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.

December 21st, 2015

Stanley Tessel (1929 – 2015)

A 60-year-old trial bag that I use, which I inherited from the firm of Turkewitz & Tessel

Way back in the day, students sat in classrooms in alphabetical order. So if your name was Turkewitz, you’d sit next to a kid named Tessel.

And so it was at Brooklyn Law where my father sat next to Stanley Tessel, who scared the crap out of dad with his incredibly organized notes, made with different colored pens. My father, by contrast, has handwriting like mine, which my 5th grade teacher charitably called chickenscratch.

Stanley Tessel died on December 7th at the age of 86, having retired after 62 years of practicing law. He wasn’t just one of the preeminent medical malpractice attorneys in the state when it came to obstetrical cases and brain damaged babies, but was a pioneer as the field developed through the 1960s and 70s.

You see that photo of a trial bag to the right? It says “T & T” on it, which stood for Turkewitz & Tessel, the firm my Bronx-born father and his Brooklyn-born buddy formed a couple years after they graduated in 1952. That bag is about 60-years-old, and sits in the corner of my office, ready for my next trial. It’s held a lot of stories, including those from the days that the two friends did defense work for Professional Insurance Company of New York, defending doctors and hospitals in medical malpractice cases.

Tessel, according to my father, was an outstanding trial lawyer back in those days.

After Turkewitz & Tessel split up after 15 years — when Professional Insurance went belly-up — my father went on to lead the medical malpractice department at Fuchsberg & Fuchsberg while Tessel went over to Charlie Kramer’s law firm, which subsequently became Kramer, Dilloff, Tessel, Duffy & Moore.

If that name sounds familiar, it’s because the firm is one of top medical malpractice firms in the nation, now known as Kramer, Dillof, Livingston & Moore. Tessel, even long after he’d retired in 1989 and moved to Florida, would still fly up to New York to take the depositions of doctors in obstetrical cases. When the top firm in the nation has a lawyer flying in from Florida to take a deposition, you know the lawyer is good.

Chuck Silverstein, who worked with Stanley for years at Kramer Dillof, and with whom I shared office space for several years, wrote to me:

One of the things I remember most about Stanley was that he liked to talk about your father a lot. He told me the law school story (related above), always with a big smile on his face.

At one point Stanley bought himself a Rolls Royce but realized it was a dumb thing to do and got rid of it. (ET – But before getting rid of it, he came by our house to give my folks a ride. My mother quipped, “It rides as nice as our Cutless!”)

Stanley used to love going to Harry’s in the basement of the Woolworth building. He and I would sit at the bar and he would order two drinks and two shrimp cocktails and the war stories would flow.

The joke at the retirement party was that Harry’s would go out of business without him around.

At the party, a prominent obstetrician toasting Stanley said that “He knows so much about obstetrics, I’d like him present in the delivery room when my own wife gives birth.”

When I first started working at Kramer Dillof Stanley told me that I’d need a copy of Williams on Obstetrics. I think he gave me his own copy since he basically knew everything in it already.

Stanley was a very generous man. I think the term ‘magnanimous’ really sums him up — both professionally and personally.”

One day, many years back, Silverstein asked me to try one of the cases that Kramer, Dillof had worked up. This happens from time to time when there’s a manpower shortage and the judges are screaming at you to go pick a jury.

I cracked open the file and found handwriting that looked like it came from a typewriter — with analysis to match. In different colored inks. While I had never actually seen Tessel’s handwriting before, as I’d never worked with him, I recognized his work immediately based on my father’s stories. And so I went on to take a verdict in this case my father’s old partner had worked up at a different firm.

Stanley Tessel

A long obituary appeared in the New York Times this past Friday, written by his survivors. It recounted Tessel’s service in the Air Force during the Korean War, serving in Pusan as part of the Judge Advocate General.

While the obituary mentioned that he was entombed with full military honors by the Air Force Honor Guard, it failed to mention the time he almost got court-martialed. For working too hard.

It seems that the officers on the base would quit work at four and head over to the Officer’s Club for drinks. And Tessel’s office in the JAG was just across the way. And with Tessel-the-perfectionist working late, the light was always on.

(This late-night work came as no surprise to my father as he recounted the almost-court-martialed story to me, since in law school my father would quit a long day of studying at 7 due to exhaustion, while Tessel continued deep into the night even though he knew the material cold.)

So the other officers discussed this “problem” of Tessel working so hard and so late with Tessel’s superior, telling the boss it wasn’t right to make Tessel work that way. The commanding officer, in turn, told Tessel that maybe it would be a good idea to quit work at four like everyone else.

The court-martial risk came because Tessel thought this had just been a suggestion.

Not bad for a war story.

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.

May 24th, 2013

Lawyer Faints During Medical Malpractice Trial; Defendant MD Rushes to Assist

Well, you don’t see this every day — a lawyer trying a medical malpractice case passes out in court. Then the doctor that he sued rushes in to assist him. All in front of the jury.

