October 7th, 2013

Lawyers, Politics and Civility


Mark Bower, today’s guest blogger.

Mark Bower steps in today to offer a guest blog on lawyers and politicians:


Several years ago, with considerable fanfare, our courts put in place a new Code of Civility. The Appellate Divisions recognized that the loss of courtesies and honor between adversaries was hurting the profession and the pursuit of justice.

After the initial fanfare, the code fell into widespread disuse, largely because our judges refuse to sanction abusers. With the desuetude of the code, the level of incivility has increased to the point that now, some attorneys are publicly musing about surreptitiously recording legal proceedings on their cell phones, so that the abuse can be documented and put on display. However, surreptitious recording is itself a form of incivility, and so the cycle goes ’round and ’round.

This is worsened by our judges’ belief that “fairness” requires everyone get a little of what they want, and sacrifice a little of what they want, so that if each side is denied 20 percent of what they asked for, that automatically is “fair.” Sort of like the wisdom of Solomon, except the cutting the baby in half merely produces two halves of a dead baby, and in today’s uncivil climate, one cannot count on one side to sacrifice their self-interest to save the baby’s life.

That one side might be clearly right, and the other clearly wrong, doesn’t matter; all that matters is that each side gets a little and loses a little, because that is “fair”.

Will McAvoy put it nicely: If the Republicans do fourteen ridiculous things, and the Democrats do one, does the media have to concoct and report thirteen fictitious things in order to be “fair and balanced”? (“The Newsroom,” season closer, “Election Night, Part II,” at approx. 41:30.)

The result of this misconceived calculus is that the more outlandish one’s demands are, the more one benefits by having an equal portion disallowed. Reasonablemess is disproportionately punished, while being outrageous is disproportionately rewarded. Misconduct is promoted, and good conduct discouraged.

This insanity is on full display in Washington. Although Grover Norquist’s stated goal is to shrink government to the size that it can be drowned in a bathtub; although Ted Cruz plainly stated he would shut down the government rather than allow the Affordable Care Act to go into effect; although most of the GOP wants to eliminate the Departments of Education, Energy, EPA, etc., and are delighted that they are shut down; in the interests of “fairness,” the mainstream media gives prominent play to grandstanding chickenhawk politicians who enthusiastically support the shutdown but pose with veterans at war memorials to glom onto their heroism, and give equal time to spinners who proclaim the shutdown to be the president’s fault.

Will McAvoy’s question hangs heavily in the air.

Our country’s international standing is going into the toilet, and we look like a nation of fools, but the right-wing is genuinely indifferent. If the USA defaults on its national debt, and the most secure and stable investment ever known to man becomes unpredictable and volatile, doubtless this will also be spun as the Democrats’ fault, and that Big Lie, too, will get equal play with the media.

Which brings me back to the demise of civility. The rules of discourse have changed on a broad scale. Fairness, candor, and honesty are devalued, and outrageousness and hyperbole rewarded. On the other hand, occasional displays of professional courtesy get nice recognition, but they are noteworthy because they are rare. The decline of civility, and its insidious effect on fairness, is a pervasive mindset problem, for which I see no ready solution.


November 5th, 2012

Ethical Duties of “Independent” Counsel for a Hospital’s Resident

Mark Bower

While this guest post is based on a hypothetical, the ethical issues raised are the type any lawyer may encounter in a medical malpractice case that implicates a hospital resident.

The author, Mark Bower, is not only a long-time medical malpractice practitioner whom I’ve known for decades, who has guest blogged in this space before (and again here), but he has also been a member of the Ethics Committee of the NY County Lawyers Association for 20 years. In other words, this piece is right in his wheelhouse…

——————————————By Mark Bower

Ordinarily, doctors sued for medical malpractice view their insurance company as their friend and protector, but sometimes, that is not at all the case.

Let us assume a hypothetical case for purposes of illustration: A hospital, its senior private attending physician, and an employed resident physician in training, are sued for medical malpractice (birth trauma). The hospital’s resident is a young obstetrician. There is a question as to who delivered the baby. The person who (mis)handled the delivery is the “target” of the malpractice claim.

Continue the hypothetical: To protect its senior attending, the hospital and attending physician both claim that the resident delivered the baby. To defend herself, the resident claims that the attending physician did it. This factual dispute cannot be resolved by the delivery record, and the mother’s recollection of the difficult birth is not accepted as reliable.

