Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2008

The health costs of defensive medicine

There is no shortage of examples of medical malpractice litigation where plaintiffs blame doctors for failing to perform a CT scan. E.g., Oct. 2006 and Feb. 2004. This plainly raises costs far more than the direct costs of medical malpractice insurance that you see when the trial bar claims that malpractice reflects only 1-2% of health-care expenses. Tom Baker, among others, argues that defensive medicine has to be viewed as good with bad, because of improved health-care outcomes from the additional care. But not all defensive medicine is positive; it can be irrelevant, or, worse, adversely affects health results.

Malpractice litigation does change doctors’ incentives, but only with respect to short-term results. Because doctors won’t be sued for long-term consequences of defensive medicine, there is a substantial risk of overexposure to radiation in the course of defensive CT scans—a problem identified in a study in the latest issue of Annals of Emergency Medicine (Winslow, et al., Quantitative Assessment of Diagnostic Radiation Doses in Adult Blunt Trauma Patients; Reuters summary), finding that standard trauma treatment—1005 chest X-ray equivalents—results in an additional 322 cases of cancer per 100,000 treated because of use of CT scans. Earlier: Feb. 2004.

(Update: Walter writes in to note that “the problem of needless or avoidable CT and MRI scans has been getting a fair bit of discussion at the medical blogs lately, e.g. White Coat Rants, GruntDoc, and KevinMD.”)

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March 4 roundup

  • Judge allows lawsuit to go forward as class action claiming consumers defrauded because gasoline expands in summer heat and so there’s less in a “gallon” [KC Star, TodaysTrucking.com; earlier at PoL]

  • Online speech: when a lawprof says it silences someone not to let them sue for defamation, it’s time to check definitions [Reynolds, Bainbridge, Volokh]

  • Should a law school invite Lerach of all people to teach legal ethics? [Massey/Faculty Lounge; earlier] Plus: Congress should investigate how widespread Lerach-style abuses were at other law firms [Columbus Dispatch editorial]

  • Usually no one gets hurt when a physician dodges having to deal with a litigious patient, but then there are those emergencies [Brain Blogger]

  • A lesson for Canada: judged by results in places like Kansas, the American approach to hate speech (i.e., not banning it) seems to work pretty well [Gardner/Ottawa Citizen]

  • “Way way too egocentric”: a marketing expert’s critique of injury law firm websites [Rotbart/LFOMA via ABA Journal]

  • More students are winding up in court after parodying their teachers on the Internet [Christian Science Monitor]

  • Money in the air? It happens the quiet little Alaskan Native village suing over global warming is being represented by some lawyers involved in the great tobacco heist [NY Times]

  • Ninth Circuit panel hands Navy partial defeat in enviro whale sonar suit; ditto federal court in Hawaii [Examiner; earlier]

  • Le Canard Noir “Quackometer” flays pseudo-science, some of its targets complain to ISP which then yanks the site: “We do not wish to be in a position where we could be taken to court” [Orac; earlier]

  • Hans Bader guestblogged at Point of Law last week, on such subjects as: courts that decide punishment before damages; presumed guilty of child abuse? inconsistent straight/gay treatment in sexual harassment law; and signs that today’s Supreme Court doesn’t exactly show a pro-business bias in discrimination cases.

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Milberg expert Torkelsen pleads guilty to perjury

This looks pretty major, pattern-and-practice-wise:

John B. Torkelsen, a former expert witness for Milberg Weiss, has agreed to plead guilty to perjury, admitting he lied to a federal court judge in a securities class action case about how he was getting paid.

Prosecutors in the Milberg Weiss case have been eyeing Torkelsen for years.

I wonder whether this will put a crimp in the image rehabilitation op-ed stylings of Bill “My Only Sin Was To Love the People Too Much” Lerach. The implications could ripple out to other class-action firms as well: “In an announcement about the plea agreement on Thursday, prosecutors claim that Torkelsen was retained by several firms” and that the other firms engaged in misbehavior akin to that of Torkelsen’s handlers at Milberg. (Amanda Bronstad, “Former Milberg Weiss Expert Witness Agrees to Plead Guilty to Perjury”, National Law Journal, Feb. 29). Our earlier coverage of Torkelsen is here.

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College student’s fatal alcohol binge

Many defendants, including five of her friends as well as the inevitable bar, are to blame for not doing more to keep Amanda Jax from downing so much alcohol that night, according to the lawsuit by her family. (“Alcohol death: five times limit”, Mankato (Minn.) Free Press, Nov. 9; Dan Nienaber, “Lawyer: Civil suit coming in drinking death”, Mankato Free Press, Dec. 28; “The defendants and their alleged actions that night”, Minneapolis Star-Tribune, Feb. 28; Scarlet Raven, Feb. 29).

