October 15th, 2020

Cuomo Throws Monkey Wrench into Malpractice Immunity Law

When COVID-19 came to New York, the Legislature moved fast to grant widespread immunity to hospitals and nursing homes for virtually any acts of negligence that occurred, including, obviously, medical malpractice.

Realizing that such immunity was far too broad, the Legislature then pared it back. See, from August 4th, Cuomo Signs Bill Limiting Medical Immunity.

The key element of what will entitle medical practitioners to immunity now is whether they were “impacted” by the pandemic. The relevant time period shift in the law is March 7 to August 3rd. And yes, “impacted” is vague.

When this paring back of immunity occurred, I wrote of what the future would bring for any nursing home or medical malpractice suit brought within the key time period:

Coming soon to lawsuits and motion practice: Arguments that any medical or nursing malpractice case for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune, as defense lawyers scramble to argue a COVID “impacted” hook.

But now Gov. Andrew Cuomo has monkey-wrenched the arguments of malpractice defense lawyers throughout the state.

How did he manage to do that? In an interview with CNN, he said that New York’s hospitals “were never overwhelmed” at the peak of the COVID-19 pandemic.

Yowza! So hospital lawyers, defending malpractice cases, will obviously all want to claim their hospital or doctor was “impacted.” But the Governor just said the the hospitals “were never overwhelmed.”

Now you can try to parse the differences between those two phrases, but the ultimate answer will no doubt result in intense factual disputes.

This may well mean that attempts for fast victories on motions to dismiss — asserting that based on the pleadings alone there is no cause of action — can be easily shot down.

But will they be dismissed based on lack of evidence, as happens with summary judgment motions? To grant summary judgment there must be an absence of a factual dispute. Because factual determinations are for juries, not judges.

Any thoughts that such dismissals will come easily should now be out aside. Plaintiff’s bringing actions that fall within the applicable time period will be wise to add claims that treatment was not impacted by the pandemic.

And defense lawyers would be wise not to think that some conclusory affidavit from a hospital administrator will easily win them the day. Because I don’t believe they will.

We will be going someplace in discovery that we don’t usually go: Lawyers will now be looking at who else is in the hospital, what kinds of patients they were, how many beds were filled, etc., all in order to prove that care was (not) “impacted” by the pandemic.

An easy example: Patient goes to a New York City hospital for COVID in late June. Patient needs medication for condition. Wrong dosage is given by young intern who just started out on July 1 — instead of 0.5 mg it is 10.0 mg. Was treatment “impacted” by the pandemic?

Hospital argues that patient was only in hospital due to COVID.

Patient’s counsel argues that hospital was not understaffed and rushing around like chickens without heads at the time. There were, in fact, empty beds and staff available as the pandemic in NYC was slowing down.

The Governor just handed a big fat factual dispute to litigants throughout the state who, perhaps, thought the matter would be easily resolved in favor of medical practitioners.

Discovery may well be going where discovery has not gone before.

October 14th, 2020

What Does A Pandemic Jury Look Like?

Watergate jury, by John Hart. The original hangs in my office.

Yesterday I wrote about the post-pandemic law office, and depositions and court conferences. Today I shift to jury trials.

On Monday, New York’s Chief Judge put out a statement with lots of good news, including the fact that experimental jury trials have started. For the courts outside of New York City, 70 criminal and civil trial have now been scheduled, and many completed.

See: Judge Janet DiFiore October 12 StatementDownload

And jury trials are to start next week in New York City. As per CJ DiFiore:

In New York City, our current plan is to restart civil jury trials next week, although we are carefully monitoring the COVID metrics in different areas of the City and have not yet finalized decisions on the number or locations of these initial jury trials. You can be sure, however, that we will make responsible decisions based on all of the latest data and public health guidance, and that no jurors, lawyers or witnesses or members of our staff will be asked to report to our courthouses unless we are confident in our ability to protect their health and safety. And every trial that does take place will be conducted in a building that is operated with the full range of safety protocols that have been implemented, tested and refined to protect the hundreds of jurors, lawyers, witnesses and staff who have already safely participated in our jury trial pilot over the last several weeks.

