May 18th, 2016

Joan Rivers and New York’s Dreadful Wrongful Death Law

Joan Rivers

My Monday post regarding the settlement of the Joan Rivers wrongful death case was meant to be a two-parter. Part one to laud the lawyers and part two to write about the injustices of our current (and ancient) wrongful death statute that dates to 1847.

New York used to be progressive, with the first in the nation wrongful death law that was designed to protect injured railroad workers. There was no common law claim for wrongful death. Since an injured worker needed to be compensated, perhaps for life, but a dead one was worthless in the eyes of the law, saving the life of the worker was, ahem, detrimental to the profits of the railroad business.

In fact, not only wasn’t there a wrongful death cause of action, but even a claim for personal injuries (the pain before the death) did not survive the death of the injured person (or of the tortfeasor). It just evaporated. It was better (for the railroads) to kill workers than injure them.

Thus, the 1847 legislation. (You can read the history of it all in Grant v. Guidotti.)

But while once at the forefront of progress, New York is now a laggard in the law’s development. It has not been updated in 170 years. The law provided back then, and continues today, that the survivors may only collect “pecuniary” loss, basically meaning the wages that others depended on. And if your family member that was killed by the negligent conduct was not the family breadwinner, but happened to be an infant, homemaker or retired?

Sorry, Charlie. Children, retired seniors and homemakers have no “value” to the New York Legislature. And disaster-struck families have been told by lawyers, for generations now, that they won’t get to hold the tortfeasors responsible for their grief. They are on their own. You can blame the Leg.

Before I had a chance to fully write that piece though, Marc Dittenhoefer dropped a long comment into that first post on that subject, dealing with the Joan Rivers case. So I just asked Ditt to expand on it a bit and presto, a new guest post on the very topic I wanted to cover.

Take it away Ditt:
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Marc Dittenhoefer

I applaud the outcome in the Joan Rivers case and join in sending kudos to Ben Rubinowitz and his team for the excellent job they did on all counts. However, results like this one always give me pause in that they highlight a great inequity that still bedevils our system.

Joan Rivers endured no conscious pain and suffering, had no impending fear of death or disaster, was the legal and obligatory supporter of no one, and was worth tens – perhaps scores – of millions of dollars at the time of her death. By traditional NYS legal measures of recovery, this case should have limited value. But Joan Rivers was rich, famous, powerful, beloved and white. Ka-Ching!

Now let’s think of an unheralded Ms. Gonzalez, or Johnson, or Yee; with several children dependent upon her for support; with days, weeks even months or years of conscious pain and suffering; and with a dread of impending doom all about her due to someone else’s fault in causing her death. THAT case doesn’t settle so fast, nor for anywhere near sum likely received here.

The reason? In New York, wrongful death damages are measured by two things:

(1) conscious dread, pain and suffering of the decedent, and

(2) monetary loss to those legally dependent upon the decedent for support.

Joan Rivers went to sleep fully well expecting to wake up shortly, felt no pain and suffered not at all, and left behind as an only survivor a fully grown, emancipated and high-earning woman in her own right who stands to inherit generously from her mom’s Estate. But for her fame and public profile, the measure of damages here would be negligible by current legal standards.

But an unknown single mother of 3 with no special skills or educational advantages, earning modest wages and perhaps even lingering in a death-spiral of pain for months on end? Who also happens to be the family matriarch giving love and guidance to those within her household?

Defendants would be in no particular rush – nor in the grips of any particular generosity – to amicably resolve that case to the benefit of the motherless children in dire need of whatever recovery their lawsuit might hold. Those moms do not make the headlines: no insurer seeks to avoid bad publicity by paying quickly or generously for them. While the Rivers’ settlement is celebrated by the tabloids with speculation of an 8-figure sum, the lesser recoveries of the “ordinary” litigants are decried as “runaway” results when the press pays attention to them at all. Yet the self-same interest of improved public health is served in both instances.

Fame has its privileges, all right. But NY’s laws need to recognize that:

(1) the current measure for damages in a wrongful death scenario is woefully dysfunctional and out of date, and

(2) “regular” folks need to be afforded the same quality of justice that the rich and famous get, even if their cases do not alway make the papers.

“Wrongful Death” reform is long overdue.

