Loads of coverage of health matters in recent weeks over at our sister website, including: liability fears and emergency room admissions; New Jersey bans “retaliating” against expert witnesses over testimony they give, no matter how untrue it may be; Ted on one lawprof’s grossly misleading use of med-mal statistics, and a second round of the same; pain medication in nursing homes (and more on nursing homes); two doctors pick up stakes; Australian med-mal rates fall after reform; same thing in Texas; HHS introduces a distinctive “early offers” program for medical malpractice claims involving its clients; please don’t let him grow up to be an M.D.; Pennsylvania hospitals’ bill; MICRA and Prop 103; the March of Dimes wants Bendectin back; federal judge Loretta Preska in Manhattan throws out a major Dickie Scruggs case against the non-profit health sector; and a must-read article on defensive medicine. To explore all this and much more, follow the links provided or visit the site’s topical page on medicine and law.
Made ill by colleague’s perfume; jury votes $10.6 million
After eight days of deliberation, an all-female federal jury in Detroit has voted $10.6 million, including $7 million in punitive damages, $2 million for mental anguish and emotional distress and $1.6 million in compensatory damages, to former radio host Erin Weber, who said she was made ill by a co-worker’s perfume and later fired after WYCD-FM’s owner, Infinity Broadcasting, failed to resolve her complaints. Weber said that exposure to colleagues’ use of nail polish remover triggered sensitivity to the emanations of a co-worker wearing Tresor, a popular scent which Lancome describes as “romantic, sensual, emotional” and as based on such ingredients as rose and lilac. “Weber claimed exposure to Tresor caused her to lose her voice and take lengthy absences from work. She also said she once ‘felt an electric shock quell through my entire body’ and required heavy medication to combat the effects,” according to the Detroit News. In addition, Weber claimed, the co-worker, who is also a radio host, continued exposing her to the perfume despite her complaints and even walked by her on purpose. Infinity lawyer Daniel Tukel said the company had ordered the co-worker to stop wearing perfume and disputed Weber’s claim that it had “blacklisted” her from radio employment. The company says it will appeal, and a reduction in the award is likely, since federal law “generally caps punitive damages at $300,000 for the claims that Weber brought.” (David Shepardson, “Radio DJ wins $10.6 million in stink over perfume”, Detroit News, May 24; Kim North Shine, “DJ takes in sweet smell of victory”, Detroit Free Press, May 24). For some earlier posts involving claims of unusual sensitivity to widely encountered chemicals, see May 6, 2002, Apr. 25, 2001, and Jul. 3-4, 2000. For complaints about perfume, see May 17-19, 2002 and Apr. 24, 2000 (& welcome James Taranto readers). Update Jul. 6, 2007: federal judge after trial reduced Weber’s award to $814,000.
“State says rare flower planted to foil project”
Sonoma County, Calif.: “State wildlife officials believe someone planted endangered flowers at a Sebastopol building site to try to stop a disputed housing development. Saying the act amounts to criminal fraud, state Department Fish and Game botanist Gene Cooley said his agency concluded that Sebastopol meadowfoam plants found on the Laguna Vista site were transplanted from somewhere else.” (Mary Callahan, Santa Rosa Press-Democrat, May 14)(via Jonathan Adler, Commons Blog, May 14).
Ted’s London travelogue
Over at Ted’s personal website — whoops, I don’t think I was supposed to mention yet that he has one — he’s recording various touristic impressions of the British scene, including Cadbury’s hot chocolate machines, whose prevalent dispensing temperature of 92 Celsius (c. 200 degrees Fahrenheit) may shed light on the Stella Liebeck vs. McDonald’s hot-coffee-spill controversy (May 20). The headline “New Bid To Curb Greedy Lawyers”, incidentally, can be traced to this Evening Standard piece (Joe Murphy, May 17) which summarizes new proposals from the Blair government aimed at bringing no-fee, no-win lawyers under greater control and curbing the rising perception of a “compensation culture” in the United Kingdom.
