Archive for October, 2004

Vioxx medblog roundup

There’s been plenty of discussion going on among the medical bloggers about Merck’s withdrawal of its arthritis drug. For posts especially relating to the courtroom implications, follow the italics: Derek Lowe (first, second posts); KevinMD (lots of posts: one, two, three, four, five, six, seven, eight); Blogborygmi; RangelMD (first, second posts; MedPundit (first, second posts); MedRants (first, second, third, fourth posts); and Point of Law.

Texas Watch: San Antonio State Hospital v. Cowan

James Roy Cowan, Jr., committed to the San Antonio State Hospital, hung himself with his own suspenders. His family sued the state-run hospital for not preventing the suicide. Problem: Texas law prohibits lawsuits against state entities. Plaintiffs’ creative solution: an exception permits lawsuits against the state when the state injures someone by “using” “tangible personal property”–for example, if a state employee negligently drives an automobile. Thus, plaintiffs argued, the hospital “misused” the suspenders by permitting them to remain in Cowan’s custody. A trial court and appellate court were prepared to let this theory go to trial, but the Texas Supreme Court unanimously reversed last January.

Reasonable minds may differ as a matter of public policy whether Texas taxpayers should be on the hook for damages for failing to prevent a suicide, but it hardly seems controversial that the Texas Supreme Court correctly held that the Texas legislature has not made that decision.

Except that “Texas Watch,” a plaintiffs’ lawyers’ front group (see Mar. 11), issued a report complaining that the Texas Supreme Court was “anti-consumer.” It came to this conclusion by tallying various pro- and con votes in 52 cases, and noting that the Texas Supreme Court votes against plaintiffs in 82% of that sample.

Of course, this is hardly sufficient to prove any such thing. Perhaps, as in Cowan, the problem is that the lower courts are too aggressively activist and pro-plaintiff. If so, the Texas Supreme Court’s ratio reflects that it’s simply being more reasonable than the decisions of the courts it was reviewing.

One might complain that I’m nitpicking at the Texas Watch report — except that that same report included a “Terrible Ten”, and Cowan was singled out as the most terrible of the ten at the top of the list, as the anecdote that Texas Watch thought most helpful to their argument. Leave aside for the moment whether a decision that protects Texas taxpayers is “against the public” as Texas Watch portrays it. It is telling that Texas Watch believes that it is the responsibility of the Texas Supreme Court to create rights for plaintiffs where the legislature has refused to do so; while newspapers printed rebuttals from a Texas Supreme Court spokesperson, they did little to evaluate the relative truth claims of the competing soundbites and let Texas Watch dictate the headlines. (Christy Hoppe, “High court rarely backs consumer, study says”, Dallas Morning News, Oct. 6; John Moritz, “Court goes largely against public, group says”, Star-Telegram, Oct. 6; Tama Swan, “Report finds past year’s Texas high court rulings lopsided”, Daily Texan, Oct. 7) (via Bashman).

U.K.: “Medics slam ‘money for referrals'”

Following a rules change this spring which for the first time allowed solicitors to share fees with third parties, law firms across England have begun offering money to doctors for the referral of injury cases. “Lawyers Higgins and Co, from Birkenhead in Wirral, has been offering GPs ?175 for every patient they refer to their firm. … The British Medical Association said it believed doctors being offered money for compensation referrals was ‘inappropriate and gives the appearance of a conflict of interest.'” One danger, for example, is that doctors in cases of unclear diagnosis will be given an incentive to diagnose a malady for which compensation can be sought rather than one for which there is no one to blame. “But the Law Society said there was nothing wrong with this practice, as long as all parties were aware that money had been exchanged.” (BBC, Aug. 27) (& letter to the editor, Jan. 17).

“Drunken man passes out, wins $850K from police”

New Jersey: “Ramsey and Bergen County police must pay a man who got drunk and passed out on a snow bank $850,000. A jury decided the police bungled a 911 call, and should have found Frederick Puglisi sooner. …Puglisi walked out of a New Year’s Eve party at a Ramsey hotel in 2001 and passed out on a snow bank for nine hours.” Attorney Samuel Denburg convinced a jury that Puglisi was only 15 percent responsible for his resulting frostbite and other injuries, while the police were 85 percent responsible because the 911 dispatcher did not press for enough details from a bystander or pass all the details on to officers, and because the police conducted only a cursory search of the scene. (“Jury Makes Police Pay $850,000 For Not Finding Partygoer”, WNBC, Sept. 29; “Drunken man passes out, wins $850K from police”, Newsday, Sept. 29; “Drunken ‘Snowman’ Gets $850G Payday”, 1010WINS, Sept. 29).

