November 21st, 2006

Disgraced Grace and CNN sued over mother’s suicide

Back on September 7th, CNN host Nancy Grace mercilessly grilled a mother whose two-year old had disappeared, essentially accusing the mother of failing to help find her son. The day after the inquisition, the mother killed herself. Now the family is suing Grace and CNN for wrongful death.

Leaving aside Grace’s contemptible television personality, this poses an interesting legal question in an extremely sad case.

On one side, CNN/Grace will assert that the First Amendment protects them from asking questions, and further, that there was nothing preventing the mother, Melinda Duckett, from telling Grace to go stuff it and walking off the set.

On the other side, the Duckett family claims in their Complaint a fraudulent inducement to appear on the show. They claim the mother was asked to appear so that she could help publicize the kidnapping, but instead, Grace/CNN saw a 21-year old mother as an easy target to cross-examine for the benefit of ratings.

For fraudulent inducement, one needs a contract. The implied contract here would likely have been Ms. Duckett receiving the airtime to tell her story in exchange for CNN getting the interview.

If Ms. Duckett’s ability to negotiate the details of her appearance on Grace’s show were impaired by misrepresentations made to her, then the family could prevail.

Frankly, CNN should have fired Grace immediately. I guess the ratings were more important than a little humanity.

November 20th, 2006

FAQ – New York Personal Inury Law – Part 1

Since many of the same questions recur in personal injury law, it makes sense to write about them. Here then is the first installment of Frequently Asked Questions:

1. There are so many attorneys and legal websites, how do I select a law firm?

Make sure the firm has a real office in your area. A “national” firm advertising on the Internet may merely be a toll free number from anywhere, without even having an attorney admitted to practice law in New York. Such a firm is likely to sign clients up, and then shop the case around to others in New York in exchange for a legal fee. This lowers the fee to the local attorney (who you have not met) that will do the actual work. Because the “national” firm is taking some of the legal fee, it will also make it less likely to be accepted by high caliber local attorney. The same is true of the dozens of attorney search “services” that are little more than an advertising web site.

Make sure the firm has handled personal injury cases such as yours and has some examples for you to see. Would you want a firm that devotes 95% of their time to matrimonial matters handling a medical malpractice birth injury lawsuit for your child?

Visit the office and talk to the attorney that will handle your case. If you feel you are being rushed and not given enough time to discuss the matter, hire another firm.

Will your case get individual attention, or be one of thousands of New York personal injury cases that the firm handles, assembly-line style? Some people like small firms with individual attention, and others like larger firms. It is a matter of personal preference.

If possible, get a reference from someone you know and trust.

2. Someone approached me at the hospital and recommended a lawyer. Is it OK to use that firm?

Any law firm that solicits you, your family or friends at a hospital should be immediately reported to the District Attorney or the local disciplinary committee. This “ambulance chasing” is illegal, unethical and embarrassing to the profession. Further, if such conduct takes place at the start of representation, it will be impossible to trust the attorneys later on to do the right thing for you when you seek advice on how to proceed. I don’t care how good they claim to be, if they are unethical than you should look elsewhere, or if you have already hired them, change attorneys.

In the next FAQ post, I’ll cover legal fees for general liability cases as well as the more complex medical malpractice suits.

November 18th, 2006

Hospitals are not healthy

A recent op-ed in the New York Times reminds us again that a hospital is not just a good place to get better, but also a great place to get sick. That’s not being cute, but simply reminding us that about 100,000 people die each year from infections they acquire in the hospital. The author of the column, former lieutenant governor of New York Betsy McCaughey, points out that this is five times as many as die of AIDS in this country.

The killer bacteria are known as MRSA., or methicillin-resistant Staphylococcus aureus. MRSA, which by definition is resistant to antibiotics, increased in the United States by 32 times from 1976 to 2003, according to the Centers for Disease Control. While staph infections comprised only 2% percent of hospital infections in 1976, it is now 60 %.

Infections are carried from patient to patient due to sloppy institutional practices, as germs travel on gowns, gloves, bedrails, stethoscopes, wheelchairs and even blood pressure cuffs. Prevention comes in the form of testing people for the bacteria that causes the problem, and isolating those individuals. The cost of illness and death vastly outpaces the cost of testing.

The sad truth is that so many of these infections and deaths are preventable. Other developed nations, faced with rapid growth of the problem, have nearly eradicated it with testing.

Ms. McCaughey, who is also the founder of the Committee to Reduce Infection Deaths, writes:

Treating hospital infections costs an estimated $30.5 billion a year in the United States. Prevention, on the other hand, is inexpensive and requires no capital outlays. A pilot program at the University of Pittsburgh found that screening tests, gowns and other precautions cost only $35,000 a year, and saved more than $800,000 a year in infection costs. A review of similar cost analyses, published in The Lancet in September, concluded that M.R.S.A. screening increases hospital profits — as it saves lives.

The failure to take proper preventative measures is institutional malpractice, and has caused extraordinary suffering and loss. Must hospitals wait to be hit by juries with large liability awards before they change their conduct?

November 18th, 2006

Will the election results curb tort "reform"?

I put “reform” in quotes for a reason. Because those that tout such reform are really interested in granting various forms of protection and immunities to those who have caused injury to others. Reform generally means an improvement, but those with a political agenda to reduce the rights of the injured have reversed the meaning.

The election of Democratic majorities in both the House and Senate seems certain to have an effect on those who had championed corporate protections against law suits. As the National Law Journal notes in this November 16, 2006 piece:

So-called tort reform is just one of a number of legal agenda issues likely to be placed on the back burner or to undergo redefinition when the new Congress begins in January.

The House Judiciary Committee under Republican control has been a reliable source of tort system-related legislation, including medical malpractice liability limits, new sanctions on attorneys who file frivolous lawsuits, proposed constitutional amendments on a variety of contentious social issues, and efforts to limit what some of its members believe are unaccountable and activist federal judges. A good number of those proposals have been adopted by the Republican House only to be blocked in the narrowly divided, yet Republican-controlled Senate.

That part of the Republican agenda that carries this banner of reform has always smacked of hypocrisy to me. The party, after all, repeatedly claims to champion personal responsibility for one’s acts. Yet in this arena they have done the exact opposite — asking that protections be granted to corporations or physicians so that they would not be held responsible for their negligent or reckless acts. I can only think of one reason for this hypocritical position. In the arena of our tort system, it seems that campaign contributions carry more weight than political philosophy.

On my web site, I put together a page of materials regarding changes to our civil justice system that have been advocated by some. It is a subject I expect to return to in the future.

November 17th, 2006

The purpose of the New York Personal Injury Law Blog

This blog is inaugurated and dedicated with a simple message — that while the law is often complex, it need not be. It is my intention to discuss cases of interest for New York personal injury lawsuits, pending legislation and other matters of public interest in the same style that I try cases in the courtroom. Simply. If I can take the inner workings of the human body and make them understandable to lay jurors while trying a medical malpractice case, I ought to be able to make the law understandable here. At least that’s the theory.