September 18th, 2008

Contingent Legal Fee Reduced to 20% in Staten Island Ferry Case

The legal fees for a firm that tried one of the cases resulting from the 2003 Staten Island Ferry disaster has been dropped by 40% by Eastern District Judge Jack B. Weinstein. The accident killed 11 and injured dozens more. This represented a fee reduction from one-third, as set forth in the retainer agreement, to 20%. (New York Law Journal: Judge Cuts Attorney Fees in Award to Ferry Victim)

The case involved a victim that had been left paralyzed from the shoulders down after the accident. Plaintiff’s counsel had previously rejected a $10M offer and went to a finding before an advisory jury. The resulting $22.9M verdict was then reduced by the court to $18.3M (which both sides apparently agreed to).

Fee reductions will happen on occasion in New York when the court must oversee the settlement of someone that is incapacitated, either due to being a minor or having medical problems. But on those occasions that a reduction occurs, it generally happens only if a case settles early or easily. This one, by contrast, concerned a plaintiff that didn’t have a brain injury, and the case was litigated in full. It also occurred after a $10M settlement offer was rejected, thereby increasing the risk to the plaintiff and counsel.

Essentially, plaintiff’s counsel received no credit from the court for the risks inherent in rejecting the settlement and increasing the award from $10M to $18.3M.

 

September 16th, 2008

Wall Street Meltdown and Personal Injury Law

The personal injury bar likes to think of itself as recession proof. Regardless of whether stocks go up or down, people still get hurt because other people do dumb things.

But with the meltdown of mega insurer AIG, we could see something different. Even if they get rescued, there will no doubt be other insurers that have problems. We see this from time to time on a small scale when the executives drop their business ball, but we could now see it on a larger scale if things continue to go south. And a bankrupt insurance company would mean that the business end of lawyering could see some issues related to actually being able to get paid on a claim.

In New York, we have the State Liquidation Bureau that takes over when an insurance company goes belly-up. But even if they take over, there are long delays in getting the money in the door. In the words of the Bureau itself:

Unfortunately, the rehabilitation or liquidation of an insolvent insurance carrier usually means a delay in the settlement of outstanding claims. Where a solvent insurance company may settle claims in a matter of weeks, the complications of dealing with an insolvent company can lengthen the process considerably.

The mileage may vary in your state, but one thing is for sure, this business (and law is certainly a business, among other things) isn’t quite as recession-proof as some believe.

One last thing, with the weekend meltdown of Wall Street, lawyers are signing up in record numbers for continuing legal education classes in bankruptcy, according to CLE provider LawLine.

 

September 11th, 2008

Linkworthy

What personality traits to bloggers have? A new study tells us (Running a Hospital; Clinical Cases and Images);

McCain v. Obama on tort “reform” at the North Carolina Trial Law Blog (via TortsProf);

Brett Trout has a great piece on why some blogs get high Google rankings, discussing how search engine optimization is vastly different than blog optimization;

Blogger Hans Poppe comes home with a $5M verdict (Poppe Law Blog);

The story of med-blogger Flea and the dangers of anonymous blogging was revisited by Sam Solomon at Canadian Medicine. The post is adopted from a presentation he gave;

TortsProf with the September 5, 2008 edition of the Personal Injury Law Round-Up;

Blawg Review #176 is up at Legal Literacy;

And the 200 mile Reach the Beach Relay is being run this weekend across New Hampshire, starting at Cannon Mountain in Franconia and ending about 24 hours later at Hampton Beach State Park. So if you live along the course, keep an eye out for a familiar face.

 

September 10th, 2008

Tort "Reform" at the Volokh Conspiracy (What Are They Thinking?)

A small kerfuffle occurred over at the Volokh Conspiracy when contributor Paul Cassell fell for a hoax he was emailed about the “Stella Awards.” It was previously debunked nonsense dealing with fictional lawsuits and trying to use these phony anecdotes to argue for tort “reform.”

