Medical liability case selection

“Here’s one of their secrets: They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants — for physicians who seem unfeeling.” (Shirley Grace, “The Law: Trial Lawyers Tell All”, Physician’s Practice, Apr. 1 (via KevinMD).

More: Coincidentally, the Times covers the “medical apology” movement this morning: Kevin Sack, “Doctors Say ‘I’m Sorry’ Before ‘See You in Court'”, New York Times, May 18.

“Why Doctors Are Heading for Texas”

Tort reform, of course, resulting in substantially lower medical malpractice premiums and expenses, and an influx of 7000 doctors, including into many underserved regions. One indirect benefit: with less money spent on medical malpractice lawyers, self-insuring hospitals can spend more on doctors and on medical practice:

Take Christus Health, a nonprofit Catholic health system across the state. Thanks to tort reform, over the past four years Christus saved $100 million that it otherwise would have spent fending off bogus lawsuits or paying higher insurance premiums. Every dollar saved was reinvested in helping poor patients.

Also of relevance: the amusing results when Texas added evidentiary standards of medical harm to their asbestos and silicosis docket. Suddenly, over 99% of the cases went away because so few suing plaintiffs had a doctor willing to certify harm. (Joseph Nixon, WSJ, May 17). Related: POL Nov. 6, 2006 and POL Nov. 7, 2006, where I debate Texas law professor Charles Silver on these issues. Suffice it to say that the last year and a half has provided more support for my position than his.

Update: more data at Texas Medical Association website.

Overlawyering making America a laughingstock

Pulitzer-prize winning columnist Leonard Pitts Jr.:

Anna from Estonia mak[es] it a point to show visiting friends a sight they could never see in the old country. They laugh, they point, they whip out cameras and take pictures. Of the Everglades? No. Of Mount Rushmore or Lady Liberty? No.

Anna said they take pictures of the idiot signs. These she said, crack her friends up. “Caution: Coffee is hot.” Apparently, elsewhere in the world, you don’t need a sign to know this.

More on the deservedly infamous McDonald’s coffee case. Similar discussion: March 2.

Those share/save buttons; tagging posts

1) As part of our continuing WordPress transition and overhaul we’ve added those blue “Share/Save” buttons to the bottom of each post, but they seem to slow down the time needed for page loading, which had been so quick. On the other hand, we’d really like it if people used Digg, Delicious, StumbleUpon, etc. to let more people know about us. Are any regular readers likely to use this feature? Is there some simpler method of achieving this goal?

2) We’ve lagged behind the technology curve when it comes to tagging our posts, and we’ve now got years’ worth of archives with no tagging whatsoever, which handicaps both our outreach to new readers and our internal ease of navigation. Any suggestions on speedy ways to rectify this? Are there “social” tagging methods in which we can take advantage of readers’ each doing pieces of the job? Or assuming we can handle the security aspects, are there readers who’d like to volunteer to tag posts from within WordPress for us?

May 16 roundup

  • Polar bears on parade: “Lawsuits are not the best way to force the public into solving planet-size problems such as climate change.” [Christian Science Monitor editorial]
  • Jury convicts private investigator Anthony Pellicano, trial of entertainment lawyer Terry Christiansen set for July [Variety; earlier]
  • Knockoff sneakers differed from Adidas original in having two or four stripes instead of three, didn’t save Payless Shoes from getting hit with $304 million verdict [American Lawyer]
  • Following up on our discussion of municipal tree liability: Michigan high court OKs homeowner class action over sewer line damage from city trees [AP/MLive]
  • Attorney Franklin Azar, of Colorado TV-ad fame, says jury’s verdict ordering him to pay a former client $145,000 was really a “big victory” for him [ABA Journal]
  • Annals of tolling-for-infancy: “Dog bite 10 years ago subject of civil suit” [MC Record]
  • Feds indict Missouri woman for cruel MySpace hoax that drove victim to suicide: Orin Kerr finds legal grounds weak [@ Volokh]
  • “I blame R. Kelly for Sept. 11”: some ways potential jurors managed to get off singer’s high-profile Chicago trial [Tribune; h/t reader A.K.]
  • Update: “click fraud” class actions filed in Texarkana against online ad providers have all now settled [SE Texas Record; earlier]
  • Judge orders dad to stay on top of his daughter’s education, then jails him for 180 days when she fails to get her general equivalency diploma [WCPO, Cincinnati; update, father released]
  • Lawyers still soliciting for AOL volunteer class actions [Colossus of Rhodey; earlier]

Khadijah Farmer v. Caliente Cab Co.