As someone who makes his living in the courtroom well, I’m obviously happy to see jury trials restart. For it is only with a jury in the box that an insurance company will be forced to come to the table in good faith to negotiate.

But. And you knew there had to be a “but,” didn’t you?

What will these jurors look like who appear amid a pandemic? Will they be representative of the general population, so that litigants have a jury of their peers?

Unlikely.

The jury pool as a whole is most likely to be skewed.

We can start with those most vulnerable to COVID-19: The elderly. What percentage of our seniors/retirees, who ordinarily would show up for their civic duty, will say “no way, ain’t gonna do it.” Because virus. This demographic is almost certain to decrease.

How about those with underlying respiratory conditions? You can rest assured more of those will also stay home than would ordinarily show up. And many of these will have conditions exacerbated by poor health care.

Minority populations? Black populations have been especially hard hit, and it would be reasonable to assume that, as a percentage, fewer would want to come into the close confines of a courthouse no matter how much the judiciary says it will be safe. Because potential jurors won’t really know what the lay of the land will look like until they get there.

Mass transit users? Less likely to come to the courthouse while those that can afford private transportion are more likely.

And what of those that think the virus is no big deal? This population, generally conservative, will be more likely to come to the courthouse to serve.

So, in summary, the jury pool in New York City is now likely to decrease the number of seniors, those with respiratory issues, Blacks, and the poor, and conversely more likely to include those who are young, white and conservative.

I’d love to say that I have a solution for this problem. I don’t.

But I’m open to suggestions. And I bet the judiciary is also once they recognize the problem.

October 12th, 2020

The Post-Pandemic Law Office

One day this pandemic will end. I don’t know when, but it will.

And when it does end what will the future hold for those lawyers who actually know where the courthouse is located and go there on a regular basis? I’m glad you asked.

First and foremost, the courts have partially adapted. Necessity is the mother of invention and all that.

Virtual depositions are going on, despite the fact that some defendants tried to argue that there were reasons everything should be put on hold. And many lawyers are finding out that little is lost in taking testimony this way. You want to be in the room with your client? OK, you can do that. But if opposing counsel or the stenographer doesn’t want to be there, then they can appear virtually. Win-win.

Virtual conferences are now taking place daily with courts. Lawyers know all too well the time spent traveling to/from court and the time waiting (and waiting, and waiting) on those hard wooden benches for your five minutes with the judge. Those are now a thing of the past. Hopefully they will stay that way.

Because most appearances (on personal injury matters) are for discovery issues, and most of it is usually handled in the hallway outside the courtroom anyway. Only a small fraction of important issues need judicial intervention, and most of that can be done virtually.

Many appearances are mere status conferences where, literally, nothing happens at all other than giving you a date to come back in the future. (Yes, dear non-lawyer readers, this stuff was still going on as of the pandemic’s start.) Does anyone really need to kill three hours going to court to be told “We think your trial will be in seven months”?

What does all this virtual appearing mean? It means that, if you want to make your best appearance, your office is now turning into a TV studio. You need to be well lit, well seen, well heard and have a decent professional backdrop.

While I wrote, back in March at the dawn of the pandemic, a list of tips for dealing with this while it was ongoing, I think now that virtual appearances are here to stay. They are successful. So to the extent virtual appearances have been jerry-rigged until now, lawyers should see this as being permanent. The future has arrived.

Think of it this way: You formally may have shelled out $500 – $1,000 for a good suit. So you would look professional in court. Why wouldn’t you also put on your best face virtually?

Incredibly, I’m told by judges, many aren’t doing it. They are oft times phoning it in dressed in casual clothes, or from remote areas with lousy wi-fi. It does not serve your client well to disrespect the court.

You have two offices, the first being the high-priced storage facility that is on your letterhead and the other being your home. One day you will get back to the real office, and may have already started. But the virtual appearances will (hopefully) continue for many of the routine things we do.

For me, I’m moving my office shortly (unrelated to the pandemic) and you can be sure that the nice bookcase I bought 30 years ago will be behind me and I’ll have lights in front of me.