While the error was quickly corrected, it also raises a different point: If folks at the Volokh Conspiracy are concerned about tort “reform,” why don’t they cover it? This would be perfect material, because the libertarian-conservative minded writers most likely, if they thought about the issue, would disagree with the entire concept of government protectionism for groups of people that are negligent. Yet the ideas for this protectionism always seem to come from the political right.

This fundamental hypocrisy — conservatives that harp on ways to protect wrongdoers from their own misconduct — is something I have written on before. Any true conservative, I think, would be appalled at government efforts to grant arbitrary caps and protections to those that negligently cause injury. The theory conflicts not only with the issue of additional government intervention, but with the concept of personal responsibility for one’s conduct.

Previously at my site:

And at Overlawyered: Winnebago/Stella Award myths, pt. 4 (with yet more links)

 

September 8th, 2008

Doctors Refusing to Treat Lawyers (Is The White Coat of Silence Intensifying?) (Updated)

Are doctors ratcheting up the protectionism for those that commit medical malpractice, according to an article in USA Today. (Medical malpractice battle gets personal.) The article ledes with a story of a nurse who was fired from her job simply because her husband works at a firm that does medical malpractice litigation. [Update, the story is from 2004, not yesterday as originally posted, but the tension between the two camps of physicians described below still exists.)

Apparently, some aren’t too thrilled that there are lawyers out there trying to hold medical personnel accountable if they commit negligence. It was almost a year ago that I wrote a piece about the White Coat of Silence, regarding a Massachusetts General Hospital and Harvard Medical School study that found 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.

According to the USA Today story:

Some doctors are refusing medical treatment to lawyers, their families and their employees except in emergencies, and the doctors are urging the American Medical Association to endorse that view. Professional medical societies are trying to silence their peers by discouraging doctors from testifying as expert witnesses on behalf of plaintiffs. And a New Jersey doctor who supported malpractice legislation that his colleagues opposed was ousted from his hospital post.

This is, of course, appalling conduct. And continuing to discourage investigations and bury the mistakes will ultimately lead to a medical system that is worse off.

Thankfully, this conduct is not universal, as others have taken a vastly different tactic: They apologize for mistakes. And the result of those apologies is that lawsuits have dropped. (See: How to Put Medical Malpractice Attorneys Out of Business on 5/22/08 and More Doctors Encouraged To Say “I’m Sorry” on 4/11/07).

How effective are apologies? According to a May 18, 2008 story in the New York Times (Doctors Say ‘I’m Sorry’ Before ‘See You in Court’):

At the University of Illinois, for example, of 37 cases where the hospital acknowledged a preventable error and apologized, only one patient filed suit. At the University of Michigan Health System, existing claims and lawsuits dropped from 262 in August 2001 to 83 in August 2007, and legal costs fell by two-thirds.

One particularly clueless surgeon quoted in today’s paper, Chris Hawk of Charleston, S.C., doesn’t seem to understand that basic human concept of the apology. Instead, he attacks the lawyers, as if this will stop malpractice from occurring. According to the article:

In South Carolina, Hawk says he first urged fellow doctors to refuse non-emergency treatment to lawyers, their families and employees in a speech at the state medical association’s convention in March.

With that attitude, one has to wonder what Hawk and his ilk would tell a patient if they realized that a medical problem was caused by another doctor. Would Hawk be able to fulfill his ethical obligation to be honest with his patient under those circumstances? Is this the type of physician that a patient would want to have? He might do well if he first tried to understand why patients call lawyers to begin with.

And so the internal battle that the physicians are having continues to rage on. On one side are the protectionists who seek government intervention to afford various immunities for acts of negligence. Personal responsibility is, apparently, not their mantra.

And on the other side are the far savvier, and human, physicians that have come to realize that cover-ups create a whole host of problems. These range from inaccurate medical records and therefore improper treatment, to protecting bad doctors despite the risks to future patients, to resentment by patients who feel they have not had the level of candor that they deserve. And they have come to realize the simple human gratefulness of a distressed patient that has simply been told the truth.

(hat tip to Carolyn Elefant)