“In a nationally representative sample, higher patient satisfaction was associated with…increased mortality.” [White Coat/BirdStrike]
Low premiums! Few glitches! Larger states “working faithfully to implement the law with as few glitches as possible”! New Yorker’s Oct. 7 “Talk of the Town” on ACA’s smooth launch is a retrospective hoot;
Massachusetts Nurses Association goes all Venezuelan on hospital governance [Ira Stoll]
“Can a healthcare provider make an arbitration agreement with patients for resolving future malpractice disputes?” [Alex Stein]
“FDA Proposal To Curb Painkiller Overdose Deaths Would Add Burdens For Pain Patients” [Radley Balko]
Georgia DUI expert in hot water [PennLive] “Deconstructing the mechanical engineer” [Manhattan; Eric Turkewitz]
“The new law, which went into effect March 1, 2012, was hailed as the most dramatic reform in family law in decades and as a model nationwide, with alimony based on need. Unanimously approved by the Massachusetts Legislature, it curbs lifetime payments and sets specific time limits on alimony for marriages of 20 years or less.” So is it working? Bizarre cases and seemingly unreasonable spousal burdens persist: “the law, while a clear improvement, hasn’t been the hoped-for panacea.” [Bella English, Boston Globe]
Sen.-elect Cory Booker (and Mayor Bloomberg too) on liability reform and fixing health care [NJLRA] How plaintiff’s lawyers get around caps [Alex Stein, Bill of Health] Missouri protects health volunteer workers [John Ross]
Like an Ayn Rand novel: Massachusetts ballot initiative pushes confiscation of private hospital profits [Ira Stoll, NY Sun]
“A federal appeals court has shot down a Massachusetts consumer protection case against two doctors, a medical journal and its publisher over an allegedly flawed article cited by defendants in birth-injury medical malpractice cases. That means plaintiffs’ attorneys will have to challenge the article’s validity in each case in which the defense wishes to cite it.” The First Circuit did not reach the issue of constitutional free speech, but upheld a lower court’s ruling that the plaintiff had not shown adequately that expert testimony reliance on the allegedly faulty article had resulted in the loss of the litigation in question. [Sheri Qualters, NLJ] Earlier on A.G. v. Elsevier here.
A plaintiff’s lawyer is suing a medical journal and two doctors for publishing a case report that makes it harder to win some birth-injury lawsuits.
Here are the details, as reported by Sheri Qualters of the National Law Journal. Some newborns are found to be suffering from brachial plexus injury, a type of harm to a child’s shoulder, arm, or hand that in a minority of cases results in permanent disability (so-called Erb’s palsy or a number of related conditions). A large volume of birth-injury litigation goes on as a result, in part because courts have tended to accept the idea that the only medically recognized cause of those conditions in newborns is excessive or traumatic use of physical force by clinicians (“traction”). In 2008, however, the American Journal of Obstetrics & Gynecology published a case report of a delivery in which an infant was found to be suffering such injury although the physician by her own account had not applied any excessive traction during the birth. If instead natural forces of labor could cause the dislocation resulting in the condition, many lawsuits might rest on shakier ground. Since then, defense lawyers have cited the report — by Henry Lerner of Harvard Medical School and Eva Salamon of the Bond Clinic in Winter Park, Fla. — in litigation.
A Boston lawyer who claims to have debunked the Lerner-Salamon case study has proceeded to sue its two authors, Elsevier — which publishes AJOG and many other medical and scientific journals — and Dr. Salamon’s clinic for publishing and refusing to retract it. The damages are said to be $3 million each to two families of infant plaintiffs whose lawsuits did not succeed allegedly because of the case report. The lawsuit invokes a Massachusetts consumer protection law which allows treble damages, and also asks for a court order forbidding the report to be entered as evidence in future litigation. A trial court dismissed the case, in part on the grounds that the plaintiffs had not shown that the article was a material cause of the families’ failure to prevail in the suits. Now the case is on appeal to the First Circuit, where defense lawyers are arguing, inter alia, that if there are weaknesses in the article the remedy for plaintiffs is to introduce evidence to that effect to counter it in trials. “As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment.”
First Amendment? Let’s not go to extremes. If we start applying the First Amendment, how are lawyers supposed to silence publications that inconvenience them?
The Massachusetts attorney general is now running for governor of the state after losing a Senate run three and a half years ago, so this makes a good occasion to revamp a 2010 post slightly so as to remind readers of Coakley’s central role in the Amirault travesty of justice, described so well by Dorothy Rabinowitz here. Earlier on the Amirault case here and here; on Coakley’s prosecutorial record here. More: John Stossel and (via Memeorandum): Bronwyn’s Harbor, No Quarter (citing views of Jeralyn Merritt/TalkLeft); Dan McLaughlin, RedState; Dan Riehl (Woodward, Souza cases). Yet more: on Coakley’s offer to a deal to one defendant on condition that the experienced defense counsel handling the deal agree not to represent a second defendant in future, see Scott Greenfield (characterizing the move as “a deliberate effort to undermine the constitutional right to counsel”), Kenneth Anderson/Volokh, and John Steele/Legal Ethics Forum. In 2010 we wondered whether Coakley’s Senate-race nosedive under critical public and press scrutiny amounted to the first time a Massachusetts prosecutor had paid a price for being wrong in the Amirault episode.
