A view from the plaintiff’s bar

Plaintiff’s attorney Bruce Fagel, MD, JD, a malpractice specialist in Los Angeles, spoke with Medical Economics for a cover-story interview in their last-but-one issue (“How I pick the doctors I’ll sue”, Aug. 20). The whole thing is worth a look; here are two snippets.

On how juries decide:

When doctors are cross-examined in a deposition or during trial, they often try to avoid responsibility for their actions. In fact, some defense attorneys encourage this attitude, instructing their clients not to answer even reasonable questions. As a result, jurors may ultimately be convinced of a doctor’s negligence not by the nature of his actions in the case, but by what looks like intentional evasion of responsibility when explaining why something went wrong.

The real value of our jury system in medical malpractice cases has little to do with the jurors’ ability to understand the medical facts and issues in the case. In fact, it’s widely accepted that they don’t understand much of the clinical information presented to them. What they do understand is when a witness is telling the truth. Doctors would do well to remember that.

And on tort reform:

I don’t think the idea of a cap on noneconomic damages is unreasonable, since it’s so difficult to put a dollar value on pain and suffering. What’s unreasonable is the fact that MICRA [the California medical liability law] was passed in 1975, and the $250,000 limit wasn’t tied to inflation. As a result, each year plaintiffs here are really getting less money. Today that $250,000 is worth less than $75,000 in 1975 dollars. So it’s a real problem for plaintiffs with legitimate claims for pain and suffering.

$6.5M for being the location of shooting

Luis Gutierrez was providing police with information about a series of burglaries, and police believe that’s why he was shot four times and killed by a ski-masked assailant in the parking lot of the Alamo Quarry Market movie theater in San Antonio. (They’ve made no arrests as of yet.) His family sued the shopping mall management company, Trammell Crow, for not providing enough security to prevent the premeditated attack; their attorney asked for $5 million and a Bexar County jury awarded $6.5 million. Trammell Crow is appealing. The local paper ran the story without any effort to tell the defendant’s side of the story. (KSAT, Sep. 3; Tom Bower, “Jury awards $6.5 million in Quarry shooting”, San Antonio Express-News, Sep. 4).

Calif. court shutters habeas “writ mill”

A state appeals court has ordered ex-lawyer Richard Dangler Jr. of Sacramento to pay $25,000 in sanctions for operating “a ‘writ mill’ where law students and disbarred lawyers worked without supervision in filing pointless petitions for paying inmates”. The attorney had filed “a series of what he conceded were ‘patently frivolous and contemptuous’ habeas corpus petitions. Dangler resigned from the State Bar in May with charges pending against him.” (Jill Duman, “Court Says Ex-Lawyer Put Students to Work in Writ Mill”, The Recorder, Sept. 3).

Disappearing swings, cont’d

In addition to liability and safety fears, the Americans with Disabilities Act turns out to play a role in the decline of swing sets at public playgrounds: it seems the least expensive way to make a swing set safer is to surround it with sand, but sand is considered a non-accessible surface for wheelchairs which makes it suspect under the ADA. (Scott Simonson, “Safety rules retiring playground standby”, Arizona Daily Star, Sept. 7). See Mar. 28, Aug. 23, etc.

Lawyer bills $300/hour for sleeping

Amazing story from South Texas of six lawyers who got themselves appointed guardians ad litem to represent minors’ interests in a bus-crash case called Goodyear Dunlop Tires vs. Gamez et al. “Four of the six lawyers were appointed less than three weeks before Goodyear settled the case, and one only eight days before the settlement. Yet according to Austin lawyer Debora Alsup, who worked on the appeal, all six asked for $100,000 in fees,” payable by the tire company. They asked for $400-500 an hour, two or three times their customary fee, arguing that “those rates were customary for ad litem fees in Webb County.” As for the lawyers’ self-report of hours worked, well, suffice it to say that one of them was so bold as to bill for more than 24 hours in a single day, while another billed 48 hours for travel over a two-day period, including compensation for being asleep. And on and on, as the Houston Chronicle’s Rick Casey reports (“Lawyer bills for missing tuck-in time”, Aug. 31):

?One lawyer billed 53 separate entries of 0.1 hour each in one day for reviewing 16 filings by plaintiffs, “which were identical except in minor respects,” according to the appeals court.
?One lawyer billed between two and four hours at $500 per hour to review each of numerous one-page deposition notices, for a total of 50 hours for reviewing the notices.

District Judge Raul Vasquez of Laredo gave the lawyers a lot of what they sought, but a three-judge panel in San Antonio disagreed, calling the fees “unconscionable”. And here is the perfect grace note to the affair, as reported by Casey:

One appeals judge, Sarah Duncan, wrote a concurring opinion concluding the full court should “report these attorneys to the grievance committee.”

In Laredo the grievance committee is chaired by Marcel Notzon III, the lawyer whom Judge Vasquez awarded the most fees in this case.

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CD price fixing settlement, cont’d

Ted Frank reported Aug. 23 on the Compact Disc Antitrust Litigation Settlement, in which music distributors and retailers agreed to donate 5.5 million CDs to libraries, valued at 20% below retail, as part of the rationalization for a multi-million-dollar payment of fees to plaintiff’s counsel. Now the Washington Post has more details about how the musical selections — by and large, unpopular stuff that had been sitting unsaleable in warehouses — were stuffed randomly into boxes for shipping, so that libraries wound up getting large multiples of CD titles they would not have greatly coveted in the first place (Karin Brulliard, “An Influx of Outmoded CDs”, Washington Post, Sept. 6). Alex Tabarrok also comments (Sept. 6). Coming up next: will Newsday and other newspapers plagued by circulation scandals agree to make it up by shipping libraries bundles of week-old papers?

