November 25th, 2009

New York Attorney Sues Internet Poster for Defamation After Impersonation (Psych Hospital Sued)

A partner at a leading New York law firm has brought a defamation suit against a local mental hospital, claiming that it defamed him by impersonation in an internet forum, and creating video that asserted he supported “pedophile rapists.” The defamation was, according to the suit, retaliation for comments the attorney had made about the hospital.

Glen Feinberg, a partner at Wilson Elser Moskowitz, Edeleman & Dicker (which does a lot of medical malpractice defense among its other lawyering) has been a long-running critic of SLS Residential. According to this story in Courthouse News, Feinberg claimed that the psychiatric hospital was fined “$110,000 for numerous violations, including illegally restraining and medicating patients against their will, depriving patients of the right to their own clothing and money, and preventing them from communicating with the outside world or leaving the facility.”

According to Feinberg’s suit, comments that were falsely attributed to him started to appear on the web in 2008 followed by videos that appeared on YouTube that called him a “saviour to pedophiles” and a “slime ball who should be disbarred.” Feinberg says that the videos were prepared by Andrew Rath of A. Rath Productions, who is also a defendant in the suit.

One lawyer I spoke with that tried a medical malpractice case with him to verdict some years ago had this to say: “Glen was a gentleman and a very capable trial lawyer. He was easy to get along with and trustworthy, both of which are important qualities when standing up in court.”

In preparing this blog post, I noticed that a number of other blog postings had referenced Feinberg but have now been taken down.

Feinberg is a long-time critic of SLS, having apparently claimed that they traumatized his son back in 2001 and 2002. He has picketed the hospital in the past and been engaged in First Amendment litigation over it.

In other words, this battle is deeply personal. And one thing I’ve learned over the years is that there are few people on this planet more motivated than an angry parent.

(hat tip to Hochfelder)

Much more here:


August 6th, 2009

Michael Jackson: Malpractice or Manslaughter (Or Something Else)?

The news that’s been leaking out of Los Angeles is that Michael Jackson was administered the anesthesia drug propofol by his doctor, Conrad Murray, the night before he died. And that a manslaughter investigation is under way. Other news is that his doctor may have prescribed drugs to Jackson under multiple names.

So it’s time to revisit the post I made the day after he died (Michael Jackson: The Mother of All Malpractice Suits?). At that time I wrote of three potential issues for a doctor that was seeing him if medication issues lead to his death, which I re-examine below:

1. Medical license issues;
2. Medical malpractice; and
3. Criminal prosecution.

I had a number of questions the day after he died, most of which remain unanswered since the autopsy results are not public nor are the toxicology reports. But I wrote this at the time regarding criminal liability:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don’t generally bring these kinds of actions, they also don’t usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

So, assuming that Murray gave the drug, and also assuming that Murray prescribed drugs to Jackson under multiple names (both of which are just rumors), how does this change the equation?

First, let’s be clear that the only reason this manslaughter investigation is going on is because the decedent was big-time famous. This type of investigation would not go on for the other 99.999% of the population.

Second, I’ll assume without bothering to look it up that giving out prescriptions under phony names violates a few laws.

That being said, if those two things are true, then I predict the following:

1. His license to practice medicine will be revoked. The alternative of suspension doesn’t really exist because of the big, bright media spotlight.

2. A malpractice case will be brought and the insurance company (if any) will try to settle quickly for the limits of the policy (in New York the usual primary policy is $1.3M). There are a few reasons for this, the first being it is rare to have government workers do your investigation for you in a malpractice case, but that is the case here. Discovery will all be done by the police and District Attorney. Add in that the insurance carrier won’t want to throw good money after bad in a case like this while the world is watching. So while a million bucks might not mean much in terms of Michael Jackson, it’s still a million bucks and better in the pockets of the kids then in the pockets of the insurance company.

The big wrench thrown in to this kind of quick settlement is that the lawyer that brings the case for the family will likely have intense pressure to get more than the insurance policy; they will want a whopper of a punitive damage judgment against Dr. Murray.

Why? While I’m guessing that this doctor probably won’t have much in the way of assets after he pays his criminal defense fees, he could still make a bucket of money writing a book or otherwise selling the rights to his story. A judgment against him allows him to be pursued for those fees, the same way that OJ Simpson has been pursued by the Goldman family after they collected a big civil judgment against him. The family will want this done so that Murray cannot profit from his conduct.

