As if trial lawyers didn’t already have enough good friends in the U.S. Senate, Democratic challenger and former state attorney general Sheldon Whitehouse is making a strong bid to unseat incumbent Lincoln Chafee for a Senate seat from Rhode Island. (Jim Baron, “Poll: Senate race even; Gov. surges”, Pawtucket (R.I.) Times, Oct. 3; “Democrats bet on former attorney general to take back Senate seat”, AP/WPRI, Sept. 14). Of the fifty state attorneys general, Whitehouse was the only one willing to sign up for the Motley Rice law firm’s crusade to attach retroactive liability to former makers of lead paint and pigment; see Jun. 7, 2001, Oct. 30-31, 2002, Mar. 5-7, 2003, Feb. 23, 2006, etc. For more on Whitehouse’s enthusiasm for such creative litigation, see Oct. 26, 1999 (latex gloves).
Archive for 2006
$217M stroke verdict on the radio
Some time after 1PM Eastern, I’ll be on “The Buzz” on WBAL-1090-AM (Baltimore), discussing the $217M stroke verdict (covered Oct. 5 and Oct. 7).
Update: Well, I was told we were going to be talking about the stroke verdict, but the host wanted to argue about the McDonald’s coffee case instead. Chip Franklin could not be dissuaded from the idea that coffee “should not” cause third-degree burns, and that McDonald’s must have done something wrong, but courts note that even coffee served below the optimum temperature are capable of such burns.
Florida reform in trouble?: Jeff Kottkamp
Florida has staggered towards reform in the last few years under Governor Jeb Bush, bush GOP candidate Charlie Crist’s running mate, Jeff Kottkamp, is a trial lawyer, reform opponent, and plaintiff in a ludicrous suit blaming a hospital construction contractor for medical complications he had following heart surgery. (John Kennedy, “GOP candidate breaks rank on tort reform”, Sun-Sentinel, Oct. 5) (via Childs). Earlier coverage: Sep. 18 and links therein.
Elsewhere in Florida, the Florida Supreme Court has essentially undone a 2004 reform voters passed in a referendum (Nov. 3, Mar. 1: it will allow attorneys to avoid the effect of a constitutional amendment capping medical malpractice attorneys’ fees, so long as their clients sign a waiver saying they’re willing to pay more. (Aaron Deslatte, “Court lets lawyers bypass lawsuit cap”, Tallahassee Democrat, Sep. 29). I actually applaud this step to the free market, but just wish doctors had the same rights to get their patients to sign waivers. Apparently courts and consumer advocates are willing to trust only lawyers with the freedom of contract or speech.
“Illegal immigrants sue Wendy’s”
“A group of illegal immigrants who worked for Wendy’s International Inc. is suing the restaurant chain because the company fired them after discovering it had missed a deadline for joining a federal program that would have helped them attain legal status.” (Rasha Madkour, AP/Houston Chronicle, Oct. 6).
More: the restaurant company blames a series of “mistakes made by others” that began before it bought the Cafe Express chain. In particular, Houston-based business law firm Boyar & Miller failed to take steps needed to enroll workers in the program. Commenter David Schwartz points out:
It might be worth noting that the employees *paid* to partipicate in the program. Surely if I pay my employer for legal services and I don’t get them, either my employer or their law firm is at fault, no?
Isn’t missing a filing deadline a classic example of attorney malpractice?
Update: Blaming banks for terrorist attacks
U.S. District Judge Charles P. Sifton in Brooklyn has denied motions to dismiss lawsuits which seek to blame Credit Lyonnais of France and National Westminster Bank of the United Kingdom for terrorist bombings in Israel linked to Hamas; the banks handled funds for charities which channeled funds to Hamas. Credit Lyonnais “[vainly] cited investigations in France that cleared the group of any wrongdoing.” (“U.S. judge refuses to dismiss terror finance suit vs French bank”, AP/International Herald Tribune, Oct. 5). Ted covered the lawsuits on Jan. 6 and Feb. 24 of this year.
More on the Allan Navarro $217M verdict
Kevin MD reviews the medicine behind the Navarro stroke case (which we covered Oct 5/6), and finds a lot of 20/20 hindsight second-guessing. One commenter adds:
The scary thing to me and many ER physicans about cases like this is that outside of the diploplia I probably see 3-4 patients like this a week and usually send them home with or without a Head CT. When we read cases like this we thing “Thank God it wasn’t me” and realize these cases are bound to eventually happen to us too. I see 3-4 patients an hour I CANNOT decrease that to 0.5-1.0 patient an hour and get a specialty consult on every single patient.
Once again, a verdict that deters practice, rather than malpractice.
(Update, August 2007: case settles.)
Jackpot justice: $20M for $25,000 insurance claim
Ted Fields was injured in an auto accident with Jimmy Woodley; Woodley’s insurer went bankrupt, so Fields, on January 30, 1997, asked Allstate to pay $25,000 in medical bills and lost wages. Allstate sent Fields forms to fill out, and he did so three weeks later; when Allstate didn’t pay instantaneously, he sued them in March 1997 for bad faith. Fields turned the discovery process into a far-reaching investigation of all of Allstate’s claim procedures; the judge refused to constrain irrelevant deposition questioning, at which point in 1999 Allstate offered Fields the full amount of his $50,000 policy limit rather than waste hundreds of thousands in trial. Fields refused; his attorneys filed several separate motions of default rather than litigate the underlying issues after the trial court denied a summary judgment motion. An appellate court found that Allstate was entitled to summary judgment because of the lack of any evidence of bad-faith in responding to Fields’s claims; the Indiana Supreme Court overturned that ruling on a procedural technicality that the appeal was premature.
