Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for September, 2005

“Doctor says FEMA ordered him to stop treating hurricane victims”

By reader acclaim:

In the midst of administering chest compressions to a dying woman several days after Hurricane Katrina struck, Dr. Mark N. Perlmutter was ordered to stop by a federal official because he wasn’t registered with the Federal Emergency Management Agency. “I begged him to let me continue,” said Perlmutter, who left his home and practice as an orthopedic surgeon in Pennsylvania to come to Louisiana and volunteer to care for hurricane victims. “People were dying, and I was the only doctor on the tarmac (at the Louis Armstrong New Orleans International Airport) where scores of nonresponsive patients lay on stretchers. Two patients died in front of me.

“I showed him (the U.S. Coast Guard official in charge) my medical credentials. I had tried to get through to FEMA for 12 hours the day before and finally gave up. I asked him to let me stay until I was replaced by another doctor, but he refused. He said he was afraid of being sued. I informed him about the Good Samaritan laws and asked him if he was willing to let people die so the government wouldn’t be sued, but he would not back down. I had to leave.”

In a formal response to Perlmutter’s story, FEMA said it does not accept the services of volunteer physicians:

“We have a cadre of physicians of our own,” FEMA spokesman Kim Pease said Thursday. “They are the National Disaster Medical Team. … The voluntary doctor was not a credentialed FEMA physician and, thus, was subject to law enforcement rules in a disaster area.”

However, Perlmutter says once back in Baton Rouge his group

went to state health officials who finally got them certified — a simple process that took only a few seconds.

“I found numerous other doctors in Baton Rouge waiting to be assigned and others who were sent away, and there was no shortage of need,” he said.

(Laurie Smith Anderson, The Advocate (Baton Rouge), Sept. 16; Toby Harnden, “‘I could have saved her life but was denied permission'”, Daily Telegraph (UK), Sept. 18).

Read On…

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Thanks, Palmer & Dodge

For stepping forward to represent the prison grievances of one of Massachusetts’s most infamous killers, Daniel LaPlante, supposedly on a pro bono basis; for your skill at turning into a civil rights claim LaPlante’s complaints that jailers were intercepting the pornographic pictures he was being sent in the mail, and that a guard had stolen his shower shoes; and for the smoothness with which you turned your supposedly pro bono efforts into a profit opportunity after you prevailed, submitting a $125,000 bill to state taxpayers of which federal judge Nancy Gertner approved $99,981. “We did it as efficiently as we could,” claimed George Olson [no relation], a partner at the elite Boston firm. “When we took the case, we didn’t expect to be compensated.” Thanks for that too! (Brian McGrory, “Injustice for almost all”, Boston Globe, Sept. 16).

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Update: feds to retry Miss. corruption case

Some things even the hurricane isn’t going to stop: “The federal government announced Friday that it will retry Coast attorney Paul Minor and two former judges he is accused of bribing.” (Geoff Pender, “Government to retry judicial bribery case”, Biloxi Sun-Herald, Sept. 16; Jimmie E. Gates and Jerry Mitchell, Jackson Clarion-Ledger, Sept. 17). See Aug. 15, Aug. 12, etc.

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“Lawsuit blames oil companies for hurricane damage”

The AP reports that a “lawsuit seeks what attorneys say could be billions of dollars from a long list of oil companies for damages to wetlands that allegedly would have softened Hurricane Katrina’s blow.” Attorneys from the New Orleans firm of St. Martin & Williams are seeking class-action status on behalf of all persons and entities in Louisiana that suffered injury from Katrina’s wind and storm surge. They’re naming as defendants 11 oil and gas companies including Shell Oil, ExxonMobil, Chevron and BP Corp. whose activities they say depleted marshlands, including by building and neglecting pipeline canals. (AP/Shreveport Times, Sept. 17; “Class-action suit filed against oil companies”, BizNewOrleans.com, Sept. 15).

Meanwhile, environmental litigation over the years aimed at slowing levee and flood-control projects could come under Senate scrutiny, despite peals of protest from the Sierra Club, Sen. Chuck Schumer and others (Dan Eggen, “Senate Panel Investigating Challenges to Levees”, Washington Post, Sept. 17; Jerry Mitchell, “Senate panel investigates levee lawsuits”, Jackson Clarion-Ledger, Sept. 17). See Sept. 9, Sept. 14 (& Baseball Crank).

