmakers”, AP/Kansas City Star, Jul. 27)(via Conservative Contrarian)(see Oct. 29).
More: One of the few bright spots for the anti-gun side has been a decision by the Indiana Supreme Court allowing the city of Gary’s suit to stay alive. The victory however was not exactly a famous one: “Although Indiana’s high court ruled that the city’s pleadings were legally sufficient, the unanimous panel expressed skepticism that Gary’s counsel could connect all of the links in the causal chain from manufacturer to injured party.” (Andrew Harris, “Court reinstates Indiana gun suit”, National Law Journal, Jan. 5).