Home offices are trickier, of course, due to the myriad differences from one to the other. But absolutely required — even if forced to appear from the kitchen table in a two-bedroom apartment you share with a spouse and kids — are a good connection, court clothes, good audio and decent lighting. Webcams and lights can be bought for under $100. There’s no excuse for appearing in court as a backlit shadow.

Since virtual appearances are likely to continue past the pandemic’s end, you might as well make those investments now.

Think of it as buying a suit. And spend accordingly.

October 6th, 2020

New York’s Pandemic Toll Coming to An End for Civil Cases (updated)

Back on March 7th, Gov. Cuomo declared an emergency in New York due to then COVID-19 pandemic. And with that, issued a tsunami of Executive Orders.

One of those orders tolled the statute of limitations (Executive Order 202.8) effective to March 20th. That tolling was widespread for a number of different areas, inclusive of all civil cases, and included:

any specific time limit for the commencement, filing, or service o f any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws ofthe state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date ofthis executive order until April 19, 2020

I wrote about the need for this on March 16th, and the Cuomo signed the order on March 20th. Yeah, I’d like to claim credit, but I’m no fool. The need was obvious.

Thereafter, every 30 days Cuomo extended the toll (or is it merely a suspension? See update) another 30 days.

The courts were closed. Lawyers and clients alike were sheltering in place, and to this day some lawyers still have not gone into their offices, which are now just very high-priced storage facilities.

For the non-lawyers that may be reading, a toll means an effective freeze. If there was 60 days left on the statute of limitations to sue on a car collision, you would still get that 60 days when the toll was lifted. If you slipped and fell on ice in a ;parking lot in the middle of July while the tolling was in place, the statute of limitations would not start to run until the toll was lifted.

But now the toll (if it is a toll, see the update) is being lifted for civil cases, as noted in the subject heading. It ends on November 3rd (Election Day) as per Executive Order 202.67, 228 days after it started.

So, a practitioners note, if a client has a matter that needed to be put into suit, and you were dilly-dallying because of the tolling, dilly-dally no longer.

And if you continue to dilly-dally, make sure your professional liability premiums are paid up, if you get my drift.

And as for the non-lawyers, the potential clients who want to make personal injury claims, yet waited and waited and waited until the statute of limitations was about to expire, don’t be surprised if lawyers won’t let you in the door. See #10 of 10 Signs The New Matter is a Dog (Before you even consider the merits).

Update: In the New York Law Journal, Justice Thomas Whelan (Supreme Court, Suffolk County) argues that the courts may not view this as a tolling of the statute of limitations, but as a suspension, thereby creating a trap for the unwary. There are, obviously, no cases on this yet as the Executive Orders won’t expire until November 3rd:

While a toll stops the running of the limitation period, with a tacked-on time period, a suspension of the statute of limitations would provide for a grace period until the conclusion of the last suspension directive in the latest executive order, a significantly shorter time period.

The basis of the argument is that, while the original EO specifically said the statutes of limitations were “tolled,” the seven subsequent orders that extended it state that they “temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or part thereof, …”

Thus, “tolling” in the original and “suspension” in the follow-ups.

Each of the orders cites as its authority Executive Law §29-a, which permits the governor to “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency…” It does not use the word toll.

If it is a suspension, as Justice Whelan argues, then you don’t tack on to the end of the statutory period the number of days in the toll. You simply get a grace period until the end of the suspension if your time would otherwise expire, and that means a flood of filings between now and when it ends.

The essence of the issue is this: Did Gov. Cuomo exceed his authority under Exec Law 29-a by creating a toll, when only a suspension was authorized by the Legislature? And what of the litigants that relied on the Governor’s use of the word “tolling?”

The bottom line, in the words of the late Prof David Siegel, Grand Guru of all that is New York’s civil practice law and rules: You don’t want to be the test case. File your damn papers now.

August 19th, 2020

An Ultrarunner, An Amputated Leg, and Liability

The footrace race ranged 340 miles across the South. Kim McCoy, a 37-year-old nurse in NYC, had already finished 270 miles of it. Then the SUV hit her at an uncontrolled intersection and she lost her leg. Apparently, she’s lucky she didn’t lose more.