3. Criminal law. Dr. Murray will likely face fraud charges regarding the phony prescriptions. And I’m guessing he might face a Martha Stewart Charge (obstruction of justice) for lying to the police regarding his actions. That opinion is based on the doctor being interviewed by the police shortly after Jackson’s death, but that the room was apparently not treated as a crime scene until much later. A search warrant was issued three weeks after Jackson’s death. I therefore guess that Dr. Murray wasn’t particularly candid about the degree to which he had been medicating Jackson (if the rumours are true) and that will expose him to an obstruction charge.

But will he face a manslaughter charge based on reckless conduct? If it was my family or yours the answer would be an easy no because the investigation never would have happened. If it happens here, it is only because of the notoriety of the case. So my best guess is no, though the all-important toxicology results have not been made public. If I’m wrong about the charge I think it will be because of community or political pressure or publicity-seeking by the DA, or something truly remarkable in the toxicology results.

So here is my guess from the cheap seats:
1. Loss of license;

2. Malpractice case that nets the limits of any insurance policy, with continued pursuit for a judgment against Murray so that the doctor can’t profit by selling the story; and

3. Criminal charges regarding obstruction of justice and fraud regarding the prescriptions. If charged with manslaughter, he will be found not guilty based on what we know right now, but the toxicology results can change that in a New York second.

Update: See Michael Jackson’s Mom To Start Wrongful Death Action Against Concert Promoter? (8/18/09)


June 26th, 2009

Michael Jackson: The Mother of All Malpractice Suits?

With Michael Jackson’s sudden death yesterday at 50 have come swirls of rumors about prescription medications he was taking for dancing related injuries. And if toxicology tests show over-medication being a substantial cause of death, that leads to the inevitable questions regarding potential medical malpractice as well as potential criminal liability.

So these are the issues and questions that would/should float about if those rumors prove accurate:

1. Were the medications all provided by a single doctor? If the self-proclaimed King of Pop was getting all the medication from one place, then the prescribing doctor ought to have a good lawyer due to issues of criminal prosecution (possible but unlikely), action against the medical license (much higher probability) and civil suit (discussed below).

2. If there was more than one doctor, did they know about each other and what the other was prescribing?

3. Did all the drugs all come from one pharmacy? Did that pharmacy have an internal system to tickle the pharmacist if there is an inordinate amount of medication going to one person or that some of the drugs are contraindicated given the other meds? If so, did that pharmacist make a call to the doctor(s) issuing the prescriptions?

4. Where were the prescriptions written and filled? This would be a jurisdictional issue that could be particularly important for a pharmacist, who may have immunity if s/he simply followed the doctor’s orders. There is no way to know at the moment if the drugs were prescribed, or even filled, in the U.S. given that Jackson spent a substantial amount of time overseas.

5. Who has standing to bring such a suit? That is a two-part question, as his personal property may be governed by an executor or administrator. But he also has three kids that are all minors and need a legal guardian. Will the mother of two of them, who reportedly gave up legal rights to the kids, be seeking that position in a fight with family members? (This also assumes proper paternity.)

6. From the point of a medical malpractice suit, does it even matter? Jackson was allegedly in debt to the tune of over $300 million, though I suspect a forensic accounting may take some time. But if this was the case of one or two doctors/pharmacists, then there would likely not be much more than a million dollar (or two) insurance policy. When you are that steeply in hock, a malpractice suit may be too insignificant to matter (assuming a limited insurance policy). The estate’s executor and creditors may be unlikely to have an interest, concentrating on the big picture.

7. You can toss out #6 above if the investigating authorities make a slam-dunk decision on liability. That makes a lawsuit easy, and no one would give up an easy million if it were there.

8. In a wrongful death suit, by contrast, the losses suffered by the children would likely go directly to them, bypassing the estate. And if the estate itself is bankrupt, then the kids might actually need the money depending on how Jackson managed his affairs and the nature of any trusts he did (or did not) set up for his children. You’d like to think he was a savvy music mogul, but if he also saw himself as a forever young child, then estate planning could well be something he put off for the future. No one really likes to make decisions about their death, least of all someone with a child’s view of the world.

Best guess from my perch in the cheap seats:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don’t generally bring these kinds of actions, they also don’t usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

B. Civil liability in a medical malpractice suit on behalf of the estate is not likely to garner much of a return relative to the debt. It only comes if authorities find an easy case against someone.

C. The kids will pursue a wrongful death case (via their guardian, whoever it may be) only if: Jackson failed to provide for them; there is little left in the estate after the creditors tear it to pieces; and the case is an easy one.


