What can the Able Danger allegations teach us about the liability crisis? I have an article at National Review Online that discusses the two. Walter discussed the Greyhound case further on August 18.
“Why granny is in an old age home”
It would make sense to hire a home attendant for her — but then California labor law would kick in. Among the perverse features of that law: to qualify as a personal attendant whose employment is not subject to prohibitive wage-hour laws, a round-the-clock attendant must not be asked to carry out such duties as getting the client to take her medicines (that’s reserved for nurses, you see). (Bookworm Room, Aug. 17).
Sell gas to drunks, pay for their crashes
“The [Tennessee] Supreme Court has ruled that store owners can be sued for causing injuries in a drunken driving accident if they sold gas to an intoxicated driver.” Employees at an Exxon station on Rutledge Pike in Knoxville allowed Brian Lee Tarver to buy $3 worth of gas and even helped him pump it when he seemed unable to work the controls. Victims of his subsequent drunk-driving crash sued the station. “A University of Tennessee professor later determined that Tarver’s vehicle would have run out of gas before encountering West and Richardson if he had not been able to buy more fuel.” Will gas station employees, like bartenders, now need training on how to recognize signs of inebriation? And what are the justices planning to do about card-swipe self-service? (“State’s high court rules stores liable for selling gas to drunks”, AP/WVLT, Aug. 22; Jamie Satterfield, “Ruling says gas stations liable”, Knoxville News Sentinel, Aug. 22)(intrusive registration).
P.S. Here’s the opinion (PDF), courtesy reader Jay Johnson. And CoyoteBlog comments (Aug. 26).
Defensive medicine files
Who says there’s no defensive medicine? There’s always a fun discussion of such at the comments section of Kevin MD. One doctor:
I do that all the time. I tell my patients: “I don’t think you need a CT scan, but I’ll recommend it for liability purposes”.
Or “I don’t think you’re having a heart attack, but because of liability purposes, I recommend going to the ER”.
And another, who thinks the first isn’t being defensive enough to avoid litigation:
You’ve got to be careful how you word “I don’t think you’re having a heart attack”. On our AMA forms, it’s very specific: “You are at risk of death” if you don’t follow our recommendations. On the inside I know it’s alot of crap, that there’s nothing wrong with the patient, but I have only a million of coverage to back me up on this, so on the outside, I have to act like it’s a life or death situation they are admitted for their bogus chest pain.
Then a third chimes in to say that the second is fooling himself:
I’ve actually had a malpractice lawyer laugh and tell me how easily he can blow through an AMA form in court like it’s not even there, so even that doesn’t protect us against the sharks.
Heavy metal chicken band ad
Burger King Corp. has asked a federal court in Miami “to declare that the use of a mock heavy metal band featuring performers wearing chicken masks does not violate any rights” of the heavy metal band Slipknot, whose lawyers had fired off a cease and desist letter to the burger operator and its ad agency over the ad in question. “The Coq Roq band is a mock heavy metal band that is markedly and obviously different from Slipknot except for the generic fact that both play heavy metal music and wear masks,” according to the fast-food chain’s filing. (“Burger King takes ad dispute to court”, Orlando Sentinel, Aug. 21; Charlie Amter, “Slipknot Seeks to Block BK’s Coq”, E!Online, Aug. 18)(with ghastly photos))
“Doctor in trouble for calling patient obese”
By popular demand: the New Hampshire Board of Medicine is asking the attorney general’s office to investigate a complaint by a woman that Dr. Terry Bennett told her she was obese. Because the complaint is confidential, and news coverage has only told Bennett’s version of the story, there may be more to this tale than the seemingly absurd situation of possible government sanction for providing truthfully blunt and important health information to a patient suffering from a potentially life-threatening condition. But if the reporting is accurate, it would seem to be another piece of evidence that contradicts the frequent excuse of tort-reform opponents that aggressive medical malpractice lawsuits are needed to compensate for under-vigilant medical boards. (AP/MSNBC, Aug. 24).
Racial discrimination in jury selection
A Dallas Morning News investigation documents the degree to which it’s been second nature to lawyers on both sides in Texas criminal trials to exclude on the basis of race. Among highlights: the unique “Texas shuffle” technique used to give lawyers an advance peek at the race of prospective panelists; and the taxpayer-funded database that allows prosecutors to identify persons who have previously served on juries in cases which ended in acquittals, so as to keep those persons off future panels. (“Striking differences”, 2005 series (reg))(via Mike Cernovich).
Deep Pocket Files: Taxpayers responsible for porch collapse?
You may recall the unfortunate collapse of a Chicago porch at a party that killed thirteen and injured 57. Of course there are lawsuits against the building owners and the contractor who built a porch that couldn’t support 70 people. But the plaintiffs’ attorneys recognize that that insurance and the defendants’ underlying assets will run out quickly. Thus, they have sought to join the city of Chicago as a defendant for allegedly failing to enforce building codes. (Because, as anyone who has lived in Chicago knows, what that town needs is more city workers.)
John Ehrlich, the city’s chief assistant corporation counsel, told Cook County Judge Jeffrey Lawrence that if he didn’t drop the city from the lawsuit, it could lead to suits against other cities for everything from bad restaurant food to house fires.
“That makes the city of Chicago an insurer for every single bad incident that occurs on private property. And it makes every city — every municipality in the state — an insurer for every bad incident” that happens, Ehrlich said. ”If you allow that to happen, you will have [the] bankruptcy of every single municipality and local government in the state. That is simply untenable.”
(Nathaniel Hernandez, “Porch suit threatens Illinois cities: lawyer”, Chicago Sun-Times, Aug. 24).
Litigation-driven surgery
Another cost of the litigation system not measured by the Tillinghast Towers Perrin study: pregnant women across the country are being required to undergo unnecessary C-sections so the doctors can avoid John-Edwards-style demagoguery in the event of pregnancy complications. C-sections now comprise 27.6% of pregnancies, and the cerebral palsy rate hasn’t declined at all.
Doctors and hospitals say they fear lawsuits if they allow a patient to attempt a vaginal birth after a C-section — called a VBAC — and something goes awry.
“We think the risk is more of a legal risk than a medical risk,” acknowledges Bob Wentz, CEO of California’s Oroville Hospital, which banned VBACs two years ago.
Thomas Frank asks what’s the matter with Kansas: it might be that a woman wanting to avoid a C-section has to travel 280 miles to find a hospital that will allow a VBAC. (Rita Rubin, “Battle lines drawn over C-sections”, USA Today, Aug. 23).
Violent teen only 30 percent at fault for his crimes
His affluent parents bear the other 70 percent of the fault, a Cincinnati jury decided, as they awarded $10 million to victim Casey Hilmer and her family. Ben White was just 11 days short of his 18th birthday when he savagely stabbed the girl in an unprovoked assault; he was later sentenced to 10 years for attempted murder. You’d think for White’s parents to be more than twice as much at fault in the outrage as he was — 70 percent compared with 30 percent — they must be quite the monstrous couple. Curiously, though, the jury foreman said of Lance and Diane White afterward that they had “no intent” to harm and that he didn’t think they showed “ill will” or “conscious disregard for somebody”: “I’m not saying they’re bad parents”. The plaintiff’s lawyer was Stanley Chesley, who will be familiar to many of our readers. (Sharon Coolidge, “Parents must pay $7M”, Cincinnati Enquirer, Aug. 20; Tony Cook and Jeanne Houck, “Stabbed girl wins $10M judgment”, Cincinnati Post, Aug. 20).