“Court: Man Can’t Take Both Sides of Same Case”
Massachusetts’ highest court has rebuffed John Otis III of Scituate, who first won a largely uncollectable $6.5 million verdict from a drunk driver and then tried to get that victory overturned so as to extract money from others. Otis, a pedestrian, was hit by inebriated motorist Todd Cusick, whose insurance policy limits were only $50,000. Here’s what happened next, according to reporter Sue Reinert of the Quincy Patriot-Ledger:
In a complicated legal maneuver, Otis agreed to free Cusick from his liability. In return, Otis got authority to sue Cusick’s attorneys and his insurer, Arbella Mutual Insurance of Quincy, on Cusick’s behalf. Otis would collect any winnings from the suit.
In this second lawsuit, Otis contended that Cusick got a raw deal from his lawyers, who were hired by Arbella. Cusick would have won the lawsuit if his attorneys had done a good job, Otis argued.
To make his case, Otis’ attorney, Driscoll, had to present the exact opposite arguments that he had made in winning the $6.5 million judgement, yesterday’s ruling said. He even contended that some crucial facts were different, the decision written by Justice Martha Sosman said.
“In short, Otis’ position in the present suit is that he should not have recovered anything in the first suit,” Sosman wrote.
Otis’s downfall proved to be the doctrine of judicial estoppel, which per Wikipedia “precludes a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings”, at least if the position proved successful in the first round. (Sue Reinert, Quincy Patriot-Ledger, Mar. 15)(via Common Good Society Watch). For a 2004 case in which Judge Edith Jones of the Fifth Circuit invoked judicial estoppel to stymie the attempt of a bankrupt debtor to pursue a personal injury case not disclosed during his Chapter 13 bankruptcy proceedings, see In re Superior Crewboats (PDF), summarized at the Louisiana blawg Naked Ownership (Jun. 21, 2004).
The city doesn’t always pay
Reader Bob Woolley of St. Paul, Minn. calls our attention to Durdahl v. City of Hastings, a Minnesota Court of Appeals decision filed May 17, which he summarizes as follows:
The plaintiff was a passenger in a car driven at excessive speeds by a drunk driver. The driver lost control and skidded into a parked semi-truck. The driver and one passenger were killed; two passengers survived with injuries. The case is one of those passengers suing the *city* for having granted a construction company permission to park its truck on the side of the road at a construction site. The city had done this because the site was too muddy for the truck to enter, and the volume of material to be loaded and unloaded made it impractical for the truck to park farther away. Obviously, that makes it the city’s fault that this woman’s driver was drunk and trying to take a 30 mph curve at 83 mph, right?
Fortunately, the court of appeals affirmed the sensible decision of the trial court, which was to dismiss the case.
Disabled docs’ demands
Gail Heriot (May 3), Erin O’Connor (Apr. 30), and Martin Grace (May 2) all comment on the case of Heidi Baer of Quincy, Mass., who having failed the medical boards three times is now suing the National Board of Medical Examiners under the Americans with Disabilities Act for not giving her extra time on the exam to accommodate her dyslexia. (J.M. Lawrence, “Med student’s dyslexia plea: I need time to pursue dream”, Boston Herald, Apr. 30). For more on ADA and test accommodation, see Jul. 21, 2004, Nov. 13, 2003 and links from there. In Connecticut, meanwhile, Dr. Benjamin Smith is seeking $2.5 million from Norwalk Hospital over alleged overwork and failure to accommodate his attention deficit disorder (ADD). The two sides dispute whether Smith was made to work beyond the 80-hour maximum that is supposed to be placed on residents’ workloads; Dr. Eric M. Mazur, chairman of the hospital’s internal medicine department, denies that the institution was insensitive to Dr. Smith’s needs, saying it “rearranged some of his schedules, reduced his patient load and put him on days instead of nights” and wound up terminating him for performance. He added what must count as one of the strongly worded statements of its kind we’ve seen in a while:
“The medical establishment is often accused of not policing itself, and not clearing out bad apples,” Mazur said. “It was the consensus of the faculty that his continued employment would endanger patient care.”
