Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for June, 2004

Mammography under threat

Confirming the trend we reported on Oct. 3: “A worsening shortage of providers is threatening women’s access to mammograms, says a major new report that found long waits for the breast X-ray in parts of the country. …Fewer radiologists are specializing in breast imaging because of long hours, low reimbursement, heavy regulation and fear of lawsuits,” according to the Institute of Medicine study. In addition, as readers try to lean over backwards lest they be accused of overlooking an ambiguous result, the false-positive rate in mammogram results has nearly doubled since the 1980s, according to the report, which in turn “leads to costly, unnecessary repeat testing as well as the anxiety that women often cite for skipping mammograms.” (Lauran Neergaard, “Scientific advisers urge increased access to mammograms”, AP/San Francisco Chronicle, Jun. 10; “Advisers urge greater mammogram access”, AP/CNN, Jun. 10; report, “Saving Women’s Lives: Strategies for Improving Breast Cancer Detection and Diagnosis“).

The medical blogs have been all over the story: MedRants, Cut to Cure, MedPundit. Last month radiologist Thomas Boyle (“CodeBlueBlog”) deplored some of the economic and regulatory pressures working to kill mammography practice (“Mammactivists Killing the Mammogram”, May 12, see also Jun. 11), and was no less scathing about the legal pressures:

A mammogram is an inherently limited study with relatively low sensitivity and specificity. Unfortunately, the public does not understand these limitations because the exam has been oversold as a diagnostic modality (We are told this is for the public’s “own good?). As a result, people have a difficult time understanding why breast abnormalities are “missed” or “misinterpreted” during routine mammography. Personal injury lawyers ruthlessly take advantage of this dilemma by scavenging mammograms involved in breast cancer cases. They prey on this ignorance by holding radiologists to impossible standards bolstered with retrospective analyses of mammograms done by venal physicians in their stable of “experts”. As a result, mammography is the single highest liability risk for radiologists (and the second highest risk in all of medicine). For a $15 reading fee, radiologists can face multi-million dollar lawsuits.

More: PointOfLaw, Dec. 14.

Filed under:

“Sex, lawyers, secrets at heart of sealed legal case”

According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek “no strings” discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement. (As the law firm’s web site puts it, “We believe in a team approach.”) Because of Texas’s permissive legal ethical rules, prosecutors decided they couldn’t pursue extortion charges; state law permits Roberts to bring “creative” claims and to take discovery in advance of filing a lawsuit, and the prosecution had no way of proving that Roberts’s intent in submitting the documents was a bluff rather than a “legitimate” lawsuit.

The newspaper found out only because another lawyer, Robert V. West III, sought to raise the scheme as part of a separate business dispute with the Roberts; fans of poetic justice will note that the Roberts accuse West of blackmail, and brought disciplinary charges against West and his lawyer to the state bar. The bar is investigating West, but, apparently, not the Roberts. Everyone involved denies any wrongdoing. Roberts unsuccessfully brought suit to prevent publication of the story, but the court records remain sealed. (Maro Robbins and Joseph S. Stroud, Jun. 13) (via Bashman).

Filed under: , , , , ,

Update: Coors suit dropped

Ends with a whimper dept.: “After being threatened with sanctions for frivolous litigation, a Reno lawyer said …he has dropped a lawsuit against Coors Brewing Co. filed for the mother of a young man who died in a car wreck while driving drunk. …when a lawyer for Coors threatened [attorney Ken McKenna] and [client Jodie] Pisco with sanctions, they decided to back off, he said.” Too bad sanctions have been made so hard to get in most courts, since their deterrent effect on wrongful lawsuits is often clear, as in this instance. The original case (see Apr. 19) had drawn worldwide publicity. (“Lawyer drops suit against Coors in man’s death”, Reno Gazette-Journal, Jun. 2; Steven Milloy, “Lawsuits, Alcohol Advertising and Money”, FoxNews.com, May 21).

Filed under:

Madison County medical malpractice numbers

Madison County has its deserved reputation as a “judicial hellhole” because plaintiffs recognize that its judges are friendlier to questionable class actions and asbestos cases, leading it to become a magnet jurisdiction for these actions. (See Apr. 15; Apr. 5; Jan. 5 and links therein; John Stockinger, “Advocates call for reform of Madison County legal system”, Alton Telegraph, Jun. 9.) Now, the Astroturf trial lawyers’ group “Victims and Families United” (Feb. 20) tries to defeat that perception by trumpeting some statistics about medical malpractice in the region. Previously, the group had tried to suggest there was no medical malpractice crisis, despite the fact doctors were leaving the area by the dozens, by pointing out the low number of verdicts in the area; of course, verdicts are a small fraction of payouts to lawyers in settlements. So the trial lawyers have responded by making up some numbers, and trusting that the press won’t delve too deeply into the claims.

By manipulating a couple of denominators, the trial lawyers’ group purports to show that settlement payouts are average for the state. The Madison-St. Clair region has 4.2% of ISMIE’s $270 million in payouts in 2003, they say, and 4.2% of the population; therefore, payouts are supposedly in line with the rest of Illinois. The St. Louis Post-Dispatch uncritically reports these numbers, as well as uncritically calling the trial lawyers’ group a “victims’ rights group.” (William Lamb, “Data do not justify Metro East’s malpractice reputation, group says”, Jun. 10).

But the numbers are bogus. ISMIE doesn’t insure “population”, it insures doctors, and doctors per capita are lower in Madison and St. Clair Counties than elsewhere in the state; off the bat, one would expect lower payout rates for these counties if they were typical for Illinois. Worse: the $270 million denominator is fictional. Using the actual denominator of $226 million (see 2003 ISMIE Annual Report at 25) or $234 million (John Stockinger, “Victims group disputes claims of insurance crisis”, Alton Telegraph, Jun. 11), and the Madison/St. Clair per capita number (a number that already understates the extent of the problem) turns out actually to be 116% to 120% of the statewide average–a number that can be found nowhere in the press coverage. (Patrick J. Powers, “Claims here mirror state”, Belleville News-Democrat, Jun. 12).

