October 24th, 2008

Medical Blogger Sued for Malpractice (Will He Blog It?)

Medical blogger Shadowfax over at Movin‘ Meat has been sued for malpractice. He announced it on his blog.

The information came to him like this:

Nothing good ever comes via certified mail, and it was with a sense of dread that I took the envelope, noting the return address from a law firm. I opened it and was hit in the gut by the block type at the top reading “NOTICE OF INTENT TO SUE,” with my name underneath.

While Shadowfax remains a pseudonym, he is ever mindful of the story of Flea, who had blogged his own malpractice trial under a pseudonym. When plaintiff’s counsel found out, and confronted him on the witness stand, it made front page news.

You might guess that the doc is not happy. He writes:

So I’m not scared. I am pissed. Not at the plaintiff. Just in general, that I am going to have to do the whole deposition-discovery-negotiations-trial thing. I didn’t want to go through this, and it’s going to be painful and annoying. I’m buoyed by the belief that my care was not deficient, and that the case is defensible. In fact, I look forward to making my case that the care was superior

Will Shadowfax blog details of the suit? Read on at his blog to find out…but do it quick since he has threatened to delete it.

 

October 24th, 2008

The Deadlocked Jury (Ted Stevens Trial) – Updated


The news from inside the Sen. Ted Stevens jury room was not pretty: “Violent outbursts” from a juror. Essentially, if this juror has others in her corner on the merits, it almost guarantees a deadlocked jury. And a hung jury is good for a criminal defendant.

Here’s the note from the jury room:

“We, the jury, requests that juror number nine be removed from the jury. She is being rude, disrespectful and unreasonable. She has had violent outbursts with other jurors, and jurors are getting off course. She is not following the laws and rules as stipulated in the instructions.”

I’ve had juries out for days on end. But in civil cases in New York, we only need 5/6 for a verdict. I have my own theory on why juries fight and deadlock — and how I tried to avoid it when I sat in the jury box some years ago and how I try to avoid it when I stand in the well– and it can best be summed up in one word: Ego.

Nobody likes to admit they are wrong. Thus, when jurors stake out a strong position at the start of deliberations, a problem is created if there is a conflict. Someone will have to change their mind. Someone will have to appear “weak.” That’s bad. If you want someone to change their mind, you have to make it easy for them. The carrot works better than the stick.

How do you avoid the problem? When I sat jury duty on a criminal case, I grabbed the bull by the horns when we went in to deliberate. I suggested that we go around the table and, without saying if we thought the defendant was guilty or not, simply discuss a piece of evidence that was interesting. That was it. Thus, without having staked out any ground as to ultimate guilt or not, it would be far easier for people to be receptive to alternative arguments and evidence.

With that experience in my back pocket, I often take a minute during my own summations to discuss the importance of listening to others and being receptive to others. I will, on occasion, tell them bluntly why, discussing the problem of ego and changing one’s mind. (Defense lawyers, by contrast, might be telling jurors they should stick to their guns, hoping for hung juries.)

Whether such cautions were given at the start of the Ted Stevens deliberations, I don’t know. Presiding judge Emmet Sullivan has gave the jurors a pep talk, telling them they should “encourage civility and mutual respect” in their consideration of all the evidence. But it may be too late, as the threats of fisticuffs can easily kick in the ego factor that prevents people from changing their minds, and causes either a hung jury or one that is severely compromised.

Verdicts, sometimes, are more about ego and less about evidence than the litigants might have hoped.

Update:

 

October 22nd, 2008

Kafka and Me (Why Bloggers Need Not Be Perfect)

I just read Franz Kafka’s The Trial for the first time and learned something pretty startling: There were elements that resembled a blog.

I picked up the book on the way to vacation. (What does a Jewish lawyer from New York pick to read on a visit to Prague? A book by a Jewish lawyer from Prague.)

The startling part to me was not its well-known theme — a man arrested and asked to defend himself in an unknown court with unknown charges — but the fact that such a famous work was also very much unfinished. Much of Kafka’s work, including this one, was published by a friend after Kafka’s early death.

The start of The Trial is ominous enough:

“Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested.”

And from there K. descends into the hell of the all-powerful, all-knowing and unseen bureaucracy.

The recent translation I read — and the reason this comes up in the context of blogging — had explained in the forward that this version was published to be as true to the notes Kafka left as possible. That means errors in names (same name spelled differently), the timing of events, and descriptions of scenes remain as written. Unfinished chapter fragments are tacked on after the end. The actual order of chapters, in fact, is not entirely known. There were paragraphs that went on for a dozen pages, as if the notes had been written down for later editing.

Now blogs can be like that. Unfinished. Rough around the edges. Often with mistakes, which we hope are merely formalistic and not substantive. Because if the substance works, then (like Kafka) errors in the formalities of writing will (we hope) be overlooked.

And that, from this day forward, will be my excuse for written errors.

 

October 16th, 2008

Linkworthy

Brooklyn federal Judge Jack Weinstein stops decades of New York personal injury practice dead in its tracks when he tosses out the actuarial life expectancy tables we use because the distinction between black and white life spans is discriminatory and unconstitutional (New York Law Journal via Law.com):

“Reliance on ‘race’-based statistics in estimating life expectancy of individuals for purposes of calculating damages is not scientifically acceptable in our current heterogeneous population,” Weinstein wrote in McMillan v. City of New York, 03 civ. 6049. (Update – The decision is here: /RaceAndFutureDamages.pdf)

Did you spend money to be placed in some lawyer directory? Susan Cartier Liebel says lawyer directories could be worthless;

Ron Miller on the ugly practice of lawyers trying to get access to accident police reports in an effort to obtain clients (also at Overlawyered);

A UK rugby player sues due to a career-ending eye injury (BBC);

Mediator Diane Levin hosts Blawg Review #181 on Conflict Resolution Day;

Joe Paduda has the pre-election health care debate in his Health Wonk Review;

And a patriotic dad decides to name his kid Sarah McCain Palin. Though he and his wife had agreed to Ava Grace. Quizlaw with the details.

 

October 15th, 2008

Preemption Gone Wild (How Bush Pushed Immunity for Big Business)

If you thought a lame duck presidency couldn’t do too much damage to the civil justice system you would be wrong.

The American Association for Justice today released a report showing a coordinated effort by the Bush administration to make corporations immune from lawsuits through the concept of preemption. With preemption, a federal law that grants immunity will supercede a state law that allows lawsuits. But since President Bush couldn’t get Congress to agree to anti-consumer laws that grant immunity to corporations, the report demonstrates a pattern of obtaining that immunity by executive fiat. This was done by placing the corporate immunity clauses in the preambles of agency rules. The Supreme Court wil shortly hear these arguments in the context of a drug case and FDA preamble that attempts to grant immunity, when Wyeth v. Levine is argued.

The AAJ found that, since 2005, seven federal agencies have issued over 60 proposed or final rules with preemption language in the preamble. Preemption is essentially a covert form of tort “reform” that is unseen by the vast majority of the public.

While I don’t generally publish press releases, as I don’t want to be seen as anyone’s mouthpiece, a report detailing a pattern of corporate immunity and protection grants, even when those companies might be clearly negligent, is important enough to make publication in full. (Full disclosure, I am a longtime member of AAJ.)

In reading the release and report, bear in mind that the Bush administration, and conservatives in general, like to talk about keeping government small and keeping power at the state level. This end-around of Congress by using agencies to pass regulations that our legislators refuse to endorse, by contrast, is a naked power grab by the President, demonstrating a stark departure from conservative philosophy.

Note also the issue of personal responsibility. It’s part of that whole take-care-of yourself and pull-yourself-up-by-your bootstraps theme that conservatives like to speak about.

Except when it comes to big business. When they do something wrong, the Bush administration screams that they should be immune. Let the victims be victimized twice is the general idea, so long as corporate profits aren’t hurt. The hypocrisy is once again self-evident.