Because the hospital wants to protect the senior attending physician, hospital’s attorneys cannot simultaneously defend the resident physician. The insurer for the hospital must retain “independent” counsel to represent the hospital’s resident.

Let’s develop our hypothetical further. Let’s assume that eventually, the case is settled by the hospital’s attorneys. Because the hospital has vicarious liability for its resident, the resident does not have to contribute to the settlement from her own funds. The defense insurance company vests its settlement authority in the hospital’s attorneys, and does not want to pay for a second attorney to attend or participate in the settlement negotiations, particularly since the hospital’s insurance coverage will pay the resident’s share in any disposition anyway. As a result, the resident’s “independent” counsel does  not appear or participate in the settlement negotiations.

Only after the settlement is finalized does the resident learn that the settlement payment was attributed to her. Because she has no out-of-pocket responsibility to pay any part of the settlement amount, she was not consulted. Nonetheless, because the bad outcome is attributed to her, she has to be reported to the NYS Health Department and the National Practitioner Data Base (NPDB). Those reports may impact badly on her future career, through increased malpractice insurance premiums, decreased employability, etc.

This scenario raises the questions about the “independent” counsel’s duty to protect the resident despite the complete absence of personal contribution to a settlement, and whether there was possible ethical lapse and/or legal malpractice in this situation. We believe that in these circumstances, the “independent” counsel must appear at the settlement negotiations to defend and protect the resident, even though she has no personal financial “exposure” in the negotiations. If the resident’s attorney did not do so, and the result is that the resident gets a “black mark” with the Health Department or NPDB, the resident may have a legal malpractice claim against her own attorney.

Even where the settlement is paid by the hospital’s insurance coverage, and the resident does not contribute to the settlement payment out of her own pocket, the resident is at risk from the settlement, because she may still suffer career harm and indirect economic harm (damage to her reputation and professional standing, damage to future employability and insurability) that may follow and limit her professional advancement. Particularly because a resident doctor in training is at the beginning of her career, those harms may add up to large amounts of money over the course of a professional lifetime. As a result, the resident’s attorney has a duty to protect the client from these harms, regardless of whether she contributes to the settlement with her own funds or not.

The problem of conflicted loyalty that this case presented, is unavoidable. The insurance company typically does not want the “independent” attorney to impede or block the settlement, or try to shift the responsibility back to its other insureds, in particular in this hypothetical situation, to the more senior attending doctor. The “independent” attorney may depend on the insurer’s satisfaction with his work (and possibly the hospital’s, satisfaction as well), to get future work when the opportunity arises.1 The “independent” counsel may earn gratitude not shared by the resident doctor.2 The “independent” counsel has a personal interest in pleasing the insurer at the expense of his client. Such conflicts of interest are an inherent part of lots of defense work.

This divided loyalty is an unavoidable problem, but the resolution of it is easy, according to basic legal ethics: The attorney must act with undivided loyalty to his client (in this case, the resident in training), even if that conflicts with the wishes of the insurer that retained him, or the hospital whose good will he depends on.3 The attorney must act selflessly, including sacrificing his self-interest if necessary, to protect his client.

As a result, the courts generally condemn such acts of disloyalty to the client, and allow appropriate remedies against the attorney that allowed the others’ interests to advance, to the detriment of his own client.4

In our hypothetical situation, the fact that the settlement payment does not come from the resident’s pocket, seemed compelling to the “independent” attorney. That, and the carrier’s reluctance to pay multiple attorneys to attend settlement negotiations, is probably why the “independent” attorney would not attend the settlement negotiations and fight to prevent the settlement from being attributed to his client. Fighting back, to attribute the settlement to the senior attending physician, could make serious waves, and could even cause the settlement negotiations to fail.  Invariably, “hospital politics” plays a back seat role in these circumstances. The fact that the resident can get harmed in other ways, despite not paying the settlement with her own funds, may get “lost in the sauce.”

The moral of this story is that if a client is assigned “independent” counsel by their employer or the employer’s insurance company, that attorney is charged with the legal and ethical duty to protect his client, not just from paying a settlement out of pocket, but from the other harms that come from having a settlement recording against the client; and the client may have a right to recover for those harms against her “independent” attorney, for failing to protect her against those harms.

1. The “independent” attorney looks to the insurer, not the client, for future work. “[T]he attorney’s relationship with the insurer is usually ongoing, supported by a financial interest in future assignments, and, like other long-term relationships, sometimes strengthened by real friendship.” See 4 Ronald Mallen & Jeffrey M. Smith, Legal Malpractice, §§ 30:3, at 150 (2010 ed.).

