Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Pennsylvania’

Killer Quakers

Hierarchical government a pain? Separation of powers getting you down? Not a problem! Not if you’d rather be in Philadelphia:

Two Philadelphia City Council members plan to file suit against the state House and Senate Wednesday for preventing the city from passing more restrictive gun laws.

Council members Donna Reed Miller and Darrell Clarke called the city’s surging homicide rate in part a “state-created danger.”

Lawmakers have tied the city’s hands by not giving it the authority to limit gun purchases to one a month and require lost or stolen guns to be reported, according to Miller.

I’m sure the city does feel bad that it can’t pass more laws to make it feel good about the fact that its residents have turned America’s first capital into a shooting gallery… mm, like its present capital. But that is the fool’s perspective; for see how the state is even described — in its role in actually arrogating to itself the right to set policies for, er, the state — not as a sort accessory to crime, or, switching to civil liablity, a but-for cause or even a proximate cause. No, homicide in Brotherlovopolis are a “state-created danger”! Only a sage who merits a seat on the Philadelphia City Council can see these murders committed by carbon-based entities in Philadelphia for what they are: The product of passive, robotic mayhem-slaves of the blood-lusting Commonwealth of Pennsylvania, doing its cynically William Penn-garbed bidding and killing! Killing! Killing!

Quaker State indeed.

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Great moments in immigration law

Getting wide exposure on YouTube, and providing fodder for Lou Dobbs:

The video shows attorneys for Cohen & Grigsby, one of the largest law firms in Pittsburgh, explaining at a conference on immigration how to obey laws that require Americans be given top priority for jobs while still ensuring foreigners are hired.

“The goal here of course is to meet the requirements, number one, but also do so as inexpensively as possible, keeping in mind our goal. And our goal is clearly not to find a qualified and interested U.S. worker,” Lawrence Lebowitz, the firm’s vice president of marketing, told the audience in May.

(“Pa. law firm’s immigration talk hits YouTube; U.S. senator demands investigation”, AP/Arizona Star, Jun. 23; Sister Toldjah; Doug Ross). More: Kim’s Play Place says the lawyers were serving their clients’ legitimate interests and that if they can arrange compliance with the letter of an irrational law there’s no reason for them to show allegiance to its claimed spirit. Further: Gina Passarella, “Immigration Law Seminar Generates Unwanted Publicity for Firm”, Legal Intelligencer, Jun. 25 (& welcome Opinionator readers).

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“Laws Limit Options When a Student is Mentally Ill”

WashingtonPost.com’s “Think Tank Town” feature has a symposium on the policy implications of the Virginia Tech massacre, including contributions from Ted on fear of litigation and from me on the legal constraints on universities faced with problem students, as well as from Jim Copland (Point of Law, Manhattan Institute) on gun control.

This morning’s New York Times (Apr. 19) includes a must-read article by Tamar Lewin spelling out in more detail the problems I refer to in my short commentary. Writes Lewin:

Federal privacy and antidiscrimination laws restrict how universities can deal with students who have mental health problems.

For the most part, universities cannot tell parents about their children’s problems without the student’s consent. They cannot release any information in a student’s medical record without consent. And they cannot put students on involuntary medical leave, just because they develop a serious mental illness….

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression….

Last month, Virginia passed a law, the first in the nation, prohibiting public colleges and universities from expelling or punishing students solely for attempting suicide or seeking mental-health treatment for suicidal thoughts.

The article also refers to the role of the Buckley Amendment (FERPA), the HIPAA medical-privacy law, and disabled-rights law, which prohibits universities from inquiring of applicants whether they suffer serious mental illness or have been prescribed psychotropic drugs. Incidentally, the Allegheny College case, in which a Pennsylvania college came under fire for not notifying parents about their son’s suicidal thoughts, was discussed in a W$J article last month: Elizabeth Bernstein, “After a Suicide, Privacy on Trial”, Mar. 24. And Mary Johnson suspects that HIPAA will turn out to have played a role in the calamitous dropping of the ball regarding Cho’s behavior (Apr. 18). More: Raja Mishra and Marcella Bombardieri, “School says its options were few despite his troubling behavior”, Boston Globe, Apr. 19; Ribstein.

And: How well did privacy laws/policies work? Why, just perfectly:

Ms. Norris, who taught Mr. Cho in a 10-student creative writing workshop last fall, was disturbed enough by his writings that she contacted the associate dean of students, Mary Ann Lewis. Ms. Norris said the faculty was instructed to report problem students to Ms. Lewis.

“You go to her to find out if there are any other complaints about a student,” Ms. Norris said, adding that Ms. Lewis had said she had no record of any problem with Mr. Cho despite his long and troubled history at the university.

“I do not know why she would not have that information,” she said. “I just know that she did not have it.”

(Shaila Dewan and Marc Santora, “University Says It Wasn’t Involved in Gunman’s Treatment”, New York Times, Apr. 19). And Barbara Oakley, a professor at Oakland University in Michigan, has an op-ed in today’s Times, recounting her experience with a disturbing student: “It must have seemed far more likely that Rick could sue for being thrown out of school, than that I — or anyone else — could ever be hurt.” (“The Killer in the Lecture Hall”, Apr. 19). The tease-quote from the Times’s editors: “Do universities fear lawsuits more than violent students?”

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Sued if you do, sued if you don’t.

