“Lawyers try new tacks in malpractice suits”

Trial lawyers are finding new ways to transfer money from the pockets of doctors to attorneys. An Ohio jury voted 6-2 that Cleveland doctor Franklin Price was liable for $3.5 million because he didn’t do enough to help Lawrence Smith lose weight and stop smoking, and thus avoid a fatal heart attack. (Tanya Albert, “Jury says doctor didn’t do enough to help obese smoker”, American Medical News, May 12, 2003). In Florida, Miriam Kamin is about to go to trial in a lawsuit against Baptist Hospital of Miami not because they misperformed her pancreatic surgery, but because she feels that the hospital should have referred her to a hospital that performs the operation more often. And in Ohio and Texas, plaintiffs are trying to avoid medical malpractice caps by restating the claims as “corporate negligence.” (Tanya Albert, American Medical News, Feb. 9).

For Texas trial lawyers, revenge time

Throwing their weight around: “Across Houston and the state, plaintiffs’ attorneys are backing primary opponents to Democratic legislators who bucked the party last year and supported Proposition 12, part of a Republican-led effort to cap medical malpractice damages. … The Texas Trial Lawyers Association had no public comment. But one association member privately said trial lawyers intend to make it rough on legislators who oppose them.” Republicans aren’t safe either, with the chief author of the bill, Rep. Joe Nixon (R-Houston), facing a primary challenge from a plaintiff’s lawyer. (John Williams, “Alliances put heat on tort reformers”, Houston Chronicle, Jan. 31).

Update: jury rejects “Library Cat” suit

“It took a jury little more than two hours of deliberation Friday to reject a claim from a man that the city of Escondido violated his civil rights when a cat living in a city library attacked his assistance dog more than three years ago.” For our earlier coverage of Richard Espinosa’s suit, which had demanded $1.5 million, see Jan. 18 and links from there. (Teri Figueroa, North County Times, Jan. 30).

Oz: helmets for cowboys?

Jackaroos, the Australian counterpart of Western cowboys, have traditionally worn the bush hat known as an Akubra, but changes in the law may soon result in the substituting of hard hats instead. After a young jackaroo was thrown from a horse and killed, the New South Wales industrial safety authority pressed charges against the owners of the livestock station where he was working for not providing a safety helmet, and the owners have now pleaded guilty to the charges (Denis Gregory and Jim O’Rourke, “Jackaroo’s death could spell the end for old hats”, The Age (Melbourne), Nov. 30; “Curtains for Akubra after death?”, AAP/Sydney Morning Herald, Feb. 2).

Poland Spring class action

“A class-action suit raises questions: Does Poland Spring water come from springs? And can you drown lawyers in it? Please?” Terms of the settlement are “pretty standard: next to undetectable benefits for us — some discount coupons and whatnot — and $1.35 million in cash for the plaintiffs attorneys.” (Roger Parloff, “Springtime for Poland”, Fortune, Feb. 9)(see Sept. 10). Update Jun. 25: how much did consumers actually get? Darned if one columnist can find out.

Risks of defensive radiology

Use of radiation-based diagnostic methods continues on a rapid rise, even though experts on carcinogenesis warn that a small but non-trivial share of cancer is attributable to radiation from the use of medical X-rays, much of it from CT scans. MedPundit Sydney Smith (Jan. 29) says she sees a high volume of CT scans of the chest and abdomen. “I have a couple of patients who are on their third or fourth follow-up CT for uncertain findings that, truth be told, are done more for our own protection than theirs. Yet another way our litigation culture is influencing healthcare — and health.”

Lockyer to sue grocery chains

Calif. Attorney General Bill Lockyer says he’s filing an antitrust suit against Southern California grocery chains alleging that their mutual-aid strike agreement violates the federal Sherman Act. His spokesmen deny (cue laughter) that he’s trying to lend a hand to the sagging fortunes of the United Food & Commercial Workers in its 3 1/2 month old labor dispute with the chains. (“State to file antitrust suit in grocery strike”, San Francisco Chronicle, Jan. 31). “It appears the attorney general’s office is seeking a legal precedent that would scotch strike-assistance agreements in general.” Meanwhile, the Los Angeles city council is expected to vote this month on a bill which would prevent Wal-Mart from opening its SuperCenters within city limits, thus excluding the main source of competition pressing grocery prices lower. We’re sure that isn’t meant as a favor to the UFCW, either. (Shirley Svorny, “Banning Wal-Mart May Prove Costly” (commentary), Los Angeles Times, Jan. 30)

“In Trial Work, Edwards Left a Trademark”

Good New York Times page-one article investigating the Senator’s legal work, and in particular his big-ticket lawsuits over cerebral palsy. (Adam Liptak and Michael Moss, Jan. 31). See our earlier coverage Jan. 20 and Jan. 26. Alex Tabarrok, Sydney Smith, Charlotte Hays and Wayne Eastman comment.

Meanwhile, a theme has developed among several lawyer and law-professor bloggers that Edwards should not be held up to reproach even if it turns out that he employed dubious expert testimony to extract fortunes from innocent obstetricians, on the grounds that a trial lawyer is just doing his job when he seeks to introduce all admissible evidence on behalf of his client; in fact, he may even be obliged to do so as an ethical matter of “zealous advocacy”. (It should be stressed that Edwards strongly disputes the idea that his cases were in any way scientifically dubious.) We ourselves aren’t buying this line of reasoning, but it has some articulate advocates, including Peter Nordberg (who also defends Edwards here, while acknowledging that some details in the new Times piece “may supply grist for Edwards’ critics”), Franco Castalone, and David Bernstein. For our views of what constitutes proper “zeal” on lawyers’ part, see Jul. 17.

Funny business at the margin

Court reporters get paid by the page — $5 per page, in south Florida — and according to allegations in a class action that one lawyer has filed, they’ve been padding their incomes by inserting extra white space into some of those depositions and hearing transcripts. A Broward County administrator “says the tricks are old and common” and a Dade County administrator says that county, a major purchaser of court reporting services, “audits more than 2,000 transcripts a month and finds problems with about one in 10.” Less-savvy participants in courtroom processes may never notice, say, the use of a margin wider than that prescribed by state law. (Noah Bierman, “Lawyer claims court reporting agency fudging margins and bottom line”, Miami Herald, Jan. 13).