New York: “The family of a teen who was shot and killed by an undercover cop last year — after the youth put a BB gun to the head of the officer’s partner — filed a $5 million wrongful-death suit against the city yesterday.” Police say Allen Newsome, 17, had robbed several restaurant deliverymen in Harlem when he got caught in a January 2003 sting operation in which an undercover cop posed as a delivery worker. As the teen held a gun to the officer’s head, “a second officer — the cop’s partner — shot Newsome three times.” Now his mother is suing, saying cops took too long to summon medical help. (Carl Campanile, “Kin of Slain ‘Thief’ Sue City”, New York Post, Aug. 10)(via NY Civic “Quotidian“).
Archive for August, 2004
Another med-mal insurer collapses
This time it’s the Hospital Casualty Co. of Oklahoma, a subsidiary of the Oklahoma Hospital Association founded in 1977 by 12 local hospitals, capsized by nursing-home suits and by the general Sooner-get-sued atmosphere in its home state. Must have been mismanaged, our friends in the plaintiff’s bar will say. Earlier this year, the Physicians Liability Insurance Co., owned by the Oklahoma Medical Association and the state’s largest med-mal insurer, “was placed under formal supervision of the Insurance Department because the company didn’t have money to pay anticipated claims.” Another mismanaged outfit, no doubt. More details at Point of Law, where I also discuss the anguish felt by California insurance regulators over the relative lack of interest among low-income drivers in taking advantage of a scheme to rob Peter in Pacific Palisades to pay Paul in Pico-Union.
Target: general aviation services
Ten years ago, in one of the few significant liability reforms to emerge from Washington, D.C. in modern times, Congress provided litigation relief to small-aircraft makers, most notably by cutting off lawsuits filed more than 18 years after an aircraft was sold. As was widely reported, general aviation thereafter enjoyed a substantial recovery from its previous slump, with significant numbers of planes again being manufactured and sold. But trial lawyers, casting around for parties to sue after crashes, simply began naming everyone else in sight: flight instructors, “mechanics, manufacturers of replacement parts, fuel suppliers and airports. Aviation is again in decline.” Frasca Field in the college community of Champaign-Urbana, Ill. has “shut down its flight training, recurrent training and mechanics’ services a year ago because of skyrocketing insurance costs brought on by a lawsuit in which the field itself was found not guilty.
“The case stemmed from the 1996 death of a man who was a passenger in a Piper J-3 Cub that crashed in a cornfield near Thomasboro. Federal Aviation Administrators inspectors found no mechanical problems. The National Transportation Safety Board said the accident was caused by pilot error. Frasca Air Services Owner Rudy Frasca said the final legal defense price tag was about $600,000. ‘We won the case, but we lost the field,’ said Tom Frasca.” Much more here (J. Philip Bloomer, “Liability costs ground Frasca”, Champaign (Ill.) News-Gazette, Jun. 20).
Terrorism legal risk: see no evil…
“A year after the Sept. 11 attacks, the Justice Department obtained video surveillance tapes suggesting terrorists were targeting Las Vegas casinos, but authorities never alerted the public as they discussed whether a warning might hurt tourism or increase the casinos’ legal liability, internal memos show. …Another memo states the casinos didn’t want to see the footage for fear it would make them more likely to be held liable in civil court if an attack occurred.” Most local law enforcement authorities also declined an opportunity to view the tape. (John Solomon, “U.S. Didn’t Warn Las Vegas of Threats”, AP/Washington Post, Aug. 9). On the other hand, MGM Mirage spokeswoman Yvette Monet said her company did see the tapes and cooperated with authorities. An anonymous casino executive also tells the Las Vegas paper that the casinos kept their distance from a Detroit terrorism trial in which surveillance tapes were a factor because they feared having to reveal their security plans in sworn testimony, to the advantage of future terrorism attempts. (“Terrorism threats: city accused of inaction”, Las Vegas Review-Journal (with AP coverage), Aug. 10). More: Eugene Volokh comments as does Radley Balko.
“Screen me or I’ll sue”
Defensive medicine? Medblogger KevinMD winds up providing it against his better judgment when menaced by a litigious patient (Jul. 7). An anonymous post in his comments section discusses how doctors may lawfully extricate themselves from entanglement with clients who bully them with legal threats.
“Rape shield laws don’t work”
In “acquaintance rape” cases, especially, these laws unjustly deny defendants access to potentially exculpatory evidence. Yet they haven’t succeeded in protecting rape accusers’ reputations or right to privacy either, especially in runaway media events like the Kobe Bryant trial in Colorado: “high-profile rape trials allow the media to do far more damage than rape shield laws ever tried to mitigate”. (Dahlia Lithwick (acting this month as guest columnist), New York Times, Aug. 8).
Update: commentary on Merenstein lawsuit
Dr. David Merenstein’s Journal of the American Medical Association article (“Winners and Losers”, JAMA. 2004;291:15-16, reprinted here), first noted here Jan. 14, continues to be the source of discussion in the medical community.