2. Barker, Miller et al, “Insurer Litigation Guidelines: Ethical Issues for Insurer-Selected and Independent Defense Counsel,” ABA Section of Litigation 2012 Insurance Coverage Litigation Committee CLE Seminar, March 1-3, 2012.

3. E.g., Restatement (Third) of the Law Governing Lawyers § 16 & cmt. e (perm. vol. 2000) (describing duty); Cinema 5, Ltd. v. Cinerama, Ltd., 528 F.2d 1384, 1386 (2d Cir. 1976) (attorney owes undivided loyalty to every client).; Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L.J. 255, 311-12 (1995).

4. See, e.g., American Bar Association’s Model Rules of Professional Conduct, Rules 1.8(f), 5.5(c) (ABA 2011).



May 31st, 2012

Can There Be Liability When Texting to A Driver – Pt. 2 (Point/Counterpoint)

This is the second of two posts on whether liability can attach to a person that knowingly sends texts to a driver, on the theory of contributing to the driver’s distraction.  Part one was by Ray Mollica.

Mark Bower now responds:

————————–By Mark Bower

Notwithstanding Mr. Mollica believing that he is right, or even knowing that he is right, I think he is wrong. However, a NJ trial-level court has agreed with him. The case was dismissed, and it seems unlikely that an appellate court will reverse that. Which demonstrates that although I am overruled, I am still right, and they are still wrong.

I note in passing the confounding misfortune that the plaintiff’s attorney goes by the nickname “Skippy.” Cute (or cutesy) names, or nicknames, that may be endearing in person, have a way of diminishing the seriousness of a case. That may have happened here.

The dismissal of this case, and Mr. Mollica’s confidence in his rightness, stem from the simple premise that the person sending a text message to someone driving a vehicle, owes no duty of reasonable care to anyone. That premise is presented as a self-evident axiom. Absent a duty, and the breach of that duty, there can no liability. Basic law school reasoning. But I don’t accept the “no duty” premise to be so self-evident.

That “there is no duty recognized anywhere for a person sending a text,” is likely factually correct (for now), but only because the sending of text messages is a new form of communication, and the law simply hasn’t caught up with the technology yet. The law evolves slowly, deliberately, and gradually, while technology progresses a lightning speed. So there is a lag time between them. The NJ case is an attempt to bridge that gap, and the judge deciding it wasn’t ready to make the leap. Eventually, some other judge will. It’s just a question of when.

The use of cell phones is now near-universal. Many homes have eliminated land lines, and depend on cellular service entirely. That process has taken around 20 years.

It has taken those 20 years for the state legislatures to catch up with the dangers of “distracted driving.”  Eight states that have banned the use of handheld cell phones while driving: California, Connecticut, Delaware, Maryland, New Jersey, New York, Oregon and Washington.  Police officers in seven states can pull over a driver if the driver is using a cell phone, even when no other driving offense has taken place.  Cell phone use for bus drivers has been outlawed in Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, New Jersey, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas and Virginia, All states except Alaska, Arizona, Florida, Hawaii, Idaho, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Wisconsin and Wyoming have banned all cell phone use by teenage drivers. (Teenagers are more likely both to be involved in fatal car crashes and to talk on cell phones while driving.)

Teens are also the most frequent texters. Teenagers and drivers in their twenties and thirties are the most likely to text while driving.Texting is an even greater distraction than talking on a phone while driving. A majority of states have banned all texting while driving. The only states that have not are Alabama, Arizona, Florida, Hawaii, Idaho, Indiana, Maine, Mississippi, Missouri, Montana, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas and West Virginia.

These evolving motor vehicle rules show that the law is gradually catching up to the technology and dangers of distracted driving. The next step is to catch up not just with the distracted driver, but with the person knowingly distracting the driver. (Actual knowledge – what the law calls “scienter” – is the key here.) The NJ case, although unsuccessful, presented a good (but not perfect) fact pattern for a test case. Cell records showed that the driver and his texting girlfriend had exchanged 62 TM’s that day before the accident. There was strong circumstantial evidence, and only a weak non-denial, that the girl knew her boyfriend would be reading and responding to her texts while he was driving.

