Archive for August, 2006

“Untested Conspiracy Theory Seeks to Expand DUI Liability”

“If an untested and novel legal theory succeeds, the wife and brother of a binge drinker with a string of drunken driving arrests could be held civilly liable for the death of a bicyclist because they supplied the car, insurance and alcohol to the driver. …The suit seeks damages from the wife and bar owner/brother of Joseph Lynchard, 74, of Santa Rosa, Calif.” According to plaintiff’s lawyer Patrick Emery, “Lynchard’s wife transferred all his assets to her name after an earlier accident and got him auto insurance. His brother, owner of Eddie’s Bar, bought Lynchard a pickup truck and supplied him with drinks the day of the accident. All this, Emery argues, shows a conspiracy to commit an illegal act, allowing Lynchard to drive while drunk.” A judge has allowed the suit to proceed to discovery. (Pamela A. MacLean, National Law Journal, Aug. 15).

“Legislating Discovery” Pop Quiz

Which of the following was recently uttered by a Member of Congress?

“Cutting-edge research by top scientists from the United States and Israel could…”

a) discover a cure for cancer.
b) locate Noah’s Ark.
c) reduce our reliance on foreign oil.
d) prove the existence of an Intelligent Designer.
e) find a way to end world hunger.

Oh, and if you need a reason to care, is $20 million of taxpayer money annually reason enough?

My previous post on the folly of trying to “legislate discovery” here.

Via Coyote Blog.

European Court Denies Proactive Request for “Food & Water” Order

There but for “the grace…” —

A man with an incurable brain condition has lost his final legal appeal to insist that doctors give him food and drink in the final stages of his life.

Leslie Burke, from Lancaster, feels he will be denied sustenance when his illness makes him unable to speak.

The European Court of Human Rights said it did not believe there was a real threat that his food would be stopped. The European judges refused to reverse a UK ruling that allows doctors to decide a patient’s treatment.

Mr Burke, 46, has Friedreich’s ataxia. It causes a lack of co-ordination, but does not affect mental faculties.

This is certainly not the forum to reopen the Terri Schiavo affair — my posts are the subject can be found at this chain. And I have remained on the sidelines regarding the teenaged cancer victim who was almost forced to undergo debilitating and painful chemotherapy against his will.

I’ll simply note that I consider it axiomatic that food and water are, um, food and water and not “medical care” in the strict sense. And that knowingly permitting a patient under your care for Friedreich’s ataxia to die against his wishes — not of Friedreich’s ataxia, but of dehydration — is homicide.

Discuss.

(Via Medpundit.)

Perhaps the European courts are correct and Mr. Burke’s litigation was simply not ripe, as we say in the U.S. And perhaps a properly drafted “living will” would preempt any issues or concerns.

On the other hand, a legally recognized spouse would certainly also address those concerns. Generally speaking, when there is any uncertainty, a spouse has the final say about medical decisions when the patient cannot communicate. No living will necessary. Advisable, but not strictly necessary.

Just one of the more than 1,000 ways in which gays suffer in the name of “defending traditional marriage.”

It’s absolutely barbaric.

NJ court: No warning that one might fall out of loft bed required

Donald Mathews, a Stockton State College senior living on campus, woke up in the middle of an October 11, 1999, nap and fell out of bed, injuring himself. For this, he blamed the manufacturer of his loft bed for failing to warn that people might hurt themselves by falling out of bed. A jury agreed, and awarded $179,001.

(Because Mathews claimed that he fell out of bed because he was startled, it’s not clear how a warning would have helped, unless he was seeking an audible recording regularly repeating, much like airport moving walkways, “Caution! The bed is above the ground!” Of course, this might interfere with sleep, but wakefulness is watchfulness.)

A unanimous appellate state court reversed on the obvious grounds that the danger was open and obvious and didn’t require a warning (the same grounds on which the McDonald’s coffee case should have been thrown out), but plaintiffs’ lawyer Gary Piserchia threatens an appeal to the New Jersey Supreme Court. (Robert Schwaneberg, “Suit over loft bed falls short”, Newark Star-Ledger, Aug. 16, via Lattman).

