September 9 roundup

by Walter Olson on September 9, 2010

  • “Bullying Busybody for Senate: How Connecticut’s attorney general beat Craigslist into submission” [Sullum, Harper] Blumenthal’s Senate campaign sputtering despite huge advantages [Jack Fowler, NRO] Lloyd Grove interview with challenger Linda McMahon [Daily Beast]
  • “How Much Does Defensive Medicine Cost? One Study Says $46 Billion” [WSJ Health Blog, NY Times] Plus: a cardiologist’s comment;
  • “Man sues over parking ticket, says it disclosed too much info” [Obscure Store, suburban Chicago Daily Herald]
  • New allegations emerge in much-discussed “rape by deception” case in Israel [FrumForum, earlier, an academic comments]
  • A Connecticut village turns down money from Hartford and tackles a historic preservation project on its own [me at Cato]
  • NY Governor signs bill giving housekeepers, nannies new powers to sue employers for overtime, vacations [Workplace Prof] Plus: Hans in comments wonders whether the duty to avoid “hostile environment” harassment will collide with the right of free speech on sexual matters taken for granted (heretofore, at least) in a home environment.
  • “Lawyers sue Facebook for letting kids like advertisements” [Gryphon, PoL]
  • Per his foes, Gilded Age NYC trial lawyer William Howe used onion-scented handkerchief to summon tears at command [five years ago at Overlawyered]

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October 9 roundup
10.09.10 at 7:16 am

{ 5 comments }

1 ras 09.09.10 at 12:56 pm

Off topic, perhaps, but I did have to smile at this headline from “Psychology Today”

What Middle School Parents Should Know Part 2: Adolescents Are Like Lawyers

2 Hans 09.09.10 at 1:00 pm

The New York law extending employer mandates to homeowners who hire nannies is a bad idea, for many reasons.

One reason is that it may erode free speech and artistic freedom in the home, by allowing nannies and housekeepers to file complaints based on such speech.

Over the years, people have brought complaints about classical-nude paintings and sexually-themed art in public workspaces, claiming they are sexual harassment in the form of an “offensive” or “hostile work environment,” despite the free-speech issues that seemingly raises. See, e.g., amicus brief of Individual Rights Foundation, et al., in Lyle v. Warner Brothers, 132 P.3d 211 (Cal. 2006) (listing examples); see Stair v. Lehigh Valley Carpenters (trial judge finds harassment almost entirely based on sexually-themed calendars).

Will domestic employees now do the same about paintings and other works displayed by homeowners in private homes (for example, as a way of getting back at the employer when they get fired by claiming sexual harassment, or extorting a settlement based on sexual harassment)?

Logically, they might be able to, if New York sexual harassment law applies, although that may raise free-speech concerns. (A state intermediate appeals court, the Appellate Division for the First Department, has suggested that the “severe or pervasive” requirement for sexual harassment claims that applies under federal sexual harassment law does not apply under New York City’s civil-rights ordinance, meaning speech-based claims may be easier to bring in New York City than under federal law).

Sexual harassment laws have been allowed to reach speech in ordinary workplaces, perhaps because of a tradition of greater regulation of speech in the labor-relations context, as in the Gissel Packing case.

But that’s not true of homes. People have a right to free speech, including sexually-themed speech, in their own home. See Stanley v. Georgia, 394 U.S. 557 (1969) (even obscene speech is protected in the home, given homeowners’ privacy interests); City of Ladue v. Gilleo, 512 U.S. 43 (1994) (invalidating residential sign ban).

A domestic worker’s “right” to be free of sexually-themed paintings or other works that affect her work environment will now be pitted against the homeowner’s right to display those paintings in the home. But a harassment law “is only a statute. It cannot supersede the requirements of the First Amendment.” UWM Post, Inc. v. Board of Regents of Univ. of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991)(invalidating harassment code on free speech grounds); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006)(Chin, J., concurring) (state free-speech clause limited employer’s liability for sexually-themed speech deemed to contribute to offensive working environment); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (invalidating harassment code on free speech grounds); cf. Rodriquez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010) (appeals court rejects racial-harassment lawsuit over racially offensive emails about political issues, based on the First Amendment, and notes that there is no harassment exception to the Constitution’s free speech clause).

3 David 09.09.10 at 3:50 pm

I can assure you that defensive medicine is far more expensive than the $45 billion. As a cardiologist I feel compelled to do cardiac caths, stents, etc principally because if I treat a patient with medication alone, I am exposed. My referring doctors expect it as well to prevent protect them. Patients do not understand that the medication will have equal to better prognosis. Many patients also demand that procedures be preformed and if something happens and you have not done what they wanted, then you are in court.

As good example is a young woman who saw me a few months ago. She had chest pain and no risk factors for coronary artery disease. The pain was not characteristic of coronary disease in any way. On a probablilty table her risk of cardiac disease was non-existant. I spent one hour explaining her situation and reassuring her. I thought she was satisfied but then she got a second opinion. The doctor called and told me that she was mad and if she had anything was thinking of suing. She had a stress test which was positive due to her obesity. Then that led to a cath which was negative. Total bill was about $50,000 to get the same information that I had provided for $100. The other doctor would have done the same as I but was pushed due to the threat of legal action.

4 VMS 09.10.10 at 11:30 am

@ David (comment #3)

Also, there is a small, but significant risk of untoward complications from cardiac catheritization. What if she suffred an anaphylactic reaction or her kidneys were damaged by the dye? What if she developed an infection at the site of the catheter entry? What if the wire broke, and she needed major surgery to retrieve it?

The practice of medicine is about balancing the risks and benefits of treatment alternatives, including doing nothing. If a physician is in the right ballpark with his or her recommendation of treatment choices, there should be no lawsuit even if the chosen path is not the “best” one in hindsight. On the other hand, a physician should get sued for off-the-wall treatment choices or pure patient neglect.

Bad outcomes from sound medical choices do not equate with medical malpractice. Medical malpractice reform needs to target this problematical area without disturbing lawsuits brought for true medical screw-ups.

5 William Nuesslein 09.13.10 at 4:55 am

VMS states that “Bad outcomes from sound medical choices do not equate with medical malpractice.”

The major problem with medical malpractice litigation is that it is actually a horribly inefficient form of adverse outcome insurance. Juries can identify with an injured patient, but they can not follow the science involved in determining liability. And most important the coverage for the adverse outcome insurance is determined after the event, so there is no balancing of cost to risk that is inherent in premiums. One’s family may believe their father is worth millions to them, but they will forgo a life insurance for millions because of the cost of the premiums. Further, State Law curbs the level of insurance on a life to be consistent with insurable interest to avoid moral hazard. Medical malpractice caps fills mitigates the moral hazard of after the fact payment determination, although they fail to overcome the jury incompetence problem.

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