Kerry, malpractice and “going to China”
For at least several weeks Sen. Kerry has been publicly floating the theme that he and running mate John Edwards can achieve medical malpractice reform in the same way that Republican Richard Nixon could achieve rapprochement with China, presumably because their ticket would have the sort of credibility with the litigation lobby that the late GOP president had with dedicated anti-communists. The trope appeared in a Cape Canaveral, Fla. speech in late July (see National Public Radio audio coverage, Jul. 26) and more recently in response to a question in Grand Rapids, Mich. (Unofficial Kerry for President blog, Aug. 2; similarly (and by same writer), Doctors and Nurses for John Kerry site; Robert S. Greenburger, “Doctors Diagnose Kerry as High Risk”, Wall Street Journal, Aug. 5 (sub); see also Joel B. Finkelstein, “Edwards’ trial lawyer past raises red flags for doctors”, American Medical News (AMA), Jul. 2).
We reported on the controversy last week (Aug. 5). Martin Grace has several follow-up comments (Aug. 6) on the breeziness of the Kerry proposals toward federalism, as well as on the apparently incurable Democratic tendency to blame the whole problem on insurance providers, even though “the largest med mal providers in a given state tend to be owned by the docs” who have no very obvious incentives to self-gouge (more, more). And George Wallace at Decs & Excs (Aug. 5) has more about Edwards’ enthusiasm for curtailing the McCarran-Ferguson Act, which leaves insurance regulation to the states. (Update: David Giacalone, Martin Grace and Wallace have much more on this, follow the links).
A reader on Capitol Hill writes to say that from the appearance of things, the Kerry proposals appear to differ little if at all from proposals repeatedly put forth by congressional Democrats as alternatives to GOP-sponsored medical malpractice reform. Those proposals (the correspondent adds) have been at best weak as a way of curtailing litigation, and in some instances would actually encourage it. For example, the Democratic alternative Rep. Conyers offered to H.R. 4280 can be examined in the Congressional Record dated May 12, 2004. It includes a (toothless) mandate for nonbinding mediation of state court malpractice cases, and takes care to specify that this mandate will pre-empt and invalidate all otherwise prescribed forms of alternative dispute resolution — including those currently required in some states which do much more to curb litigation — as well as all contractual barriers to suit. Having looked through this Conyers amendment, however, I should probably retract my hasty assumption (voiced last week) that the Democrats on the Hill had been big defenders of federalism on this issue — their bill seems just as willing as the Republicans’ to dictate to state courts, it just wants to dictate different things.
Update: Further Kennewick Man litigation likely
The Los Angeles Times reports that the eight-year-old legal battle over scientists’ attempts to study the 9,300-year-old bones (Feb. 14) is probably not over, even though Indian tribes and the Department of Justice decided not to appeal the Ninth Circuit’s ruling to the Supreme Court. Before, Clinton administration objections under the Native American Graves Protection and Repatriation Act prevented study. Now, the U.S. Army Corps of Engineers, which has custody of the bones, is objecting under the Archaeological Resources Protection Act of 1979 to anthropologists’ plans to study the skeleton. And the tribes have filed papers expressing their intent to continue litigating. In the words of the Houston Chronicle’s headline-writers in reprinting the LA Times article, “Curse of lawyers surrounds ancient skeleton.” (Tomas Alex Tizon, “Skeleton Case’s New Bone of Contention”, Los Angeles Times, Aug. 2 (via Bashman); Eli Sanders, “An 8-Year Fight Ends Over a 9,200-Year-Old Man”, New York Times, Jul. 20; Tim Sandefur, Panda’s Thumb blog, Mar. 25; Bonnischen v. United States; Friends of America’s Past website and Aug. 4 press release).
Lerach to Google: cough up bettor bucks
“Lerach Coughlin Stoia & Robbins …filed a class action against Yahoo Inc., Google Inc. and 10 other Internet search engines that claims they have been promoting illegal gambling on their Web sites and requests that they fork over the ad revenue. The complaint, filed Tuesday in San Francisco Superior Court, requests that the search engines put revenue from advertising Internet gambling into a fund that would provide restitution to California Indian Tribes or other licensed gambling businesses in California. The complaint says money in the fund would also go to the spouses of gamblers who have had community property taken away as a result of illegal gambling and to the state treasury.” (Brenda Sandburg, “Casino Come-Ons Return Bad Result for Search Sites”, The Recorder, Aug. 5; David Legard, “Gambling lawsuit filed against top Web content sites”, IDG/Computerworld, Aug. 4). For questions about the legality of accepting advertising from offshore casinos, see Apr. 21. Earlier lawsuits have gone after credit card companies for facilitating offshore gambling transactions (see Dec. 7, 1999), but a Lerach attorney said this was the first suit against search engines.