Edwards’ lawyerly debating skills

The rhetorical techniques that John Edwards employed in his opening and closing arguments before juries were on display Tuesday night in the vice presidential debate, according to lawyers who crossed swords with him in his home state of North Carolina (Lisa Hoppenjans, “Lawyers: Edwards used trial technique”, Winston-Salem Journal, Oct. 6). Thoughts Online and Beldar discuss whether success as a trial advocate nowadays critically depends on the ability to “think on one’s feet”, as opposed to delivering a pre-scripted message, given the emphasis of modern procedure on avoiding surprise at trial. (My own impression is that Edwards was strongest when delivering material suitable to being prepared in advance, and less strong when obliged to depart from the script.) Several commentators note that Edwards saved many of his most slashing attacks for his final round of discussion on a given question, at which point Cheney would have no chance to reply. And George Will thinks Kerry’s selection of Edwards as running mate was a blunder, though for reasons unrelated to the debate (“GOP power plan”, syndicated/Washington Post, Oct. 7).

Oz: better get insurance, golfers

“Social and club golfers should ensure they are covered by insurance before they even think about teeing off, the Victorian Golf Association has warned.” Mark Roy Shanahan was held personally liable for an A$2.6 million award after a charity game 10 years ago at a Queensland country club when his ball hit another golfer in the head. Although club members are often covered by a club’s liability policy, green-fee golfers may be exposed and would be wise to seek alternate sources of insurance, said VGA executive director Doug Fox (Daniella Miletic, “Insurance can stop a poor shot landing in court”, Melbourne Age, Sept. 12).

“We do have too many lawsuits”

So said John Edwards, in tonight’s vice presidential debate with Dick Cheney.

As he has done many times before, Edwards also said he was proud of his record of suing drug companies, insurance companies and HMOs. He did sue those kinds of defendants sometimes, but his actual specialty was suing doctors. Why won’t he say he was proud of that, too?

Unless I missed it, Cheney did not do much to contradict Edwards’ claim that his proposed liability reforms will keep bad cases out of court. For more on that question, see my August WSJ piece.

More: Why, asks Michael Graham of National Review Online. wasn’t Cheney familiar with Edwards’ legal cases? It’s hardly as if they’re above criticism. On the senator’s CP cases, also check out the correspondence back in August between Ramesh Ponnuru and an unnamed letter-writer on NRO “The Corner”. Plus: Prof. Bainbridge comments. FactCheck.org (not .com!) sorts out the Halliburton stuff. Jay Nordlinger says Edwards “sounded more anti-lawsuit than Cheney did”. And CBS News reports, based on feedback from its live poll (in which viewers graded the debaters as they went along using their remote controls), that: “Both candidates scored high points when they talked about the need to limit lawsuit and keep frivolous lawsuits out of the system, Cheney when he mentioned that doctors were being driven out of practice ?- especially OB-GYNs, which gave him very high ratings with women. Edwards did well when he said lawsuits must be limited and when he talked of his own experience fighting in the courts.” (“Uncommitteds Tab Edwards Winner”, Oct. 5).

The debatable Edwards

Just in time for tonight’s debate, the Capital Research Center is out with an anything-but-flattering report on the North Carolina senator and his role on the Democratic ticket (Robert James Bidinotto, “Kerry, Edwards and ‘the Lawsuit Lobby'”, Organization Trends, Oct. (PDF))(quotes me). And reporter John Riley of Newsday takes a more than usually thorough look at Edwards’ record in medical malpractice work (“GOP may seek to exploit Edwards’ trial history”, Oct. 4)(also quotes me). For this site’s coverage of the Smiling One, see July 19, Aug. 2, Aug. 2, Aug. 17, Aug. 23, Aug. 25, and many other entries on our politics page.