(Top photo courtesy of Rolling Stone, with more here. Headline from Extra, Rio de Janeiro)

Links to this post:

why the michael jackson wrongful death lawsuit may be worthless….
well, it hasn’t been filed yet, but there’s no doubt its coming– a wrongful death lawsuit by the estate of michael jackson. some lawyers are calling it the “mother of all medical malpractice lawsuits.”

posted by h[email protected] (Blog Author)15999 @ July 28, 2009 9:00 AM

personal links: july 4th weekend edition
if you have any suggestions for links, send me an email, i’m all ears. maryland specific links are at the bottom: the new york times reports that general motors will continue to have responsibility for products liability lawsuits filed

posted by @ June 30, 2009 9:53 AM

friday follies 1.5
a few more michael jackson law-related (at least tangentially) headlines: what will happen to michael jackson’s kids? and michael jackson: the mother of all malpractice suits? (via) and, of course, michael jackson’s will: the details,
posted by Tim @ June 26, 2009 5:44 PM


June 10th, 2009

Brooklyn Man Sues for Humiliation and Disappointment

A Brooklyn man filed suit yesterday against for humiliation and disappointment. That humiliation, of course, will be nothing compared to being known as the guy that sued for humiliation and disappointment. His name is Sean McGinn.

It seems that the women McGinn was sending missives to were no longer on, but the service kept their names and profiles up anyway. Having sent hundreds of letters, this tended to waste a lot of time. He was steamed. He started a class action based on deceptive practices.
But it seems to me that if he has a legitimate beef about his time being wasted, then that is what he should have sued for. Overreaching into the realm of a personal, psychological injury is just the kind of thing that will get you skewered up, down and sideways. It’s a distraction from the real issue, and not a healthy distraction.
It’s not unusual to overreach, of course. Judge Robert Bork famously did that when his lawyer sued — when he slipped ascending the dais at the Yale Club for a speech and hurt himself — for “in excess” of a million dollars, punitive damages, legal fees and interest from the time of the accident. Even if the hematoma on his leg that he claimed he needed surgery for was significant, New York law doesn’t even provide for legal fees and interest from the time of the accident in such an instance, and punitive damages were an idiotic claim. The reputation of this tort “reformer” was badly tarnished by his hypocrisy in overreaching.
The lesson? Don’t overreach in demands. Because an legitimate complaint will get overshadowed by the illegitimate ones.

Links to this post: your inactive profiles are breaking hearts
sean mcginn of brooklyn, and lawyers seeking class-action status, say left canceled profiles up, resulting in “humiliation and disappointment” suffered by paying members who sent love-struck missives to the old accounts.
posted by Walter Olson @ June 11, 2009 11:16 AM


May 15th, 2008

JetBlueLoo Follow-Up: What Really Happened?

A new account of the JetBlue toilet lawsuit by Gokhan Mutlu is now out, differing substantially from the original story. The version that was in the news on Monday resulted from a $2M suit filed in New York for forcing this passenger to sit in the toilet. The story sounded “ludicrous” to me, and I said so (See: Jet Blue Hit With Toilet Lawsuit).

While JetBlue didn’t respond in public to the allegations, another version, albeit third hand, dripped out in the comments in my blog in the post above.

According to this account, Mutlu was riding free and the captain was the one who got him on the flight:

He begged [captain] to help him get on flight – excersising Caring value CA said he would ASK jumpseating (Not [deadheading]) FA if she was willing to give up seat for pass rider. She was.

Then when the captain went to answer the call of nature mid-flight:

When on bathroom break, non rev approaches barrier and again really thanks CA for helping him get on. CA replies no problem – I didn’t really do anything -if you want to say thanks its the FA who gave up her seat..have a nice day.

And that, apparently, was the last the captain saw of the man until after the flight:

Sees nonrev after flight – very upset. He let [flight attendant] sit in his seat and she fell asleep. Other FA’s would (correctly) not let him sit on FA jumpseat. He was too timid to wake up FA and didn’t know what to do.

I can’t say if this is inaccurate water-cooler gossip or an accurate account. The account is likely a mixed bag, as most such stories are when passed along like the game of telephone, but I think it’s safe to say that JetBlue’s account will likely vary substantially when they do respond to the suit.

The original story just seems a bit too bizarre. There would simply be waaay too many witnesses for any flight crew to allow such a violation of flight regulations to occur — and it would involve the entire flight crew letting this happen. I remain skeptical of the original account.


Photo credit: Wikimedia Commons