The lawyer in question is Louisville, Kentucky’s Hans Poppe. You can see the video here, as the lawyers are at the bench discussing defendants’ motion for a mistrial.

The case arose from the negligent removal of a cervical collar that had stabilized a patient’s neck after an auto collision, with the patient then being rendered a quadriplegic. He subsequently died from infections at a long-term care facility. The defendants are the surgeon, Dr. Ryan LeGrand, and University of Louisville Hospital.

Aside from the human-interest element of a lawyer fainting and the defendant doctor rushing to assist, there’s an interesting legal issue here.

The defendants had moved for a mistrial because, on day 10 of the trial, Poppe had played a portion of videotape deposition that mentioned liability insurance. This part was supposed to be edited out. (Many potential jurors ask the insurance question during the selection process, and we are, of course, forbidden to answer. It is deemed to be unfairly prejudicial to the defendant and not relevant to the issues.)

Poppe said that it was inadvertent that the unedited video was used; the defendants claim he did it on purpose to cause a mistrial because the trial wasn’t going well for him. Then the defendants asked for a whopping $125,000 in sanctions and fees, an astounding amount for a malpractice trial and one that strains the bounds of credibility to me.

What is most interesting, however, is that the point of whether the video-malpractice was intentional or not is actually moot in many respects. And that is because a mistrial would have been necessary anyway after the doctor rushed forward, in the presence of the jury, to assist. Life can be funny sometimes and this is one of those times.

I had a couple questions about all this, so I called Poppe. First off, he said that he fainted from lack of sleep, food and water — a situation anyone that ever stood in the well of the courtroom trying a case can relate to. Walking the proverbial high wire in front of a jury can be enormously stressful, and the vast majority of lawyers can’t/won’t do it.

I asked if the defendants claimed the fainting was a ruse of some kind, and he said that no such allegation was ever made. It would seem, then, that a mistrial was going to happen regardless of the jurors learning about the insurance.

Finally, about that huge $125K request? He said that the hospital had three lawyers on the case. That is virtually unheard of where I come from in a medical malpractice case, and where I come from is lawyer-central. If there are any “extra” lawyers in cases here they are likely to be young ‘uns who are not there to participate, but to watch and learn.

Of course, if the judge thinks Poppe did this on purpose then a sanction might be forthcoming, but I have to assume that a judge would be viewing the entire conduct of the 10 day trial. An isolated act is likely to be forgiven; repeated acts might well be viewed with a different eye. But because the playing of the unedited video would ultimately be unrelated to the need for a mistrial, it seems the mammoth request for fees will be denied.

In any event, a quirky factual scenario with the fainting/assisting, what appears to be a serious legal issue regarding insurance mostly rendered moot by subsequent events, and a defense team with a legal meter apparently running so fast it’s hard to see the numbers fly by.

As I said, you just don’t see that every day.

(Updated 3/11/15: The insurance carrier proceeded to bring an action against Poppe, and this was the result)

March 20th, 2013

Sen. Rob Portman, Gay Rights, and Tort “Reform”

Last week Ohio Senator Rob Portman made headlines when he reversed his stance on gay marriage. For a Republican, that was pretty big news. He did it after finding out his son was gay and reflecting on the meaning of love, marriage and religion.

But that isn’t why I’m writing.

I’m writing because, in his explanation, he went beyond the love/marriage/religion elements to reflect on the proper role of government in society. He wrote:

British Prime Minister David Cameron has said he supports allowing gay couples to marry because he is a conservative, not in spite of it. I feel the same way. We conservatives believe in personal liberty and minimal government interference in people’s lives.

So if he, as a conservative, believes in minimal government interference in people’s lives, why does he campaign on giving big government protections and immunities with various tort “reform” proposals that close the courthouse doors to those seeking justice?

One of the first things he did as a freshman senator in 2011 was introduce legislation that would impose a new statute of limitations on medical liability lawsuits and cap punitive and noneconomic damages.

His political view is summarized here:

Medical malpractice costs and the mounting costs of defensive medicine must be reduced through sensible legal reform and better health information.
Source: www.robportman.com/1on-the-issues (11/22/2010)

Really Senator? Is that what limited government is all about? Interceding on the rights of people seeking justice by protecting big business and insurance companies?

If someone would be kind enough to forward this to Portman, he might also learn that the artificial caps he supports because of “defensive medicine” have been proven by empirical evidence to be a complete bust. Health care costs in Texas, which instituted artificial one-size-fits-all caps in 2003 didn’t go down. Costs have actually gone up.

So Portman gets a special twofer: His tort “reform” policy contradicts his stance on federal power, and the basis of his policy is factually wrong.

If Portman wants to reign in federal power, as he states in part of his argument favoring gay rights, he may wish to revisit his other positions that call for increasing that power. Especially when increasing it fails to support his theories.

More on the hypocrisy between conservatism and tort reform here: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)