The trial court ruled that Allstate was not allowed to present evidence that it was not liable for actual or punitive damages or that it acted “with anything other than dishonest purpose, moral obliquity, furtive design, and/or ill will.” A jury, hearing this one-sided sham of a trial, awarded $20 million in damages, though one would hope the Court of Appeals, hearing a timely appeal, makes the same decision it made before. Press coverage fails to mention that Allstate wasn’t allowed to defend itself at trial; the plaintiff told the jury that the dispute caused high blood pressure, heart problems, and a stroke, though then the question becomes why he isn’t suing his attorney. (Ken Kosky, “Valpo man wins $20 million verdict v. Allstate”, Northwest Indiana Times, Oct. 6).
Oz: Government will appeal aboriginal land win
Following up on our Sept. 22 post: Australia’s Attorney General Philip Ruddock says his office will appeal against a judge’s award of extensive public land holdings in and around the city of Perth to aboriginal tribes. (Amanda Banks and Rhianna King, “Ruddock confirms native title appeal as State payout tipped”, The West Australian, Oct. 6; Stephanie Peatling, “Ruddock to challenge native title ruling over Perth”, Sydney Morning Herald, Oct. 6; Ben Martin and Amanda Banks, “Hills parks open to native title: judge”, Oct. 4).
Salonquest scare letter: photos of our products violate our copyright
Public Citizen Litigation Group’s Greg Beck blogs a refutation though, alas, he doesn’t single out the attorney who makes the absurd claim. Beck notes the problem:
Even if a claim like Aquage’s is without legal merit, however, many small online sellers who receive a threat like this would rather cut their losses and back down than risk a lawsuit. It’s usually not worth hiring a lawyer when you are only hoping to make a few bucks off the sale in the first place.
Indeed.
Jackpot justice: $217M for misdiagnosed stroke in Florida
[Bumping October 5 9AM post to reflect new details.]
$100.1 million in punitive damages, and the “compensatory” award is almost certainly mostly non-economic damages, though the press coverage does not distinguish. (Thomas W. Krause, “Jury Puts Punitive Award At $100 Million”, Tampa Tribune, Oct. 3). TortsProf blog, Peter Lattman, Kevin MD, and Greedy Trial Lawyer comment. So no one accuses us of unfairness, we’ll repeat the GTL summary of the case:
ProAssurance’s subsidiary, ProNational Insurance Co., was the malpractice insurer for a doctor’s group running a Tampa area hospital emergency room where patient Allan Navarro’s stroke was misdiagnosed by an unlicensed physician’s assistant as a headache and sinus infection.
[Plaintiffs’ attorney Steve] Yerrid told the Tampa newspaper he tried to get the insurance company to settle for the maximum allowed under the policy – $1 million for the doctor and $1 million for the physicians’ group. Instead, he said, the insurance company wanted to settle for $300, offering $100 for Navarro, $100 for his wife and $100 for his 10-year-old son.
Update: Daily Business Review has a more detailed summary than the mainstream press:
On Aug. 9, 2000, Navarro, who was a professional basketball player in his native Philippines, entered University Community Hospital-Carrollwood with a headache, nausea, dizziness, confusion and double vision. He described a personal medical history of hypertension, diabetes and elevated cholesterol plus a family history of strokes to the triage nurse. A different nurse than the triage nurse also noted he was unsteady on his feet.
When Navarro spoke with Herranz in the examination room, he mentioned the sudden onset of a headache earlier that day and that he had felt a “pop” in his head.
According to the 2005 second amended complaint, Herranz did not complete an adequate medical history of Narvarro, nor did he do a complete or adequate neurological exam.
Navarro spent about 5 1/2 hours at UCH-Carrollwood, during which time he had two CT scans of his brain and was diagnosed with “sinusitis/headache” by Austin, prescribed Vicodin for the pain and an antibiotic by the doctor and sent home. He was not told to watch for any stroke symptoms.
The suit alleged that Navarro presented classic stroke symptoms that Austin should have noticed. It further said that CT scans are not adequate diagnostic tools for ruling out the type of stroke Navarro had.
Early the next morning, Navarro woke with a severe headache, slurred speech, nausea, confusion and trouble walking. He was readmitted to the UCH-Carrollwood Emergency Room at 6:05 a.m. Upon his return, he was labeled “urgent,” but doctors still had not diagnosed a stroke. It wasn’t until he was transferred to Carrollwood’s sister hospital, UCH-Fletcher, that afternoon that surgery was finally performed. By then, the stroke had already left him paralyzed with mental disabilities. During surgery, he slipped into a four-month coma. He is now confined to a wheelchair.
(Rebecca Riddick, “Judge Halts Defendants’ Bid to Avoid $116M Med-Mal Verdict”, Oct. 6).
Multiple issues here: