October 8th, 2009

I’m A Super Lawyer! (Now What?)

A relative told me something that I already knew: That I had been selected as a personal injury Super Lawyer. They knew because it had been published by the New York Times.

Yeah, well, kinda sorta. But not really. Super Lawyers is a supplement to the magazine; an advertising supplement. You don’t have to pay to be listed, you only pay if you want your name displayed prominently in a large box or page with a story about you that looks like news. Sort of an advertisement within the advertisement. I think the marketers call it an advertorial. I declined their offer to pony up big bucks for such an honor many months ago.

But now comes the other issue: What, exactly, do I do with this “honor”? Is this really an award to put on your wall or display on your website? Or is it a faux-award? A pseudo-faux award? A mockery of a pseudo-faux award? A mockery of a sham of….OK, you get the idea.

I have mixed feelings about this. The company that puts out the information says the lawyers are vetted before they appear. So if we are vetted, then perhaps this really is something to be proud of?

But what kind of vetting actually takes place? Super Lawyers claims on their website that:

Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

Of course, they never asked me to evaluate any of my peers. And I don’t know anyone else that was asked to do an evaluation. (Update: Now I do.) They have a full page of words on their website to describe their process, but it doesn’t seem very revealing to me. They have a “research department” that assigns “point values” to different criteria.

I must confess that this all seems pretty meaningless to me. If you want to know if I’m good at what I do, it seems you would have to read a brief I’ve written, read a deposition I’ve taken or perhaps watched a trial. Even if a lawyer comes in second at trial, an observer might still be able to gauge how comfortable s/he is inside the well of the courtroom. Everything else is, shall we say, hearsay. Inadmissible.

But that little logo sure looks nice, doesn’t it? And it would look great on a website if someone were looking for counsel. (Though not so good if a juror should see it and conclude I was thoroughly full of myself.) And I can’t just say that Super Lawyers is making stuff up, because I could be very wrong about that. I just don’t really know. And they don’t really reveal the way they do their analysis, despite all the words they use to talk around the issue.

So what will I do? I don’t really know yet, though putting it on my website (the website that I hate) and then linking that “honor” back to this post showing my complete ambivalence might be one option. At least it would educate the legal consumer a bit about those that put such things on their sites or on their office walls.

And I am also left with the impression that this is a notch above being in the Million Dollar Advocates Forum. Of course, that didn’t really set a very high bar.

Engineering Experts, How To Find Them and What To Ask

Another guest blog today, this from Patrick Carrajat, an elevator expert in New York that has testified for both plaintiffs and defendants. He writes today from the point of the engineering expert and the needs of the plaintiff’s counsel, but his points and check-lists can be modified for other purposes.
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FINDING THE RIGHT EXPERT

There are several ways to locate the technical expert you need. Referral agencies abound, both on-line and traditional and either can serve the purpose of finding a suitable expert. The inherent pitfall with both type agencies is that they often are mere repositories for resumes and have little, if any knowledge of the proficiency of the expert being recommended. A quick internet search will turn up web pages for experts in virtually any field, but again you are simply given the information the expert chooses to post. In both of the above scenarios the onus will be upon you to investigate the background of the expert further, talking to their clients and interviewing the expert to see if they are right for your case. The best way to locate a suitable expert is either the old fashioned way, call a fellow attorney in a firm known for its personal injury practice and get a name or the new fashioned way, post your need to the NYLIST (New York State Trial Lawyers Association) or other such plaintiff oriented forums and see who is most recommended. Now that you located several names by any of the above methods how do you decide if the expert is right for you and your particular case?

INTERVIEWING THE EXPERT

In our hectic times it is virtually impossible to meet with each expert candidate personally so the telephone interview is the prevailing means of selecting your expert. The initial contact with the expert should begin with your disclosing the name and nature of the case since many popular experts may have already been retained by adverse counsel. Presuming that the expert has not been retained by another party and is willing to be retained by you these are questions that you should ask prior to deciding on your choice of expert.

1. How long has the expert been in practice?
2. How often has the expert been retained?
3. How often has the expert testified?
4. What percentage of testimony has been for the plaintiff?
5. What courts has the expert been qualified in?
6. Has the expert ever be dis-qualified as an expert?
7. Does the expert write their own affidavits and 3101(d)(1) or 26B filings?
8. Does the expert have copies of prior trial testimony?
9. Does the expert maintain files on opposing experts?
10. Does the expert maintain files of EBT (deposition) testimony by them?
11. Does the expert maintain files of EBT’s by others?
12. Does the expert maintain files of current appellate decisions pertinent to their field of expertise?
13. Will the expert assist you in preparing discovery items?
14. Will the expert write deposition questions for you?
15. Will the expert write trial questions for himself?
16. Has the expert actually worked on the type of equipment involved in your litigation?
17. Has the expert served on any code committee relating to the subject equipment?
18. Has the expert served on any industry groups?
19. Has the expert participated in seminars in their industry?
20. Has the expert conducted or been a panel member on such seminars?
21. Has the expert published any articles or books on the subject?
22. What professional associations does the expert belong to?
23. Does the expert maintain a library of technical articles and Code books?
24. If the field requires licensing does the expert have a current license?
25. Does the expert have a current CV to fax or e-mail to you?
26. What are the names of the last three attorneys worked for where the case was lost?
27. Does the expert have a client list of references to fax or e-mail to you?

Presuming that the above questions have been answered to your satisfaction proceed to checking selected references paying particular attention to the three cases that were lost. Once you are satisfied that you have found a suitable expert move to retain them at once.

DEALING WITH THE EXPERT

Most experts, like attorneys place a high value on their time and you will be best served by giving all information available to your expert as soon as possible. In virtually all cases involving a malfunctioning piece of equipment an on-site inspection will be required, arrange it as soon as practical after retention. The main purpose of this on-ste inspection is to allow the expert to precisely identify the equipment involved and protect the expert on cross. Any thinking defense attorney will, on cross ask when the on-site inspection was done. If the answer is never the next question will be, “So you are giving opinions today but you were not even interested enough to look at this piece of equipment?”

Give the expert ample time to prepare deposition questions and ask the questions even if you do not understand the reason for them being asked. Have the expert interview the plaintiff in person or over the phone, let the expert hear the plaintiffs story directly, minor details that mean little to a layman can be significant to the expert.

Every expert after jury selection should have an extensive meeting with the trial attorney and it should benefit both the lawyer and expert. The lawyer will have a good picture of the jury and can assist the expert in reaching the jury in a positive sense. Request that the expert dress for the meeting as they will dress at Court, make comments if appropriate.

YOUR OBLIGATIONS TO THE EXPERT

Once you have retained your expert you have certain obligations:

1. Promptly send your signed retainer and check (if requested) to the expert. Many experts are in high demand and will be contacted by multiple parties in a major case. The mere fact that you spoke to the expert does not, in most cases, mean that they cannot accept a retainer from another party if you have not formally retained them. Fax or e-mail your intentions and advise the expert when a signed retainer will be mailed.

2. Keep your expert in the loop. No expert wants to receive records or copies of depositions a week before trial (and yes it happens). No expert wants to be asked at trial if they have reviewed a deposition only to realize the deposition was never given to them (and yes it happens). No expert appreciates a call asking if they can do an on-site tomorrow.

3. Be sure you know what the expert wants you to ask for in discovery. Any qualified expert can give you a list of items they feel they need to properly address the issues in your case.

4. Don’t “paper” the expert. No expert, aside from those testifying to physical injury wants 200 pages of medical records. Most experts do want the original aided report from the police or emergency service responders and possibly the ER reports to see if the injury is consistent with the reported malfunction.

5. Know what your retainer agreement requires of you financially and pay your expert on a timely basis, the only thing they sell is time and their expertise. You will find it difficult to have a relationship with an expert who has been unpaid or waited more than 30-60 days for payment.

6. Don’t attempt to have your expert “shade” their opinion, most will not do it and those that do are violating the ethics of the profession. Your expert will put their opinions in the most favorable light for your client consistent with the admissible evidence reviewed.

September 29th, 2009

Defensive Medicine or Medical Greed (Dr. Turkewitz Responds)

One of my brothers is a doctor. Internist. Geriatrician. You may not have expected that given the many decades both my father and I spent prosecuting medical malpractice claims, but thems the facts.

Today he guest blogs in my humble little corner of cyberspace. He wrote this letter in response to an NPR broadcast on defensive medicine. They didn’t air his views, but I will. (My prior comments on Defensive Medicine v. Medical Greed are here, so that, if you choose, you can compare some of the intra-family views on the subject.)
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By Stuart Turkewitz, M.D.

I listened with interest to your NPR interview regarding the estimated portion of health care costs attributable to malpractice expenses, and especially to the practice of defensive medicine. Both you and the host, Robert Segal, made repeated reference to unnecessary “tests and prescriptions” before arriving at a conclusion that a “very small portion” of the total health care bill results from practicing defensively.

Unfortunately, your reference to “tests and prescriptions” omits a major component of unnecessary health care expenditures: hospital admissions of older adults, and particularly adults with chronic medical problems.

I am an internist and geriatrician, and my patients occasionally go to or are sent to the emergency room, usually because a test is needed to urgently rule out a condition: a CT scan to rule out subdural hematoma, a lower extremity Doppler to rule out deep venous thrombosis, cardiac enzymes and EKG to rule out a heart attack.

Once a dangerous condition is ruled out, there is every reason not to admit an older patient to the hospital: people do best in familiar surroundings with familiar caregivers and food. The hospital subjects them to multiple new faces, irregular sleep cycles and sleep deprivation, risk of infection, and relative immobility, often precipitating a substantial decline in function.

Once in the emergency room, however, patients are confronted with physicians and other staff with every incentive to admit the patient, and little incentive to send him or her home. The infection, confusion, and insomnia that often accompany admission are at least a day or two in the future , and are not a consideration of the ER physician. On the other hand, the ER physician feels that he or she will be held to account for any misfortune that befalls the patient sent home from the ER. In addition, chronic medical problems can often look acute to physicians and staff unfamiliar with a particular patient’s “baseline.” The urge to recommend admission is overwhelming. The attending physician (that would be me), often at the other end of the phone, however skeptical of a true change in condition, is ill-prepared to argue against the physician who actually saw the patient moments earlier.

There is no question that the fear of malpractice suits influences physicians, particularly ER physicians, to admit patients unnecessarily, and I believe that the magnitude of this dwarfs the “tests and prescriptions” that you mention. This not only drives up the national health care bill enormously, but is detrimental to the health of most patients.

I believe that if the true “costs” of a hospital admission, including temporary and permanent decline in function, were truly and fairly accounted for, then it would be more evident how much the fear of lawsuits was truly costing us all.

Links to this post:

Defensive Medicine – Rob Sachs
Mr. Sachs makes a good point about defensive medicine in a recent post on his lawyer blog. Personally, I don’t think he understands what defensive medicine is, based on some of his back-handed comments. Here’s a little piece of that …

posted by Shawn Vuong @ October 16, 2009 7:03 PM

Unnecessary hospital admissions cost money and can harm patients
Unnecessary hospital admissions cost money and can harm patients. When the elderly go to the emergency room, more often than not, they are admitted to the hospital. Stuart Turkewitz, a geriatrician posting at his platintiff attorney …

posted by Kevin @ October 16, 2009 7:00 AM

Defensive medicine and hospital admissions
Unnecessary testing and prescribing is often the first example that comes to mind in discussions of defensive medicine, but Stuart Turkewitz, MD, explains why needless hospital admissions, especially of older adults and those with …

posted by Walter Olson @ October 01, 2009 7:51 AM

September 25th, 2009

North Shore Hospital Sued After Brain Surgery Patient Left on Table

Back in May I wrote about two top neurosurgeons that were suspended for leaving a brain surgery patient on the operating room table at North Shore University Hospital. That woman has now sued them.

The patient, Jennifer Ronca of Pennsylvania, had undergone the first of a two-part brain surgery. But the surgeon for the second part, Paolo Bolognese, failed to appear and operate. He remains on staff at the hospital.

A second neurosurgeon, Dr. Thomas Milhorat, refused to step in when called. He has now retired.

The first thought on reading the story is: So what were the damages? And defense counsel Tony Sola of Martin, Clearwater & Bell, one of the talented “regulars” of the malpractice defense bar here in New York, echoed that very thought when asked for a quote, saying that Ms. Ronca was “not injured” as her surgery was completed several weeks later.

But Ms. Ronca was, of course, injured. At the barest minimum she had an additional surgery and had her recovery delayed by those several weeks, in addition to any deficits that might have occurred due to the delay. There seems to be little doubt that trying to demonstrate (and defend against) such deficits will be the crux of the damages portion of the case.

On Ms. Ronca’s side is Mark Bodner, one of the regular plaintiff’s malpractice attorneys. Both sides are well represented here.

And it’s well worth noting that the damages sought are “unspecified” in accordance with New York law, notwithstanding that some lawyers break that rule. And even when pressed by the reporter for a number, because reporters love putting those numbers in headlines, he declined.

There is a demand for punitive damages also, and as both Bodner and Sola realize, such a claim has a very high hurdle indeed. I’m not sure if any punitive damage award has ever been upheld against a doctor in New York. While the conduct here might look particularly egregious, if there was a scheduling or communications snafu that caused it, such damages are unlikely to be awarded.

(hat tip to Scott Greenfield for picking this up out of Newsday)

September 23rd, 2009

Judge and Blogger, Jerry Buchmeyer, is Dead at 76

In my blog roll off to the right under “Legally Humorous” sits a link to Say What?, a little Texas law blog from US District Court Judge Jerry Buchmeyer, who died Monday at 76.

But I didn’t add him to my blog roll and RSS feed to read about Texas law. I tuned in because he had a great collection of trial and deposition snippets that, when you read them, were sure to lift your day. And to warn you about engaging the mouth before engaging the brain.

Oddly enough, though he died Monday, he has a post dated today (reprised from 2001). So somewhere up in the Great Beyond, Judge Buchmeyer must be laughing a little. And as long as Judge Buchmeyer continues to post, I’ll continue to keep him in my blog roll.

One sample from the blog looks like this:

Q. Do you know how much money?

A. No, not specifically.

Q. You recall testifying as to a seven or $800,000 figure concerning Roseneath yesterday?

A. Whatever the record said.

Q. You recall discussing a seven or $800,000 contribution to GRI by Roseneath?

A. And I said whatever the record said.

Q. You don’t recall that right now?

A. I said whatever the record said.

Q. That’s not responsive. Do you recall?

A. Read my lips.

Q. Read mine. Do you recall?

A. Look at me again, read them real careful.

Q. And read my lips carefully –

Mr. Butler (wisely): All right. Gentlemen, I guess that’s about enough of this.

It’s easy to watch an hour disappear just roaming through his archives reading some of the transcripts that people had sent him over the years.

You can read some of the obituaries, that focus on his judge-life as opposed to his blog-life, here:

WSJ Law Blog;
ABA Journal;
Box Turtle Bulletin;
Tex Parte Blog;
Pegasus News;
Legal Blog Watch