The seeming fact that the girlfriend knew that her texts would be read and responded-to while the boyfriend was driving, is a crucial fact (and question of fact that would have to be proved at a trial) on which liability turns. Under the circumstances here – and assuming arguendo that the girlfriend actually knew the circumstances of her texting – I see no sensible reason to hold that the law imposes no duty to the public at large, not to distract the driver and thereby increase the likelihood of a distracted-driver accident.

Let’s try a slightly alternative scenario: A passenger riding shotgun is telling the driver a joke. So far, so good. The driver finds the joke funny, and laughs. OK…. The passenger wants to perpetuate the hilarity, and reaches over and starts to tickle the driver. Hmmm…. The driver laughs uncontrollably from the tickling, and an accident results. Would any reasonable person say the passenger did not share fault for this accident? Would a judge say the tickler has no responsibility as a matter of law?

Let’s make it more clear: The passenger and driver get into an argument. The argument turns physical. The enraged passenger punches the driver in the head; the driver loses control and causes an accident. No one would say the passenger has no responsibility.

The NJ judge found that the absence of the texter’s “physical presence” in the car was a defining distinction. To me, that is a distinction that makes no difference. To me, the crucial fact is that the texting girlfriend (supposedly) knew that her texts would distract the driver, but she didn’t care. She was oblivious to the dangers she caused. Why should “physical presence” or absence be the defining quality here, the line that is drawn? Although clear and easily understood, I think this is a meaningless distinction.

We want our law to be certain, so we know how to conduct ourselves in accordance with it. The problem is that there are infinite variations of circumstances and behaviors, so that absolute lines can’t apply well to the variables of every situation. The number of accidents due to drivers texting is likely to increase, and with that, so will the judicial awareness of the problem. Going back to lawschool 101, “the duty to be obeyed is defined by the danger that is perceived.”

That the judge in this one case did not perceive the danger clearly, and therefore did not recognize the duty, does not provide a long-term remedy. I predict the law will eventually catch up to the danger of texting a driver, and texters who knowingly distract drivers with their texting, will do so at their peril. We’re just not there yet… today.



February 13th, 2012

Erb’s Palsy Junk Science Debunked by NY Appellate Court (Defendants Get Their Comeuppance)

Mark Bower

When people hear about “junk science” being used in a courtroom, they assume it’s some novel theory created by a plaintiff’s lawyer to win a case. But as anyone who tries cases knows, junk can come from either side the same way any frivolous claim can.

Last week a New York appellate court dumped a recently created defense in Erb’s Palsy cases. That defense tried to allege that these birth injuries weren’t caused by malpractice, but rather, through the forces of labor itself.

Guest blogging today is New York practitioner Mark Bower, who has handled many an Erb’s Palsy case. He starts with the background on junk science, how and why it applied here and what it means for the future….take it away Mark….


Since the U.S. Supreme Court imposed a “gatekeeper” role on trial courts in the landmark Frye and Daubert cases 20 years ago,  judges have been charged with the duty of preventing the admission of “junk science” in evidence at trials. The Frye case held that a trial court must find that a scientific principle is “generally accepted” in the appropriate scientific community, before it can be expounded in court. This rule was largely dormant since originally formulated in the 1920’s, but became active after the Daubert case, that laid out five criteria that a judge must determine, to assess whether scientific testimony is admissible:

1.  Empirical testing: the theory or technique must be falsifiable, refutable, and testable.

2.  Subjected to peer review and publication.

3.  Known or potential error rate.

4.  The existence and maintenance of standards and controls concerning its operation.

5.  The degree to which the theory and technique is generally accepted by the relevant scientific community.

These tests are intended to prevent swaying juries with “junk science” – unreliable or unscientific testimony from expert witnesses, whose credentials are used to impress jurors with their authority.

The term “junk science” has taken on political overtones, as various interests commonly accuse those with contrary views of promoting “junk science” to advance their agendas, for example, whether “global warming” (climate change) is man-made, or whether autism is related to childhood vaccinations. Both sides of these controversies charge the other with using junk science to further their positions.

But back to the courtroom … When SCOTUS (not generally a friend of the plaintiffs’ personal injury bar) wrote Daubert —  and then, in 1996, the Kumho Tire case, which expanded the gatekeeper role to all expert testimony, scientific or otherwise — these were clearly anti-plaintiff decisions. And NY’s highest court further enlarged the threshold in Parker v. Mobile Oil, adding requirements of proving “general” and “specific causation”, linking the claimed cause of the harm directly to the injuries sustained. The courts were concerned that claimants would put in evidence novel, new theories to establish liability; and so created rules requiring that those new theories be approved by a judge for scientific merit before they could be advanced in court.

