Med-mal at Point of Law

At our sister site, Jim Copland has posted a critique of a new advocacy paper from the misnamed Center for Justice and Democracy purporting to find that medical malpractice insurers rake in money far faster than they pay it out; he finds that the report is careful to count the (rising) revenues of insurers moving into the med-mal market, but entirely omits to count the payouts/losses of major insurers that have been departing the market. Convenient, that! Martin Grace has further thoughts on the same report, and also comments on evidence that liability issues are causing physicians to relocate.

And more: Ted Frank reports on the Wisconsin Supreme Court’s just-announced and “baldly activist” decision striking down caps on non-economic damages, and also on recent claims that anesthesiologists’ success in reducing injury rates somehow refutes the need for liability reform. And I’ve posted items on lawyers’ turning down $500K cases as too small; “patients’-rights” front groups; do lawyers get better care when they are patients, or worse?; and M.D.s’ apologies.

Champerty and maintenance watch

The law firm of Cellino & Barnes bills itself as the largest personal injury firm in western New York, and the “faces of [name partners Ross M.] Cellino and [Stephen E.] Barnes grace a reported 150 billboards across upstate New York. The attorneys’ names and likenesses frame their phone number and the one-word question ‘Injured?'” However, the firm has now gotten itself into hot water: an appellate panel has suspended Cellino and censured Barnes for, among other infractions, “advancing financial assistance to clients that was unrelated to the expenses of litigation”.

The unanimous five-judge panel found that Cellino and Barnes advanced financial assistance to clients beyond the expenses of litigation and, when they subsequently became aware that such actions violated the disciplinary rules, “arranged for the establishment of, funded and controlled [a] company owned by respondent Cellino’s cousin and that they did so in order to continue loaning money to clients.”

At common law, champerty (supplying clients with money in exchange for a share in the action) and maintenance (supplying them with money in order to keep their lawsuits going) were both offenses, but the prohibitions have tended to fall into disuse or to be repealed outright in recent times. On champerty, see Jun. 19, 2005, Jun. 27, 2004, Oct. 25, 2003, and this excerpt from The Litigation Explosion. (Mark Fass, “Bad Lawyer, No Billboard”, New York Law Journal, Jun. 14; Michael Ziegler, “Cellino & Barnes leaders punished”, Rochester Democrat & Chronicle, Jun. 11; Rick Pfeiffer, “Lawyers Cellino and Barnes found guilty of violating conduct code”, Tonawanda News, Jun. 11). More on the Barnes law firm: Jan. 31, 2006.

Who is Responsible for the Death of Susie Lopez?

Some call him troubled. Others call him a “coldblooded killer.” Whatever you call him, there is no dispute that this past weekend, Jose Pena used a toddler — Susie Lopez — as a human shield as he exchangd gunfire with the LAPD. As a result, the LAPD shot and killed the toddler, along with Pena. It was reportedly the first time in the SWAT team’s 38 year history that a hostage has been killed by the LAPD. The family of Susie Lopez has retained a lawyer, Luis Carrillo, and accusations of excessive force and cover ups are already flying.

It has also been reported that Pena told the police that he was not going to jail, Pena told his stepdaughter that he was going to shoot his own daughter and Pena threatened his own wife. Had the LAPD not acted in the face of these acts and threats, does anyone doubt that lawyers would be second guessing the LAPD for inaction? (LA Times “Coroner Says Toddler Shot by LAPD Officer,” Jul. 13, MSNBC, “War of words escalates in deadly L.A. shooting,” Jul. 14.)

A thought on fast-food regulation

ABC’s John Stossel, writing in his weekly column (“Who’s really open?”, syndicated/TownHall, Jul. 13):

I did have had a wonderful time on Air America’s “Morning Sedition,” with a host who was furious that government doesn’t stop Americans from eating too many Big Macs. I treasure the moment of silence that followed my saying that government that’s big enough to tell you what to eat … is government big enough to tell you with whom you can have sex.

Suing the web’s archivist

The Internet Archive, home of the celebrated Wayback Machine which allows researchers to examine the state of the World Wide Web as it stood in the past, is being sued by a Pennsylvania company for archiving its pages without consent. After all, capturing someone’s web presence for posterity is kind of like taking a photograph of them and thereby stealing their soul, or something like that. (Tom Zeller Jr., “Keeper of Expired Web Pages Is Sued Because Archive Was Used in Another Suit”, New York Times, Jul. 13)(via Bashman).

Europe Overlawyered

In some places it’s worse: a group of French cleaning ladies organized a car-pool to take them to their jobs across the border in Luxembourg. For their efforts, they, and their employer, Onet-Luxembourg, have been sued by bus service Transports Schiocchet Excursions, for “unfair competition”; the bus company seeks to have the cars seized. The case will be heard in January. (Kim Willsher, “Bus firm takes car sharers to court”, Guardian, Jul. 11 (via Taylor); Thomas Calinon, “Préférer sa voiture au bus peut vous conduire au tribunal”, Libération, Jul. 9).