July 17th, 2007

Bork’s Attorney, Randy Mastro, Picked For Giuliani’s Justice Advisory Committee

Rudy Giuliani unveiled his “Justice Advisory Committee” today, revealing that Randy Mastro, the Gibson Dunn attorney handling Robert Bork’s slip-and-fall case against the Yale Club, is on the list.

Judge Bork — the former SCOTUS nominee, conservative favorite and tort “reformer” — has been widely ridiculed and lampooned for not just bringing a routine personal injury action for “in excess of $1,000,000” for injuries that appear to be rather limited, but having also asked for punitive damages. The original complaint also included flat-out frivolous claims for attorneys fees and pre-judgment interest, neither of which can be obtained in New York.

So this raises two questions for Giuliani: First, do you want someone on your Justice Advisory Committee that has not only just brought a case with frivolous claims in it, but done so on behalf of a tort “reformer?” Will this reassure conservatives, who are already skittish over Giuliani’s social positions and have concerns about his judicial appointees if elected President?

And second, as I pointed out in Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages, do you want someone picking judges that failed to draft a simple personal injury complaint, even when extreme caution was needed for a high-profile client? And then failed to correct all the errors in the amended complaint even after a hurricane of bad press? He was not only out of his depth on this case, but more importantly, apparently didn’t seek adequate counsel on how to correct the mistakes. Will that type of throw-caution-to-the-wind conduct appeal to conservatives?

Mastro, by the way, is Giuliani’s former Deputy Mayor. He might have fine political skills, and even have terrific skills in his particular areas of expertise. He might be a great guy to have a beer with. Having never met him, I wouldn’t know. But having laid bare less than stellar legal skills in a routine case with a high-profile client, and having made frivolous claims in court on behalf of that client, is this the guy conservatives will want on a judicial selection committee?

John Edwards Reverses Course On Medical Malpractice

John Edwards appears to have completely capitulated to the tort “reformers” that seek to close the courthouse doors to those injured by medical malpractice. In a 26-page Health Care policy statement issued today, buried on page 13, is this bit (hat tip to TortsProf):

Stop Frivolous Lawsuits: To discourage frivolous suits, Edwards will require lawyers to have an expert testify that actual malpractice has occurred before bringing a suit. There will be mandatory sanctions for lawyers who file frivolous cases, and any lawyer who files three frivolous cases will be forbidden from bringing another suit for the next 10 years. (emphasis mine)

Now Edwards is a former medical malpractice trial lawyer so he should know better. A few points need addressing:

It is often impossible to prove prior to discovery that malpractice has taken place. It is one thing to require a physician’s review prior to suit, and have a doctor state that based on the available records there is a reasonable basis to proceed. That’s good practice when vetting the claim. It is another thing entirely to require that malpractice be proven before discovery, or even suit, is undertaken. This would result in the absurd situation of immunizing those doctors who have lousy records.
Testify before whom? If there is no suit, there is no one to testify in front of. Does the potential defendant have to testify too, to help reconstruct events from poorly written notes? Is there a trial before the suit starts?
If there must be testimony pre-suit, it requires significant additional funding, thereby granting even more immunity to the medical profession than they have now. Currently, the economics of malpractice litigation immunize the medical profession for most mistakes. Basically, it means a mini-suit before a real suit.
If doctor-experts are forced to testify, and therefore disclose their identities before necessary, it will make it even more difficult for injured parties to retain experts, due to peer pressure physicians face when they become known as someone willing to testify. They also will be forced to testify based on incomplete information.
The Federal Rules of Civil Procedure already have sanctions in place for frivolous conduct. It’s called Rule 11.

I have no problem with sanctions for those that bring frivolous suits. And for those that bring frivolous defenses (like blaming the patient for an injury that happened while she was under anesthesia.) Frivolous claims of any kind hurt everyone concerned and should be sanctioned.

But the concept that a case must be proven before it is even started will work only to close the courthouse doors even further.