May 16th, 2016

Joan Rivers’ Lawyers (How did they do?)

Joan Rivers in 2010, via Wikipedia

Over the years I’ve had a few occasions to take my own to task over crappy lawyering. Today, however, is not one of those days. If I’m going to spend time skewering bad stuff, I should also laud the good stuff.

Following the death of Joan Rivers during a routine endoscopy in 2014 at a small private clinic, her daughter Mellisa went out and hired counsel to investigate and bring suit.

Deaths during routine procedures are not supposed to happen, so hiring counsel was logical. If not, they may never have learned about the breaks of protocol that occurred. From the New York Times:

Ms. Rivers was to undergo a laryngoscopy, an examination of her voice box and vocal cords, and an endoscopy, which involves looking at the upper digestive system and is performed under anesthesia, according to a report by the New York City medical examiner’s office, which investigated the death.

According to the malpractice suit, the doctors were so eager to please that they violated protocols, and at one point [Medical Director] Dr. [Lawrence] Cohen pulled out his cellphone and took a photograph of Ms. Rivers on the operating table.

Enter, stage right, Ben Rabinowitz and Jeffrey Bloom from the highly respected firm of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. The case has now settled — exceptionally quickly, I might add — and is in the news again.

But this is the part that really jumped out at me from the Times article, and the reason for today’s piece:

The lawyers for the Rivers family, Jeffrey Bloom and Ben Rubinowitz, said they did not reveal the amount of the settlement because they wanted to focus on improving patient care. But they said it was “substantial.”

That’s right, there is no settlement number in the article. No blaring heading with a ginormous number, as there would be with 100% certainty if the amount was revealed. Instead, the lawyers focused on the fact that patient safety was at issue.

Now, if you Google the story, you’ll see tons of stories that focus on patient safety.

While the settlement amount may one day come out, as the will (I presume there is a will) gets probated, it was not part of the initial round of press. The information that comes out later will talk about the size of the overall estate (her estate is valued at $x million — as opposed to being simply about the lawsuit), and the settlement amount will be partially buried as part of another story.

Now let us contrast this with the conduct of the lawyer that sued Red Bull for $85M or the lawyer that sued on behalf of a dog bite victim for $30M. Both created screaming headlines and a fusillade of negative comments from those that saw the stories. Both of those cases served to diminish, devalue and demean the practice of law and the people that we represent, due to the outlandish claims. Because they used outrageous numbers (when they were not permitted to use any number at all) the story ledes were about those numbers, and not the issues of safety.

The really important stuff for the Rivers suit, from the point of view of how to practice as a lawyer, was at the very end of the article:

Melissa Rivers and her lawyers, however, said they did not want the focus to be solely on what happened to the famous entertainer.

They said that the case highlighted the lax oversight at outpatient surgical centers, and that they would be working to advance legislation in Albany to ensure that these clinics operate under the same minimum safety standards as hospitals do.

“Profit cannot be placed above patient safety,” Mr. Rubinowitz said.

A statement Melissa Rivers put out said:

“Moving forward, my focus will be to ensure that no one ever has to go through what my mother, [my son] Cooper and I went through and I will work towards ensuring higher safety standards in out-patient surgical clinics.”

It just made me want to stand up and applaud, which was kinda tough since I was in a car at the time, but you get the idea.

This part about publicizing the money, by the way, is a tough line to walk on sometimes, as both their firm and mine (and many, many others) talk about past results on our websites, so that potential new clients know what kind of experience we have. As a general practice though, it is without names.

But when it comes to the press we must behave differently. The web sites, after all, are only read by those that are actively looking to hire counsel, whereas news stories are pushed into the public light and help to shape public opinion. And when I write public opinion, I mean that they shape the minds of potential jurors.

Public safety needs to be the theme of the news stories, just as it is a theme in jury selection and trial. That is why we talk, in the medical malpractice world, of deviations from customary and usual practice. Because the customary and usual practice equals safety.

And then there was this from the Times:

The doctors agreed not to contest the suit’s findings. A spokesman for Yorkville Endoscopy said: “The parties agreed to settle this case to avoid protracted litigation. We remain committed to providing quality, compassionate health care services.”