“Retirement benefits cost Connecticut more than half of payroll” [Raising Hale] Jagadeesh Gokhale, “State and Local Pension Plans” [Cato] “In the report Krugman cites, the researchers note (repeatedly) that the trillion-dollar figure is very likely a dramatic understatement of the size of the unmet liability.” [Caleb Brown]
California: “Bill would reinstate state workers who go AWOL” [Steven Greenhut]
You know, the money that was said to be so vital to fund “tobacco control” programs. What percentage of the state of Massachusetts’s haul (more than $250 million a year from legal settlement proceeds, aside from outright taxes) do you think actually gets spent on such things? Guess, then click through to my new Cato post.
A man who showed up at court in Springfield, Mass. to deal with a traffic ticket mistakenly wound up on a jury. The jury proceeded to hear the evidence and closing statements and convict the defendant; the judge declared a mistrial after it emerged that the man, who spoke limited English, had gotten on to the panel by accident. [MassLive]
Public health busybodies call on UK government to set minimum price for alcoholic drinks [Telegraph] Carrie Nation never thought of this: anti-booze campaigners target its calorie count [Baylen Linnekin] New York state plans anti-alcohol campaign [NY Post]
“Will Litigation over Playground Injuries Create a Generation of Neurotics?” [WSJ via ABA Journal]
Massachusetts Gov. Deval Patrick reassigns his exceedingly accident-prone state highway director [Boston Globe, Ilya Somin]
“Magnet spheres may soon be harder to acquire than ammunition in the U.S.” as Buckyballs gives up [Anthony Fisher/Reason, earlier] And from Twitter: “Those 0.0 deaths per year were not in vain.” [@TPCarney modifying @bigtimcavanaugh]
“Mary Cain wants $3000 damages from the street car company for a ‘sudden jerk.’ MO1917″ [@tweetsofold]
“No Liquid Soap Allowed in Pre-School Bathroom: Children Might Drink It” [Free-Range Kids]
And finally, the catchy, unsettling safety promotion video that’s been everywhere the last week or two, from the Melbourne transit authority:
“Statutes of Limitations Apply Especially to Government Agencies” [Ilya Shapiro on Cato Institute amicus brief in Gabelli/SEC case] “The rule of lenity is violated when people go to prison for breaking ambiguous laws/regulations.” [Roger Marzulla, Federalist Society "Engage"]
Sen. Rand Paul on the Missouri rabbit breeder case [Daily Caller]
Visual representation of debate result (courtesy Chris Fountain) “Obama should have spent more time in court” [David Frum] “Can you imagine the rewards points we earned by paying for wars with the national credit card?” [@BCAppelbaum via @TPCarney]
Update: Thompson is now taking the allegations more seriously based on new information unearthed by William Jacobson at Legal Insurrection about Warren’s representation of a Massachusetts client on issues arising from Massachusetts law. But John Steele at Legal Ethics Forum does not find the representation as described (in a federal bankruptcy court) to raise UPL flags. For one state’s view on whether admission to practice before a federal bankruptcy court is a valid defense to charges of UPL concerning state-law issues ancillary to that practice, see also In the Matter of the Reinstatement of Mooreland-Rucker, Oklahoma Supreme Court, 2010 (thanks to a reader for the tip). More: Bader.
California politicos seek crackdown on lenders’ supposed “retaliation” against municipalities considering seizing mortgages by eminent domain: “You Can’t Use Voluntary Action to Try to Stop Government Coercion” [Coyote; earlier here, here, here] Will Congress step in to shut down the grab? [Kevin Funnell]
“The government of Honduras has signed a deal with private investors for the construction of three privately run cities with their own legal and tax systems.” [A Thousand Nations, Todd Zywicki, FedSoc Blog]
A Philadelphia business owner decides to clean up and improve an adjacent, neglected city-owned lot, and soon has sad cause for regret [Philly Law Blog]
“According to the bylaw approved by residents in April, it will be illegal to sell non-sparkling and unflavored drinking water in single-serving plastic bottles of 1 liter or less in Concord on or after Jan. 1, 2013.” Jean Hill, the chief proponent of the measure, cited environmental concerns and said, “I feel bottled water is a waste of money.” Thanks for saving us from that temptation, ma’am! [Boston Globe; Wicked Local Concord]
Get your copy today!My new book tackles the question of why so many bad ideas come from the law schools. "Cutting-edge commentary, hard-hitting, witty, astute." -- Publisher's Weekly. "Excellent... A fine dissection of these strangely powerful institutions" -- Wall Street Journal.