Hospital X was grossly — if not criminally — negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don’t let them try to claim they didn’t foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he “became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!” Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client’s operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That’s the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas’s complaint was that since he couldn’t find anybody to supervise him, the hospital’s condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient’s life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn’t possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)

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April 11 roundup

  • Chief exec of 1-800-ATTORNEY ended up needing one himself, pleading guilty to securities fraud charge [NYLJ, Lattman]

  • Cost of providing liability insurance for Pennsylvania prison doctor greatly exceeds his pay [Shamokin, Pa. News-Item, Dr. Robert Hynick, Northumberland County Prison]

  • “Scottish sociopaths sipping their single malt Glenlivet” — yep, Jack Thompson is suing Grand Theft Auto developers again [GameSpot]

  • Anna Nicole Smith fee-ing frenzy: $4,265 for Bahamas cellphone roaming part of “fair and reasonable” lawyer’s bill [TMZ]

  • Working in a prosecutors’ office? More about nailing ’em than making sure justice was done [Dean Barnett via MedPundit]

  • Don’t forget imprisoned Egyptian blogger Abdelkareem Nabil Soliman [Palmer @ NRO, Doherty @ Reason]

  • “Pretexting” to fish out adversaries’ secrets: yes, lawyers do it too, now that you mention it [Elefant]

  • Which is more dangerous to kids, a house with a swimming pool or a house with a gun? Think carefully before answering [Stossel]

  • For shame: Supreme Court of Canada gives go-ahead for British Columbia’s retroactive tobacco recoupment suit [Ottawa Citizen, CBC, Bader; earlier]

  • Anti-biotech activists score, farmers squirm as judge halts sale of Roundup Ready alfalfa [Farmer-Stockman, Feedstuffs, Truth about Trade & Technology](more: Coyote)

  • Soap opera actor sues after ABC writes his character out of the script [five years ago on Overlawyered]

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Roundup – April 9

  • Dontdatehimgirl.com lawsuit suffers another setback. A court ruled today that the Pittsburgh-based lawyer-plaintiff can’t sue the Florida-based website in Pennsylvania. (Howard Bashman). The suit against the website is frivolous in any case; it is well-established that Section 230 of the Communications Decency Act immunizes the website. (The suit against the posters, on the other hand, is a legitimate defamation claim.) Previously covered on Overlawyered: Jul. 2006, Jan. 2007.
  • In Easton, Pennsylvania, a police officer accidentally shoots and kills another police officer after cleaning his gun; now the widow is filing a $20 million wrongful death lawsuit against the city, the mayor, city administrator, the police chief, the shooter, the head of the SWAT team of which the players were both members, a fellow officer who was standing nearby, and the retired former head of the SWAT team. I’m sure one of them has the money.
  • Philadelphia city councilwoman — and some tourism officials — wants to require licensing of city tour guides, including history tests, so that they don’t provide inaccurate history to tourists.
  • In 1999, a 19-year old college student named Richard Beers was killed while working construction over the summer. He had stopped the backhoe he was using on a hill, left the motor running, and walked behind it. It rolled down and ran him over. So his family blamed… Caterpillar, which had manufactured the backhoe, and sued for $25 million plus punitive damages. Last week, an Ohio jury found Caterpillar not liable — and it only took eight years (six years after the suit was filed) to resolve the matter.

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Rights for (some) stranded travelers

If an ice storm leaves you immobile and furious, the law surely must provide you with a remedy, at least if you’re at New York’s JFK airport, as opposed to being stuck on Interstate 78 in Pennsylvania. Right? (Steve Chapman, “The right protection for airline passengers”, Chicago Tribune/syndicated, Feb. 22; “The Politics of JetBlue” (editorial), Wall Street Journal/OpinionJournal.com, Feb. 24).

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What Lincoln said

Abraham Lincoln, as we’re sometimes reminded around this time of year, made a living as a practicing lawyer, much of it in trial practice. For some reason this website has never gotten around to citing Lincoln’s Notes for a Law Lecture, possibly his best-known pronouncement on the ethics and practicalities of law practice. Some highlights:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

“Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”

“There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”

Among those calling attention to Lincoln’s comments on lawyering this week are David Giacalone (Feb. 12; see also here and here) and Daniel E. Cummins in Pennsylvania Law Weekly (“Lincoln Logs of Wisdom”, Feb. 12), both of whom offer additional quotations of interest.

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January 23 roundup

  • Trial lawyers look for Democrats to punish. [Point of Law; Investors’ Business Daily]
  • Point of Law Vioxx trial updates: California, New Jersey, and Pennsylvania.

  • Men seeking laws freeing them from child support when DNA proves they’re not the father. Earlier: May 10 and Feb. 3, 2004. [Time]

  • Latest creative defense to a murder charge: Asperger’s syndrome. [Boston Globe]
  • A complicated medmal case is trumped by the sympathy factor [Cortlandt Forum via Kevin MD]
  • Cost of EMTALA (Sep. 2, 2005) in LA County alone: $1.6 billion. LA Times doesn’t mention the law by name or consider the obvious conclusion. [LA Times]
  • Why the painfully obvious explanations on painfully obvious objects? [comments at Obscure Store; New York Sun; new Mike Judge movie Idiocracy]
  • Lessig: stop me before I regulate again! [Hit & Run]
  • Right-wingers take on Dinesh D’Souza [roundup of links at Postrel]
  • The meaningless and counterproductive Democratic House bill on student loans. [Novak @ WaPo]
  • Do big law firms really care about attrition? One theory. [Ivey Files]
  • My girlfriend thinks I spend too much time arguing with idiots. Relatedly, Eugene Volokh responds to Anisa Abd el Fattah about the First Amendment and Jews. [Volokh]

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