A customer complained to the staff that a man was in the women’s restroom in the Greenwich Village restaurant Caliente Cab Co. Given the risk of multi-million dollar liability of failing to act in the face of a warning if a customer were assaulted by a man in the women’s restroom, a restaurant bouncer ejected Khadijah Farmer, Khadijah’s girlfriend, and a third in their dinner party.

Unfortunately for the restaurant, Khadijah Farmer was not a man, but an extraordinarily masculine-looking lesbian (who says she is mistaken for a man on a “daily basis”).

Further unfortunately for the restaurant, New York City has an unusual law prohibiting discrimination on the basis of “sexual stereotyping.” Further further unfortunately, Ms. Farmer wasn’t satisfied when the restaurant offered her a free meal in response to her complaint, and went straight for the lawyers. Further further further unfortunately, a top-tier law firm agreed to work the case “pro bono,” assigned three attorneys to it, and ran to the courthouse, even after the restaurant agreed to sensitivity training for its employees.

Let’s agree: the bouncer made a mistake and should have taken the opportunity to look at Farmer’s ID. Women shouldn’t be thrown out of women’s restrooms for looking like men, though one who looks as masculine as Farmer has to reasonably expect questioning unless we’re going to go the unisex bathroom route.

Damned if it does, damned if it doesn’t; up against a law firm using a bazooka to kill a mosquito; and in a neighborhood where being on good terms with the gay community is important for business relations, the restaurant, facing weekly pickets from the Queer Justice League, rolled over and settled for $35,000 + $15,000 in attorney’s fees, which will eventually be extracted from the restaurant’s clientele in the form of higher prices. (Jennifer 8. Lee, “Sexual Stereotypes, Civil Rights and a Suit About Both”, NY Times, Oct. 10; Jennifer 8. Lee, “Woman Wins a Settlement Over Her Bathroom Ouster“, NY Times, May 14; Andy Humm, “Calls to Boycott Caliente Cab Company”, Gay City News, Jul. 19).

I ate at the Caliente Cab Co. on Bleecker in the summer of 1988 when I lived on 12th and University; next time I’m inclined to eat there, I’ll let them throw me out of the restaurant for a fraction of what they paid Ms. Farmer. (Similarly: Gothamist commenters.)

The good news is that the legal problems of New York’s poor and non-profits have been so thoroughly resolved that a law firm can devote substantial pro bono resources to punitively harassing a small business over a bouncer’s not especially unreasonable misunderstanding, and has successfully trained a couple of young associates that they can file a lawsuit to extract tens of thousands of dollars over a $50 dispute. Do Morrison & Foerster’s clients know that this is the kind of litigation they’re subsidizing?

Previously on pro not-so-bono: October 2004.

Larry Sinclair v. Barack Obama

We had a request to post the District of Minnesota opinion dismissing the meritless Sinclair v. Obama litigation (discussed May 15), so I have uploaded the magistrate’s thorough report and recommendation in Case No. 08-cv-00360-JMR-RLE (D. Minn.).  Sinclair failed to file objections to the February 25 report, and Judge James M. Rosenbaum adopted it in a summary order dated March 19, issuing final judgment the same day.

Note that the magistrate applied 28 U.S.C. § 1915(e)(2)(B)(i) to dismiss the plainly frivolous case sua sponte without requiring the victimized defendants to expend legal fees in responding; in December 2006, I discussed the underuse of this provision in pro se litigation.  More on delusional pro se cases.