(Marian Gail Brown, “Doc asks $2m for overwork”, Connecticut Post, Apr. 21)(& welcome Grand Rounds XXXVI readers).
UK recreation roundup
The Lincolnshire town of Boston has canceled its annual flower and craft show, a major tourist draw, because it believes the risk of litigation is too high to proceed without hiring licensed stewards at prohibitive rates. (Nick Britten, “Flower show wilts in blame culture”, Daily Telegraph, Apr. 16). In Scotland, “Schools across Renfrewshire have banned pupils from taking part in after-school football [soccer] over fears they would be sued for injuries. … They were banned because volunteer coaches were not covered by the schools’ insurance schemes for after-class games.” (“Legal fears prompt football ban”, BBC, Mar. 12)(via Greg Skidmore, Mar. 14). At the secondary school in Chippenham, Wiltshire, students kick around a soda bottle (presumably of plastic rather than glass) after the school banned conventional footballs from the recess field; at other schools, tag and marbles are now against the rules, and don’t think of touch rugby. “Lots of people just play with bouncy balls, but I suspect that’ll be banned too before too long,” says a 15 year old boy at Abbeyfield (Tony Freinberg, “Can we have our ball back, please?”, Daily Telegraph, Mar. 20). And: “Children have been banned from collecting chickens’ eggs at the National Trust’s showpiece farm [Wimpole Hall in Cambridgeshire] because it is now deemed by health and safety advisers as too hazardous.” (David Sapsted, “Trust bans children from egg collecting”, Daily Telegraph, May 17).
However, in a widely noted case, a swimming club seeking the right to take winter swims in ponds north of London in the absence of lifeguards won a victory in the high court against the Corporation [i.e., city] of London, which “had claimed that it risked prosecution by the Health and Safety Executive if it allowed unsupervised dips.” Mr. Justice Stanley Burnton
ruled that the corporation had fallen into legal error and said club members should be able to swim at their own risk. He spoke out in favour of “individual freedom” and against the imposition of “a grey and dull safety regime”, adding that by granting permission to the club the corporation would not be liable to prosecution for breaches of health and safety.
Mary Cane, chair of the Hampstead Heath Winter Swimming Club, said:
“This was a test case with wide implications for all open swimming in England and represents another successful attack by ordinary citizens on the nanny state and the cult of health and safety.”
Ms Cane said that the club was proud to have played its part “in re-establishing an important principle of personal freedom in this country, taken for granted everywhere else, that responsible adults must be free to decide for themselves whether to pursue recreational activities involving an element of risk”.
(Clare Dyer, “Hardy bathers win right to swim unsupervised”, The Guardian, Apr. 27; Joshua Rozenberg, “Pond swimmers win right to take the plunge”, Daily Telegraph, Apr. 27; “Take the plunge” (editorial), Daily Telegraph, Apr. 27).
Feds’ tobacco suit to end with a whimper?
Alienation of affection suits
The North Carolina Bar Association is pressing to abolish the state’s unusual cause of action for alienation of affection, a carryover from common law days in a few states which allows a wronged spouse to sue the other spouse’s paramour for having broken up the marriage. The law is still sometimes used, and in fact damage awards have been escalating briskly in the Tarheel State, reaching $500,000 (later reduced) in a 1990 Forsyth County case and $1.2 million in a case eight years ago in the same county. “Most of the time, lawyers said it costs as much or more to try these kind of cases than the injured party stands to win,” and Raleigh family law practitioner Lee Rosen says he often discourages clients from filing such a suit because by poisoning the atmosphere it “destroys the possibility of future cooperation” on, e.g., custody matters. (Amanda Lamb, “Some Want To Get Rid Of ‘Alienation Of Affection’ Lawsuits”, WRAL, Feb. 2). See Nov. 16, 2004; May 18-21, 2000.