At least the Alton Telegraph balances it with other statistics that tend to show the fiction: average payment to plaintiffs in the area jumped from $276,000 to $495,000 between 2002 and 2003. In the past five years, ISMIE has paid out $33.5 million in verdicts, settlements and expenses, while earning only $29.6 million from Madison/St. Clair County-area premiums.

Filed under: , , ,

Archived by the Library of Congress

The Library of Congress, as part of a project that aims to preserve press coverage of the 2002 campaign, has archived this site as it appeared in the fall of that year, along with dozens of other weblogs. LiveJournal user “UKSubs” pays us a nice tribute in a list of favorite sites, writing: “I am still shocked by the number of ridiculous frivolous lawsuits filed in this country and others on a daily basis. Overlawyered works by finding a nice tone that is firmly between mocking and anger. Everytime I read Overlawyered, a part of me screams, what have I gotten myself into.” And we got a great big influx of traffic from Neal Boortz’s popular site (see Mar. 1-3, 2002) when the Atlanta-based radio host linked to our Jun. 1 item on the lawyer who hopes to offer “post-traumatic slave syndrome” as an excuse for an Oregon defendant accused of murder.

Filed under: , ,

Great moments in environmental protection

“After six years of regulations and restrictions that have cost builders, local governments and landowners an estimated $100 million, new research suggests the ‘threatened’ Preble’s mouse in fact never existed. It instead seems to be genetically identical to the Bear Lodge meadow jumping mouse, which is considered common enough not to need protection.” (Mead Gruver, “Research: Endangered Mouse Never Existed”, AP/Las Vegas Sun, Jun. 11; “More mice could muddy waters in Preble’s mouse fight”, AP/Casper Star Tribune, May 14)(more on endangered species).

Filed under: , ,

Behind in your child payments? We’ve got a knife here

A Kentucky family court judge is ordering some dads who fall behind in their court-ordered child support payments to choose between going to jail and submitting to a vasectomy. That’s part of a growing trend (see Jan. 7-8, 2003) for courts to issue edicts against procreation, notwithstanding the bad odor that court-ordered sterilization has been in for the past few decades. (Dee McAree, “Deadbeat Dads Face Ban on Procreation”, National Law Journal, Jun. 10). For more on child support, see Feb. 3, Sept. 18, Feb. 25; more.

Filed under: ,

Mustn’t undermine their authority

Reversing a seven-year-old precedent, the Massachusetts high court has ruled that even though employees enjoy an absolute right to seek jury trials rather than have their claims of bias adjudicated by the state antibias agency, MCAD, employers do not have a right to bring their case to a jury following an adverse MCAD ruling. In its May 6 decision, the court said that recognizing employers’ right to a jury trial, as it had done in a 1997 decision called Lavelle v. Massachusetts Commission Against Discrimination, was undermining the agency’s authority. Mustn’t do that! (“SJC decision curbs employer access to jury trial in job-related discrimination cases”, Boston Business Journal, May 7; “Bias case rulings may have wide impact”, BostonWorks.com (Boston Globe), May 23; “Q&A: MCAD’s Dorca Gomez, on jury trial reversal”, Boston Globe, May 16). The law firm of Foley, Hoag & Eliot (May 12, PDF) said the ruling “further stacks the deck against employers in discrimination cases”. Remarkably, the Massachusetts chapter of the ACLU had pressed to abolish employers’ right to jury trial, and hails the new decision in a press release which seems calculated to lull the casual reader into imagining that the two sides are somehow still endowed with symmetrical rights (by de-emphasizing complainants’ privilege of choosing which forum will hear the dispute). No doubt our friends at ATLA, with their frequent rhetoric about the need to prevent erosion of the jury system, will rise to deplore the stripping away of defendants’ access to juries. Right?

Filed under: , , ,

Mississippi passes tort reform

Following hard-fought political battles, the Mississippi legislature has passed and sent to Gov. Haley Barbour for his signature a wide-ranging bill limiting liability lawsuits. It includes a $500,000 limit on pain-and-suffering awards in medical malpractice cases, and $1 million in other cases; punitive damage caps; venue reform; joint and several liability limitation; relief of premises owners from liability to contractors’ employees for hazards known to the contractor; and product liability relief for “innocent sellers”. In recent years Mississippi has sometimes been charged with having a legal system more tilted against civil defendants than that of any other state; the new law is likely to help ameliorate that image. (Julie Finley, “Doctors praise tort bill passage”, Natchez Democrat, Jun. 3; overview of H.B. 13 at Mississippi Economic Council site; “Barbour touts tort reforms in D.C., N.Y.”, Jackson Clarion-Ledger, Jun. 10; American Tort Reform Association press release, Jun. 4). For a few highlights from our coverage of the Magnolia State, see May 15, Apr. 30, Dec. 12, Nov. 16, Nov. 12, Oct. 3, Aug. 19, Jul. 1, and Jun. 29, among many others.

Filed under: , ,

New oil refineries? Forget it

No new oil refineries have been built in the United States since 1976 — not even in California, where capacity shortages have especially pinched. The reason is not the lack of demand, but the legal/regulatory environment. (Mike Angell, “Rules, Small Returns Block New Refineries”, Investor’s Business Daily, Jun. 10; Dale Kasler, “No new California refineries despite soaring gas prices”, AP/Oakland Tribune, Jun. 10).

Filed under: ,