The Return of the Coffee Tort

Where’s Ted Frank when you need him?

A bad experience at Starbucks turned into big bucks — 301,000 of them — for a Manhattan lawyer who got a painful hotfoot when a steaming cup of coffee toppled onto her at the java palace.

“I jumped back and looked down,” Alice Griffin, 42, testified. “My foot was steaming, and the puddle was steaming.”

The jury’s April verdict was upheld yesterday by [New York] Supreme Court Justice Emily Jane Goodman — even though the jurist said she was “inclined to agree” the $301,000 that Griffin won at trial “was excessive.”

Gee, absolute deference by a judge. Go figure. I guess remittitur (let alone JNOV) would be “judicial activism.”

In any event, I’m far too humble to blog about hot coffee lawsuits at this site.

Maybe Ted will make a cameo today… [Editor’s note: And he did.]

On Bloomberg’s “Beneficence”

Walter beat me to the punch regarding the announcement that New York City Mayor Michael Bloomberg plans to donate contribute up to $125 million to anti-smoking efforts.

Why the strikethrough?

His effort will include cash for programs that help smokers quit and educate children to prevent them from starting; funds to push for smoking bans and higher tobacco taxes in other cities, states and countries; and money for a system to track global tobacco use and the effectiveness of anti-smoking efforts.

Excuse me, but that’s not “charitable giving.” That’s lobbying.

And I would hope that this portion of Bloomberg’s “benevolence” is therefore appropriately regulated, registered, disclosed, limited, taxed, McCain-Feingolded and generally treated the same way as anyone else’s attempt to buy a law under our current schizophrenic political funding system.

My previous thoughts on campaign finance reform here. A related thread on the abuse of tax exemption by politically active religious leaders and institutions here.

“The Lieberman Purge”

Off-topic, I add to the punditocracy’s surfeit of blather on the Connecticut Senate election at National Review Online.

One thing I didn’t mention in the article that is on topic for this site is that Lieberman is one of the few prominent federal Democrats still in office that is generally willing to stand up to the trial bar. If Lamont does supplant Lieberman, the trial-lawyer takeover of the Democratic party (commented on a year ago by Walter) will be all but complete.

Update: Walter reminds me of his 2000 Wall Street Journal op-ed on Lieberman’s record on liability reform.

Bloomberg’s anti-smoking philanthropy

Gotham’s nurse-mayor has donated $125 million from his personal fortune “to track smoking across the globe and to push for the same kind of smoking bans and cigarette tax hikes that the mayor has implemented in New York since taking office in 2002”. New York Sun reporter Jill Gardiner quotes me in reaction (“Bloomberg Gives $125 Million Gift To Fight Smoking”, Aug. 16).

On “Malpractice Plaintiff” Databases

As consumers, we increasingly have ever more access to information about the enterprises that we may wish to do business with. In the beginning there was the Better Business Bureau, then Zagat Surveys, then BizRate, then online reviews from Amazon, Expedia, iTunes, etc.

In the medical field, patients had indicia such as board certifications and hospital privileges when choosing physicians. There are also services that collect data on malpractice lawsuits — you probably don’t want to retain a doctor (or a lawyer, for that matter) who has lost too many malpractice cases.

Fair enough. But what happens when the professionals turn the tables?

In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.

The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney.

Note: The urls “http://www.LitiPages.com” and “http://LitiPages.com” seem to be inactive. Go figure. I guess we now have to treat this post as a hypothetical. Walter blogged about a similar service long ago.

Let’s clearly delineate the two separate concerns here. I will leave to others (Walter?) the task of explaining why a lost lawsuit is not automatically, or even presumptively, a malpractice claim against your attorney.

Read On…

“Teen Sues Mother for ID of Father”

“In a case that family law experts fear could set a dangerous precedent, a Michigan teenager is suing his mother to learn the identity of his father. Family law attorneys say the issue of compelling a mother to reveal the identity of the biological father is a new area of law. And depending on how the Michigan judge rules in the case, they say, courts nationally could see a new flood of lawsuits of children suing their parents.” (Tresa Baldas, National Law Journal, Aug. 11).