Until recently, these new legal requirements have been disproportionately used by defendants, to preclude plaintiffs’ proofs. A 2002 Rand study found that 90% of the courtroom uses of Frye and Daubert was anti-plaintiff.

However, that tide has been turning, as the plaintiffs’ bar is learning to use the same requirements against defendants. That sea change produced a tsunami last week, that precluded that “natural forces of labor” defense in an Erb’s Palsy case in upstate NY.

Erb’s Palsy is a neurological injury that is commonly the subject of birth trauma litigation. For over 100 years, it was generally accepted that Erb’s Palsy happens when a baby’s shoulder gets caught in the mother’s birth canal during delivery. If the delivering doctor pulls on the baby’s head in order to dislodge the stuck shoulder, the nerves running down from baby’s neck to the shoulder and arm (the “brachial plexus”) can be stretched or torn, resulting in a crippled arm. That the newborn has a non-functioning arm is usually recognized at the time of birth, or very shortly thereafter.

This mechanism causing Erb’s Palsy was so well-established, that the medical literature used to refer to it as “Obstetrical Brachial Plexus Palsy.” That is, until the medical community started to push back 20 or so years ago, and the waves of “tort reform” gathered momentum.

A small cadre of obstetricians developed a new theory, that contrary to the conventional wisdom, Erb’s Palsy is not due to the delivering physician pulling on the baby’s head or neck after all. Instead, they theorized, it is due to the “natural forces of labor” somehow stretching the baby’s neck during childbirth, so the fault is Mother Nature’s, not obstetrical malpractice.

This new theory was happily embraced by the obstetrical community, as it deflects the blame for Erb’s palsy injuries away from obstetricians and midwives. The same handful of doctors who invented the theory, published it over and over, each one repeatedly citing the others as sources. And so, around and around it went, building a significant body of literature, but with no actual original research or studies validating the theory, other than its proponents continually reinforcing one another. And the same half dozen or so doctors flew around the country, testifying to this theory in the defense of Erb’s Palsy cases, and depriving injured infants of recovery.

That hit a brick wall in a major new decision in Muhummad v. Fitzpatrick. In this case, thanks to very skillful lawyering by attorney Joseph M. Lichtenstein of Mineola, NY, an appellate court – for the first time that we know of – precluded the “natural forces of labor defense”.  The plaintiff successfully showed that this defense theory was just that – only a theory, not an accepted, verified scientific principle or fact. Although defense interests gladly embraced the theory because it is exculpatory, it has never been subject to bona fide scientific testing. (The defense maintains that it cannot be ethically tested, as that would result in injuring newborns; but whether that is true or not, the fact remains that the theory has never been scientifically validated.)

The “natural forces of labor defense” is mainly derived from hindsight analyses of birth records of injured babies, where the obstetricians did not document pulling on the babies’ heads, so the proponents concluded that the babies’ injuries had to be acts of nature, and could not be acts of man. But that conclusion depends on the premise that obstetricians will conscientiously document their own acts that could easily be considered to be malpractice. (Analogize to a driver in an intersection collision writing in his accident report, “I drove through the red light and struck the other vehicle that had the right of way.” Doesn’t happen.)

Few impartial observers are so naive as to expect inculpatory documentation to be written by the physicians who know that the babies they delivered were born injured. Furthermore, prospective testing using scientifically-accepted mannequins and methematical models by a leading biomechanical engineer in the field, actively disproved the defense theory, and supported the conventional wisdom that Erb’s Palsy is due to faulty technique by the doctor, particularly where the baby has a serious, permanent injury that is confirmed by MRI proof of nerve root trauma.

Based on these proofs, the trial court precluded the “natural forces of labor” defense, and the appellate court affirmed the preclusion.

The significance of this decision is huge. Not only is the “junk science” defense of Erb’s Palsy cases  recognized for the junk that it is (at least, in this case), but the legal tests that had been thought of strictly as a defense weapon has now been turned against the defense in a high-profile way.

With the evolving realization that “junk science” is promoted by the defense, and can be precluded by impartial trial courts, we may see the reversal of the tides put in motion by the Supreme Court many years ago. “The law of unintended consequence” coming back to bite defense interests on their butts.