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The question of unisex bathrooms

Blogger Amber points to the tale of a transsexual survivor of Katrina being arrested for using the woman’s room and asks “Why not have unisex bathrooms?” One obvious reason is that, in commercial establishments at least, unisex restrooms present a stronger risk of alienating customers with a preference for the single-sex model than vice versa. Still, social mores have changed in some places, and the architecture hasn’t caught up.

Here, I suspect there are liability-related reasons. The first innovator to create a unisex bathroom and be unfortunate enough to be the scene of a sexual assault in the bathroom is going to be sued for not conforming to the standard practice. So there’s a collective action problem even to the extent that institutions wish to create unisex restrooms. (The uber-trendy bar and restaurant Mie N Yu in Georgetown has a unisex bathroom, but they have a full-time attendant.)

Read On…

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Wall Street Journal on patent trolls

All sorts of interesting reporting on the news side of the subscriber-only WSJ:

In one of Douglas Fougnies’s early business ventures, he provided phony new-vehicle titles for stolen cars. His partner, Larry Day, is a onetime blackjack dealer in Las Vegas.

Together, the two men have found a more lucrative line of work: suing cellphone companies for patent infringement. Earlier this year their company — which consists of four employees and six patents — won $128 million in damages from Boston Communications Group Inc. and four other companies over alleged misuse of a 1998 patent.

Suing can be as lucrative as manufacturing as a way to profit from a patent, sometimes a lot more so:

Lured by the potential returns, hedge funds and other institutional investors now are bankrolling businesses that buy up patent portfolios. More law firms, including some branching out from product-liability and malpractice work, are taking patent cases on a contingency basis. That means the law firms are paid a percentage of any damages awarded but little or nothing if the patent-holder loses.

(William M. Bulkeley, “Aggressive Patent Litigants Pose Growing Threat to Big Business”, WSJ, Sept. 14)(sub). For more, see Sept. 1, May 2 and many other entries on our technology/intellectual property page.

In a major development, however, the federal judiciary seems to be ringing down the curtain on the most successful and controversial patent-prosecution shop of all time (Aug. 23, etc.): “After hundreds of companies paid inventor Jerome Lemelson more than $1.5 billion in licensing fees, the U.S. Court of Appeals for the Federal Circuit has concluded that his patents aren’t enforceable after all. The Federal Circuit ruled Friday that Lemelson’s 18- to 39-year delay in prosecuting patent claims relating to machine vision and bar-code technologies was unreasonable.” (Brenda Sandburg, “Lemelson Patents Ruled Unenforceable”, The Recorder, Sept. 13; Dennis Crouch, Sept. 9; IP Litigation Blog, Sept. 11; David Jacobs, MassLawBlog, Sept. 15; TechDirt, Sept. 12; LemelsonInfo.com; AP two-part series reprinted in Miami Herald, Aug. 20 (part I) and Aug. 21 (part II)).

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Oz lawyers: let’s sue docs who are late for appointments

Australia’s ABC network discusses the idea (“Law group suggests legal action over late doctors”, Sept. 13) as do KevinMD’s commenters (Sept. 13). It’s not actually new, though: a Nevada patient filed an action in small claims court two years ago after having to wait three hours to see his doctor (see Aug. 1, 2003). That case, as a news search reveals, was settled when the doctor agreed to write a letter of apology and donate to charity (Joelle Babula, “Letter ends lawsuit, patient says”, Las Vegas Review-Journal, Sept. 24, 2003)(other coverage in same paper).

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Katrina: “Lawyers Planning a Deluge of Hurricane Damage Lawsuits”

Glad to see the bar’s priorities are in order. “At least one suit was filed in the last week, and plans were being sketched out for many more. The targets include real estate agents, insurance companies and federal agencies. The potential damages being sought range from a few thousand dollars to billions of dollars.” One plaintiff’s law firm is suing a real estate agency under price-gouging statutes because a homeowner raised the price of his Baton Rouge house over the old list price, which can’t be a comforting thought for anyone who owns real estate in a rising market. Others, including the infamous Dickie Scruggs, seek to sue insurers in “thousands of suits,” arguing that flood exclusions in policies do not apply because a house totallly destroyed by a flood was partially damaged by wind, and that the insured should get the full amount. A Houston Chronicle article underplays the risk. (Joseph Menn, LA Times, Sep. 15; Brett Martel, AP/Seattle Post-Intelligencer, Sep. 14; Mary Flood (!), “Storm lawsuits a long shot”, Houston Chronicle, Sep. 15).

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