The report is generated from documents obtained under the Freedom of Information Act. You may note that government officials first denied the documents even existed.
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Federal Agencies Changed Rules to Usurp States’ Rights, Help Corporations Escape Accountability for Dangerous Products

Washington — In a stealth effort coordinated at the highest levels of the Bush administration, multiple federal agencies were repeatedly ordered to usurp state law and undermine consumer protections, according to documents obtained through repeated FOIA requests by the American Association for Justice (AAJ). The documents released today detail how helping corporations escape accountability for dangerous products has been the administration’s top priority.

“This is the real Bush legacy,” said AAJ President Les Weisbrod. “In effect the Bush administration made the safety of Americans secondary to corporate profits.”

The FOIA documents detail a Bush regulatory strategy called preemption. In short, the Bush administration has decided that federal rules should usurp — or preempt — the rights of states to protect their citizens with stricter safety standards. In turn, consumers can no longer use the state protections when harmed by negligence or misconduct, giving total immunity to corporations instead.

AAJ has tracked how the administration’s first attempts to preempt states rights utilized friend-of-the-court briefs on behalf of corporations in civil justice cases. After only mixed success, the administration then shifted strategies, targeting instead regulatory agencies in charge of product safety oversight. Beginning in 2005, carbon copy statements claiming that federal agency rules preempt state law began surfacing in the “preambles” of regulation issued by the federal government, and in some cases in the body of the final rules themselves. Because the courts have not yet conclusively determined whether preambles carry the full weight of law, corporations have a new legal theory on which they can argue in product liability cases.

“Unelected federal regulators are now claiming that states can’t protect their own citizens with stronger consumer protections,” Weisbrod added. In an upcoming Supreme Court case, 47 state attorneys general filed a brief arguing the FDA is breaking with historical precedent. In fact, in their brief they urge the U.S. Supreme Court to uphold a Vermont Supreme Court ruling that state law forces a drug manufacturer to pay $6.8 million to a Diana Levine, whose arm had to be amputated after she was injected with an improperly-labeled Wyeth drug.

Since 2005, seven federal agencies have issued over 60 proposed or final rules with preemption language in the preamble. During the past year, AAJ submitted numerous FOIA requests that prove the Office of Management and Budget (OMB) had direct involvement in the placement of the “complete immunity” preemption language. In an earlier request, OMB responded that there were no documents. However, emails recently obtained from the individual agencies prove that OMB did indeed discuss preemption with agencies, and in some instances OMB officials wrote the language.

Given this discrepancy, AAJ submitted an expanded request for OMB documents. On September 26, 2008, OMB responded it had identified 146 documents, but refused to release any of them, saying that “the disclosure of these documents would not be in the public interest.”

In piecing together the emails from the FOIAs, AAJ uncovered the cozy relationship between federal officials and the industries they regulate. For example, the pharmaceutical industry intensified its efforts to influence the FDA in the months leading up to the physician labeling rule’s release on January 24, 2006. Much of the lobbying efforts were aimed at Sheldon Bradshaw, who had succeeded Daniel Troy as FDA chief counsel in April 2005.

AAJ obtained emails that list attendees of a meeting between Bradshaw and the Pharmaceutical Research and Manufacturers of America (PhRMA) revealing the FDA chief counsel met with legal representatives from Pfizer, Wyeth, Eli Lilly, Berlex, Organon, Abbott Laboratories, Takeda, Sanofi-Aventis, Serono, AstraZeneca, Cephalon, Millenium, Eisai, Amgen, Astellas, GlaxoSmithKline, Bristol Myers Squibb, Johnson & Johnson, Novartis, Merck, and 3M.

Less than six months after this meeting, the agency would release its final physician labeling rule with complete immunity preemption language in the preamble, a complete about-face from the language in the proposed rule that specifically said the agency did not intend to preempt state law with the rule.

“Big business lobbyists have been on a crusade to destroy state consumer protection laws, and further stack the deck against American consumers,” said Weisbrod.

The full report (which I have not yet had time to read) is here (pdf):
“Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability”.
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See also: