Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for May, 2005

The city doesn’t always pay

Reader Bob Woolley of St. Paul, Minn. calls our attention to Durdahl v. City of Hastings, a Minnesota Court of Appeals decision filed May 17, which he summarizes as follows:

The plaintiff was a passenger in a car driven at excessive speeds by a drunk driver. The driver lost control and skidded into a parked semi-truck. The driver and one passenger were killed; two passengers survived with injuries. The case is one of those passengers suing the *city* for having granted a construction company permission to park its truck on the side of the road at a construction site. The city had done this because the site was too muddy for the truck to enter, and the volume of material to be loaded and unloaded made it impractical for the truck to park farther away. Obviously, that makes it the city’s fault that this woman’s driver was drunk and trying to take a 30 mph curve at 83 mph, right?

Fortunately, the court of appeals affirmed the sensible decision of the trial court, which was to dismiss the case.

Filed under: ,

Disabled docs’ demands

Gail Heriot (May 3), Erin O’Connor (Apr. 30), and Martin Grace (May 2) all comment on the case of Heidi Baer of Quincy, Mass., who having failed the medical boards three times is now suing the National Board of Medical Examiners under the Americans with Disabilities Act for not giving her extra time on the exam to accommodate her dyslexia. (J.M. Lawrence, “Med student’s dyslexia plea: I need time to pursue dream”, Boston Herald, Apr. 30). For more on ADA and test accommodation, see Jul. 21, 2004, Nov. 13, 2003 and links from there. In Connecticut, meanwhile, Dr. Benjamin Smith is seeking $2.5 million from Norwalk Hospital over alleged overwork and failure to accommodate his attention deficit disorder (ADD). The two sides dispute whether Smith was made to work beyond the 80-hour maximum that is supposed to be placed on residents’ workloads; Dr. Eric M. Mazur, chairman of the hospital’s internal medicine department, denies that the institution was insensitive to Dr. Smith’s needs, saying it “rearranged some of his schedules, reduced his patient load and put him on days instead of nights” and wound up terminating him for performance. He added what must count as one of the strongly worded statements of its kind we’ve seen in a while:

“The medical establishment is often accused of not policing itself, and not clearing out bad apples,” Mazur said. “It was the consensus of the faculty that his continued employment would endanger patient care.”

(Marian Gail Brown, “Doc asks $2m for overwork”, Connecticut Post, Apr. 21)(& welcome Grand Rounds XXXVI readers).

Filed under: , ,

UK recreation roundup

The Lincolnshire town of Boston has canceled its annual flower and craft show, a major tourist draw, because it believes the risk of litigation is too high to proceed without hiring licensed stewards at prohibitive rates. (Nick Britten, “Flower show wilts in blame culture”, Daily Telegraph, Apr. 16). In Scotland, “Schools across Renfrewshire have banned pupils from taking part in after-school football [soccer] over fears they would be sued for injuries. … They were banned because volunteer coaches were not covered by the schools’ insurance schemes for after-class games.” (“Legal fears prompt football ban”, BBC, Mar. 12)(via Greg Skidmore, Mar. 14). At the secondary school in Chippenham, Wiltshire, students kick around a soda bottle (presumably of plastic rather than glass) after the school banned conventional footballs from the recess field; at other schools, tag and marbles are now against the rules, and don’t think of touch rugby. “Lots of people just play with bouncy balls, but I suspect that’ll be banned too before too long,” says a 15 year old boy at Abbeyfield (Tony Freinberg, “Can we have our ball back, please?”, Daily Telegraph, Mar. 20). And: “Children have been banned from collecting chickens’ eggs at the National Trust’s showpiece farm [Wimpole Hall in Cambridgeshire] because it is now deemed by health and safety advisers as too hazardous.” (David Sapsted, “Trust bans children from egg collecting”, Daily Telegraph, May 17).

However, in a widely noted case, a swimming club seeking the right to take winter swims in ponds north of London in the absence of lifeguards won a victory in the high court against the Corporation [i.e., city] of London, which “had claimed that it risked prosecution by the Health and Safety Executive if it allowed unsupervised dips.” Mr. Justice Stanley Burnton

ruled that the corporation had fallen into legal error and said club members should be able to swim at their own risk. He spoke out in favour of “individual freedom” and against the imposition of “a grey and dull safety regime”, adding that by granting permission to the club the corporation would not be liable to prosecution for breaches of health and safety.

Mary Cane, chair of the Hampstead Heath Winter Swimming Club, said:

“This was a test case with wide implications for all open swimming in England and represents another successful attack by ordinary citizens on the nanny state and the cult of health and safety.”

Ms Cane said that the club was proud to have played its part “in re-establishing an important principle of personal freedom in this country, taken for granted everywhere else, that responsible adults must be free to decide for themselves whether to pursue recreational activities involving an element of risk”.

(Clare Dyer, “Hardy bathers win right to swim unsupervised”, The Guardian, Apr. 27; Joshua Rozenberg, “Pond swimmers win right to take the plunge”, Daily Telegraph, Apr. 27; “Take the plunge” (editorial), Daily Telegraph, Apr. 27).

Filed under: , ,

Alienation of affection suits

The North Carolina Bar Association is pressing to abolish the state’s unusual cause of action for alienation of affection, a carryover from common law days in a few states which allows a wronged spouse to sue the other spouse’s paramour for having broken up the marriage. The law is still sometimes used, and in fact damage awards have been escalating briskly in the Tarheel State, reaching $500,000 (later reduced) in a 1990 Forsyth County case and $1.2 million in a case eight years ago in the same county. “Most of the time, lawyers said it costs as much or more to try these kind of cases than the injured party stands to win,” and Raleigh family law practitioner Lee Rosen says he often discourages clients from filing such a suit because by poisoning the atmosphere it “destroys the possibility of future cooperation” on, e.g., custody matters. (Amanda Lamb, “Some Want To Get Rid Of ‘Alienation Of Affection’ Lawsuits”, WRAL, Feb. 2). See Nov. 16, 2004; May 18-21, 2000.

Filed under: , , ,

S.F.’s move to regulate bloggers

…is now officially dead, reports Bill Quick (May 16)(via Instapundit)(see Apr. 6). The Federal Election Commission, on the other hand, remains a threat, according to Redstate.org (May 20)(also via Instapundit)(see Mar. 17, Mar. 31). More on campaign finance law and free speech: Jonathan Rauch, “McCain-Feingold at Rest”, National Journal/Reason Online, May 9.

Filed under: , ,

“Lawyers pose health risk: study”

A team of researchers led by Richard Gun, visiting research fellow at Adelaide University, “has found patients who engage a lawyer after receiving their injury are five times less likely ever to return to work. He says they also appear to suffer more pain and for longer periods than accident victims who do not have lawyers.” Even allowing for an expected correlation between the two variables — persons with more serious injuries are presumably more likely to retain lawyers — legal representation appears to have an independent effect in prolonging the process of recovery, Sun says. (Nick Grimm, ABC News Online (Australian), Feb. 23 (summary); “Accident victims who hire a lawyer take longer to recover: study”, The World Today, ABC News Online (Australian), Feb. 23)(interview transcript); Gun et al., “Risk Factors for Prolonged Disability After Whiplash Injury: A Prospective Study”, Spine, Feb. 15 (abstract and $ link to study). For similar findings from a study published in the New England Journal of Medicine based on Saskatchewan data, see Apr. 24, 2000.

Filed under:

Students’ dance performance

Students at San Francisco’s Farragut Elementary School and an educational foundation are scrambling to raise funds to make it possible for students to perform a Congolese dance routine in the city’s May 29 annual Carnival parade. “In previous years, the school has supported the Foundation’s efforts financially, but this year, the school has withdrawn its support ‘[d]ue to liability concerns.'” (Sarah Rohrs, “Students step lively for Carnivale”, Vallejo Times-Herald, May 17)(via Common Good Society Watch).

Filed under:

Federal prosecutors probe silica/asbestos fraud

Major news on the asbestos front: the U.S. Attorney’s office for the Southern District of New York, one of the most powerful prosecutorial offices in the country, has convened a grand jury to probe allegations of fraud in the mass prosecution of silica and asbestos claims in Texas and elsewhere. In recent court proceedings in Corpus Christi, doctors admitted that they had never met or interviewed claimants for whom they had provided written diagnoses of silicosis, often after the same claimants had been accorded diagnoses of asbestosis. Federal judge Janis Graham Jack said one doctor’s testimony was raising “great red flags of fraud”. (Jonathan D. Glater, “Civil Suits Over Silica in Texas Become a Criminal Matter in New York”, New York Times, May 18). Ted Frank has been following the developing story in detail at Point of Law: Feb. 2, Feb. 17, Feb. 27, Mar. 2, Mar. 14, Mar. 16, Mar. 21, and other entries on that site’s asbestos page. This site’s product liability page has also extensively covered dubious litigation of this sort (examples: Jan. 21 and Aug. 5, 2004, Sept. 13 and Nov. 12, 2003 and earlier items).

Filed under: , ,