Texas: libel not a function of the dumbest readers

In 1999, 13-year old Christopher Beamon of Denton County’s Ponder, Texas, was assigned to write a Halloween story, but when he wrote a horror tale of accidentally shooting a teacher, he earned more than an A+: the local district attorney, Bruce Isaacks, prosecuted him, and Judge Darlene Whitten ordered him detained for a week at a juvenile center.

Already one for the overlawyered files, but then the Dallas Observer printed a parody having Isaacks and Whitten go after Cindy Bradley, a fictional six-year-old girl who read Where the Wild Things Are for first-grade story time. Isaacks and Whitten sued for libel, under the theory that because the story wasn’t labeled satire, some readers might think it’s the real thing. Amazingly, a lower court was ready for this to go to a jury trial before the Texas Supreme Court stepped in Friday and unanimously voted to throw out the case. The Court noted, among other things, that the Beijing Evening News took seriously an Onion story about Congress requesting a dome with a retractable roof and that another Onion story titled “Al-Qaida Allegedly Engaging in Telemarketing” provoked a Michigan sheriff to issue a warning in a press release. (AP, “Court rules for Dallas Observer in libel suit”, Sep. 3; Jesse Walker, “Where the Wild Suits Are”, Reason, Feb.; New Times Inc. v. Isaacks opinion; Daniel Terdiman, “Onion Taken Seriously, Film at 11”, Wired, Apr. 14) (via Hit & Run).

Update, Sep. 9: Howard Bashman has a comprehensive run-down of coverage, and points us to this Dallas Observer story gloating in victory.

Bad lawyer files: Fourth yacht’s the charm

Or, “Not only loose lips sink ships.”

Bloggers Grace and Wallace point us to the tale of the infamous (and now suspended) attorney Rex DeGeorge, which has important lessons how the plaintiffs’ bar has made insurance more expensive for all of us: because insurers who suspect fraud risk substantial liability for “bad faith” denial of coverage (e.g., May 5, where an insurer who merely investigated an $8,000 chiropractor’s bill was hit with a $150,000 judgment), insurance scamsters can manipulate the system by threatening a suit. For an individual case, simply defending the non-payment may be more expensive than making the payment; even on a systematic basis, the risk of losing a case and facing punitive damages can put insurers in a bind. This is lengthy, but worth it.

Read On…

Malpractice insurance: around the country

In West Virginia, insurer NCRIC was paying out $1.07 in claims for every $1 in premiums collected; it almost left the state until regulators allowed them to raise rates to make up the difference. Of course, some doctors can’t afford the new rates, and have had to stop practicing at hospitals and nursing homes that require insurance. ATLA once again blames the insurance companies for failing to invest premiums in such a way to pay the rising claims. The insurer’s problems were exacerbated when a D.C. jury levied a $18 million countersuit verdict against NCRIC when it tried to collect $3 million in unpaid premiums from the defunct Columbia Hospital for Women Medical Center. (Dina ElBoghdady, “D.C. Malpractice Insurer Feels Squeeze”, Washington Post, Sep. 6).

In Illinois, the political debate continues over the need for tort reform, as doctors continue to flee the state. Ed Murnane, of the Illinois Civil Justice League, notes that 40% of the doctors in St. Clair and Madison Counties have been named as defendants in lawsuits between 2000 and 2003; even though the overwhelming majority of plaintiffs collect nothing from such cases, the costs of defense are high. (Mark Samuels, “Group: Tort Reform Can Stop Malpractice Crisis”, The Southern, Sep. 3; Rob Stroud and Herb Meeker, “Illinois physicians say insurance rates are driving them out of state”, Journal Gazette/Times-Courier, Sep. 3).

An editorial signed by 25 Washington County, Maryland doctors protests the legislature’s failure to reform the medical malpractice system. (“Lawsuits will drive doctors away”, The Herald-Mail, Sep. 5).

In Nevada, the trial lawyers groups are trying to obstruct reform by putting forward faux reform measures on the initiative ballot that would wipe out the real reform measure, Question 3. For example, Question 5, proposes penalties for filing or defending “frivolous” lawsuits–but redefines “frivolous” to narrow the classification as to be meaningless. At the same time, it bars the legislature from ever implementing caps. An earlier attempt to stop Question 3 with a last-minute lawsuit failed. (Tanya Albert, “Nevada tort reform ballot fight now brewing”, American Medical News, Sep. 13; AP, Aug. 25; No on 4 and 5 website).

Washington state doctors are traditionally politics-free, but the medical malpractice crisis could change that and force them to lobby for the reform Initiative 330. “‘Physicians in the main have an aversion to mixing politics with their professional medical practice,’ said Dr. Kevin Ware, president of the county medical society. ‘But under the current circumstances, the need for malpractice insurance reform is so desperate that physicians are having to look seriously at departing from that custom.'” (Sharon Salyer, “Doctors may lift ban on politics”, The Herald, Sep. 6; Wallace blog, Aug. 31).

Wyoming has lost 10 percent of its doctors in the last eighteen months, and the state’s largest malpractice carrier will stop renewing policies October 1. A constitutional amendment is necessary for reform there. (Lee Lockhart, “Lawmaker predicts heated debate over damage caps”, Casper Star Tribune, Aug. 27).