That is another highly unusual bit, as almost every settlement agreement has some statement about the defendants not admitting liability and stating that this is merely a business decision. This appears to be absent.

And finally, a third unusual piece — an actual whistle blower’s report from inside the center:

The main anesthesiologist, Dr. [Renuka] Bankulla, concerned that she would be blamed in the death, wrote out five pages of notes on the day of the procedure detailing what she saw and heard. Lawyers for the Rivers family said they were greatly aided in their case by Dr. Bankulla’s notes.

I’ve only had one case in 30 years where a doctor did a tell-all operative report from the inside. Other lawyers I shared it with said they had never seen anything like it, despite practicing even longer than I.

But every so often there will be doctors on the inside, who have seen the catastrophic failures, and elect not to be in on the cover-up. They object to the White Coat of Silence and become our Serpicos. It’s exceptionally rare, but it can happen.

And so, on this Monday morning, a tip of the hat to counsel for the estate of Joan Rivers. Not for how they handled the case, but how they handled the press. It’s a model others should follow: Focus on the safety, not on the number.

September 5th, 2014

Joan Rivers Death and ‘Risk of the Procedure’

Joan Rivers in 2010, via Wikipedia

The phrase grates on me big time, that a poor medical outcome was a “risk of the procedure.” And so it is now that we see in a couple places with the death of Joan Rivers after she stopped breathing during an out-patient endoscopic procedure, that the phrase “risk of the procedure” is popping up, as if to excuse what happened.

One leading possibility for death, of course, is that it was related to the anesthesia, which Ms. Rivers likely had numerous times considering all the jokes she made about her own plastic surgery. A sudden allergic reaction wouldn’t exactly be on anyone’s list of possible causes.

At HCP Live, a medical website, they first look at the incidence of cardiac arrest from anesthesia, and it looks positively frightening, by starting out like this:

Although perioperative cardiac arrest due to anesthetics occurs just 10.8% of time, according to the Mayo Clinic, it represents the most serious complication and can have devastating results, as witnessed by the recent death of comedian Joan Rivers.

Wow!!! 10.8% of the time?!?

Well, not quite. That would be 10.8% of all cardiac arrests, which itself are quite rare. Not in the HCP article, but deep into the linked Mayo Clinic article is this:

At the Mayo Clinic, the incidence of arrest primarily attributable to anesthesia was 0.5 per 10,000 anesthetics, which represented 10.8% of cardiac arrests that occurred preoperatively…

So, the incidence of cardiac arrest is actually exceedingly rare.

Moving on, the article starts goes to the potential medical excuses for what might have happened:

The surgery was apparently a minor, elective procedure, but the complications Rivers suffered reminds patients and providers that there are always risks to be considered during surgery. Some of the factors that can increase the risk of cardiac arrest during surgery include coronary artery disease, cardiomyopathy, congenital heart disease, and heart failure.

And what is missing? The failure to properly ventilate or medicate the patient.

Want to know why excusing a bad outcome by simply saying it is a risk of the procedure is so awful? Think about getting hit in the rear by another car while driving. Hey, you knew that others on the road might not be paying attention, didn’t you? Isn’t an auto collision (not an accident) one of the risks of being on the road? Do we excuse that inattentive driver because you knew that being on the road was risky?

Senator Rand Paul pulled a similar stunt with BP’s gulf oil spill, dismissively saying “Sometimes accidents happen.” Sure. Or maybe the company acted with “conscious disregard of known risks.”

Sometimes a deer bolts into the road and can’t be avoided. But sometimes, someone is following too close and rear-ends you because they didn’t leave enough room to stop.

What is the standard here for the Rivers matter in evaluating possible medical malpractice? The standard to look for by investigators, be they New York’s Department of Health (now underway) or the family’s private lawyer, are twofold in looking at the acts or omissions of the medical staff:

Was the act (or omission) a departure from customary and usual medical practice?

Was that departure (or omission) a substantial cause of injury/death?

Simply calling something an “accident” or saying it is a “risk of the procedure” is the type of language that immunity-seekers use (i.e. defense lawyers in the courtroom). But it isn’t the law.

The press should take note in writing stories on the subject, and be careful of the highly dismissive “risk of the procedure” lingo that may flow from some places.