Either Edwards has completely capitulated to the money of the health care industry at the expense of the downtrodden he claims to represent, or he needs someone to proof-read the policy statements that go out under his name.

March 6th, 2007

Medical Malpractice Politics In The Doctor’s Waiting Room Is A Bad Idea

An article appeared last week in the Kingston Daily Freeman (Doctors put lawyers on defensive) about a postcard/poster campaign by the Medical Society of New York State, accusing trial lawyers of causing excessive malpractice insurance rates and driving doctors out of practice.

About those posters and fliers? It’s a bad idea for doctors for three reasons:

First, the single biggest reason that unhappy patients call lawyers, based on my 20 years experience representing patients, is bad bedside manner. A complication or bad result of some type occurred, and the patient didn’t get answers they deemed satisfactory. They are angry. (The subject of doctor apologies cutting down on such legal inquiries was posted last night by Paul Levy at Running a Hospital) Brochures complaining about lawyers is not what unhappy patients want — they want answers.

Second, a lawsuit is not the first thing on many patients minds when something goes awry. There is no shortage of people who contact lawyers years after the acts they complain of, often after the statute of limitations has passed, and only after a discussion with a friend or neighbor put the idea in their head. Placing the idea of malpractice front and foremost while they wait to see a doctor may be very counterproductive for these patients.

Third, complaining about an expense of the medical practice (insurance, which is the subject of the political campaign) simply invites a discussion of revenues. An expense that is 3% of revenues, for example, is different than one that is 30% of revenues. Do doctors want to answer questions about their revenues?

Just a few things to think about, all of which become ever more important depending on the amount of time spent in the waiting room, and the amount of face time spent with the physician. If waits are long and face time is short, the physicians may be doing themselves a disservice with this type of politicking. Their next stop might be my office.

(article tip via Overlaywered)

(Eric Turkewitz is a personal injury attorney in New York)

January 18th, 2007

Does Congress Understand the Counterfeit Drug Problem?

Last week bipartisan legislation was introduced, ostensibly aimed at drug safety, called the Pharmaceutical Market Access and Drug Safety Act of 2007. Does it really deal with drug safety? Nope. It is almost entirely about the importation of drugs from Canada and other countries.

The bill does nothing to plug the leaky supply chain that we have here that allows drugs to be swapped among the thousands of secondary wholesalers like pork belly futures. Indeed, the requirements of pedigrees for pharmaceuticals (a list of prior owners) has still not been fully implemented despite being authorized by Congress in 1987.

There is nothing in the bill about the most basic of safety issues, such as increased criminal penalties for counterfeiters, mandating pedigrees back to the manufacturer, and funding for the F.D.A. so that they can actually do random testing of drugs in the marketplace, recall them when needed, and do proper investigations.

Before Congress tries to deal with foreign drug supply systems, it should get a grip on our own, and enact Tim Fagan’s Law, which came about as a result of domestic counterfeiting.

Spitzer Urges Constitutional Amendments for Judicial Reform

From Gov. Eliot Spitzer’s State of the State address, being delivered as I type: He urges two constitutional amendments regarding judicial reform:

First, we must reform our state’s sprawling judicial system. New York has the most complex and costly court system in the country, a system that too often fails to provide justice while imposing an undue burden on taxpayers. Chief Judge Kaye has forged consensus within the legal community for how we must fairly administer justice. Now is the time to act.

In the coming weeks, I will submit a Constitutional amendment that
incorporates Judge Kaye’s recommendations to consolidate and integrate our balkanized courts.

I will also submit a second constitutional amendment that will take
the politics out of the selection of judges and implement a merit appointment process.

Given Spitzer’s executive order that he signed on his first day in office, I can’t say I am surprised. His desire to de-politicize the judicial selection process is no doubt in part due to criticism of Gov. Pataki’s choices, covered on the front page of today’s New York Law Journal, among other factors.

Details to follow.