This post hits three different spots for me: As distance runner (but not ultra marathons), as a race director who deals with runner safety, and as a personal injury lawyer that needs, when the times comes, to weigh the issue of liability for an event that may have substantial risks.

While that’s a lot to unpack, the gripping story by Matthew Futterman at the New York Times isn’t complex: This is not your local 5K or even your local marathon. The race might take you a week to finish, and that assumes you are in top notch shape. You bring little with you in a small backpack and buy food and water as you travel. You sleep wherever. And you don’t get to see a course map until a few hours before the race starts.

The event is the brainchild of legendary race director Gary (“Lazarus Lake” Cantrell who created the Barkleys Marathons which is so (in)famous among runners there’s even a “delightful documentary” on it, subtitled “the race that eats its young” because so few ever finish the 100+-mile grueling event through unmarked woods. Mostly off-trail. Many years there have been no finishers at all. These were the same woods that Martin Luther King’s killer, James Earl Ray, escaped from to prison to, and he got only 8 miles in 55 hours. The race is designed for failure.

So races that seem impossible, that stretch the bounds of what humans were once thought capable of doing, are his sweet spot.

Thus came the 340-mile race — West Memphis, Ark., to Castle Rock, Ga. — where Kim McCoy was run down by an SUV at that uncontrolled intersection. This isn’t a race with closed roads, or fancy directional markings, or even permits. Here’s the map. Go run. Good luck. See ‘ya.

But when you try to stretch the bounds of human capacity you also run headlong into injury, danger and potential death. Exhaustion makes everything more difficult and dangerous. It’s easy to miss a simple rock or root on a trail, or a car on a road, when bleary-eyed, dazed and discombobulated.

This problem came into full appreciation when McCoy tried with another runner to cross Highway 72 near Huntsville, because that is the way the route went.

They made it to the median, then thought they saw an opening. Halfway across, Grinovich saw a flash of light and pulled back. McCoy kept going. He heard a crack and was sure she was dead. Then he ran to her and heard a moan. Somehow, after being sent airborne down the highway, she had hit feet first and rolled, rather than crashing on her head. As she tumbled, her backpack had cushioned the impact.

Tucked into that NYT story of McCoy’s race across the South comes this speculation about liability for injury — after all, race director’s know that the participants may not be thinking straight and more in danger:

Who bears responsibility for McCoy’s accident is a question lawyers and insurance companies may have to decide.
She has not filed a lawsuit, but has retained a lawyer, even though she signed a waiver releasing Cantrell from liability before the race. Waivers don’t allow race organizers to act with negligence, the definition of which can be subjective.

Now I’m not going to opine on Alabama law — or even which state’s law applies since McCoy and Cantrell live in different states and the incident happened in a third. Or did it? The drawing of the map, after all, may well be the “incident” itself.

I’m sticking here with general principles (as they would apply in New York). Your mileage, as the old saying goes, may vary.

The doctrine of assumption of risk, which I have written about often, generally precludes suit against an event organizer when the risks are known and appreciated. Sometimes referred to as the “baseball rule” for spectators that are injured by foul balls or flying pieces of broken bat, it holds that you have assumed the risks inherent in the activity.

Perhaps, if the race demanded that participants do something illegal — like demanding that runners cross an interstate highway, one might be able to raise the argument that assumption of risk doesn’t apply. Race participants don’t, after all, get a map well in advance of the race and have an ability to check out the details. And even in this kind of race, a reasonable participant wouldn’t expect something illegal.

But that isn’t likely given the photo of the crossing in the Times and the comment by Cantrell that pedestrians were permitted. If pedestrians were legal here, it would be unlikely to to be a successful suit.

The key for any sporting event director is to actually show, as best you can, what the anticipated risks are so that they are appreciated. This not only helps to immunize from suit, but more importantly, actually informs people of the types of dangers they might expect so that rookies don’t errantly step into an event they are unprepared for.

I do this with the disclaimer for my own race. (I never understood those disclaimers that use unreadable ALL CAPS legal gibberish to help a participant appreciate risks.)

The story of McCoy’s incident and the loss of her leg is awful. But it isn’t likely that a lawsuit would be successful against the organizer of the race.