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McCain, thimerosal and autism

The Republican candidate sticks his foot in it in a major way on a topic extensively covered here over the years (as well as at my other site). Writes Mark Kleiman: “the thimerosal-autism theory is as dead as phlogiston in respectable company. I’m not surprised that ‘respectable company’ excludes a few ambulance-chasing lawyers looking for deep pockets and a some emotionally devastated parents looking for someone to blame. But it’s distressing — to use no stronger term — that the presumptive Republican nominee for President, rather than looking at the evidence, has chosen to side with the panic-spreaders and pander to the emotions of the panic victims.” More: Orac.

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Annals of chutzpah?

In Nova Scotia, Astrid Margaret Literski is locked in a battle with Revenue Canada over whether she is entitled to child tax benefit checks associated with her late daughter Eveleigh. Literski is incarcerated after pleading guilty to second-degree murder for killing the girl, then 4, in 2003. The tax agency says it wants back some of the money it sent Literski because it learned after the fact that the girl was actually living with her father, her primary caretaker, at the time. (Chris Lambie, “Killer mom fights to keep child tax credit”, Halifax Chronicle Herald, Mar. 1).

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Guestblogger thanks

Our thanks again to Peter Morin for his guestblogging last week. Don’t forget to check out his regular posts at Wavemaker. And if you think you might be interested in joining us for a guest week of your own — whether you’re an existing blogger or not — let me know at editor – [at] – thisdomainname.com.

American Airlines lawsuit: John Cerqueira responds

On Jan. 17 of last year and again on Jan. 11 of this year we ran posts discussing Cerqueira v. American Airlines, a lawsuit arising from the airline’s refusal to transport a passenger following erroneous fears that he was a security risk. John Cerqueira, the plaintiff in the case, has sent and asked us to publish a response, which follows:

My name is John Cerqueira and I am the plaintiff in Cerqueira v. American Airlines. I appreciate the opportunity to share my comments. Please allow me to (1) share the text of §44902 with this blog which was used by the appeal judges to overthrow the jury verdict; (2) tell my story about the original incident and 2007 trial; (3) comment on the results of the 2008 appeal.

Read On…

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Quasi-off-topic musing

Inconceivably beyond my frame of reference as an American: self-operated rides in a Denmark amusement park (as part of a larger travelogue on a very strange park, Bon Bon Land). Instructions are provided on signs: customers seat themselves, and the next person on line is supposed to press the appropriate button at the appropriate time to send a customer hurtling down a zip line.

It fascinates me how other cultures tolerate risk and reject idiot-proofing so much differently than the US. I wonder which way the causal arrow goes with the general litigiousness of American culture: are we litigious because we’re risk-averse, or are we risk-averse because we’re litigious? If the former, perhaps the European example actually reflects the moral hazard of social insurance. (Of course, other photos on the travelogue pages demonstrate other important differences between Denmark and the US.)

Related: Subcontinental Drift on zoos in Southeast Asia.

Update: Amusement-park-loving torts prof Bill Childs comments, which is appropriate, because the post was originally just going to be an email to Childs and a handful of other people before I realized there was no reason not to just expand it into a post.

Read On…

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March 1 roundup

  • Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]
  • Speaking of punitive damages, I did a podcast on Exxon Shipping v. Baker. I can’t bear to listen to it, so let me know how I did. [Frank @ Fed Soc]
  • Arkansas case alleged legal sale of pseudoephedrine was “nuisance” because meth-makers would buy it; case dismissed. [Beck/Herrmann]. This is why I’ve stockpiled Sudafed.
  • Lawyers advertise for refinery explosion victims before fire goes out. [Hou Chron/TLR]
  • Connecticut Supreme Court: cat-attack victim can sue without showing past history of violence by animal. [On Point] Looking forward to comments from all the anti-reformers who claim to oppose reform because they’re against the abrogation of the common law.
  • Op-ed on the Great White fire deep pockets phenomenon. [SE Texas Record; earlier: Feb. 2]
  • “FISA lawsuits come from Twilight Zone.” [Hillyer @ Examiner]
  • Legislative action on various medical malpractice tweaking in Colorado, Hawaii, and Wyoming. [TortsProf]
  • Request for unemployment benefits: why fire me just because I asked staffers for a prostitute? [Des Moines Register]
  • “So much for seduction and romance; bring in the MBAs and lawyers.” [Mac Donald @ City Journal; contra Belle Lettre; contra contra Dank]
  • Where is the Canadian Brandeis standing up for free speech? [Kay @ National Post]
  • In defense of lobbying. [Krauthammer @ WaPo]

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