August 1st, 2008

Personal Injury Law Round-Up Is Up at TortsProf

TortsProf Bill Childs, as previously mentioned, has picked up the job of doing personal injury law roundups.

Today is his first edition, Personal Injury Roundup No. 1 (8/1/2008), with lots of good links to peruse, even during the dog days of summer. It’s worth a visit for lots of recent news.

I note that under his “Goofy Stuff” category, however, — and every law roundup ought to have such a category — he places my piece on Ben & Jerry’s Fear of Lawyers Kills Video Submission. I’ll take that to mean Bill won’t represent me in my claim. Harumph. I’ll keep looking….

 

July 30th, 2008

Ben & Jerry’s Fear of Lawyers Kills Video Submission

After our spirits were crushed when our little Ben & Jerry’s birthday video was banned, I decided to follow up with an email for the reason. So here is the reason they gave us:

They claim their lawyers wouldn’t approve it. I kid you not. Here is the direct quote from the email I received from their marketing department:

While we appreciated it internally (and we did), there is no way our legal team would have allowed that one to go through.

Now that would be totally nuts. Except that Totally Nuts is already in the Graveyard of dearly departed flavors, so it must be something else.

I also note that it doesn’t appear to violate any actual contest rule. (Ben-Jerrys-VideoRules.pdf) So I followed up, wanting to know, did the lawyers really look at our video?

And the answer was, apparently not. It wasn’t a lawyer that sent us into the freezer, but concerns that a lawyer might do so in the future. From email number two:

It would have had to pass by Legal in order to be considered a top ten finalist. I’ve worked here for ten years and I know it would not have passed.

Again, no rule violation. Just a concern that maybe there would be a lawyer without a sense of humor, because in a third email I was told it might have “inappropriate content.”

Now Ben Cohen and Jerry Greenfield sold out in 2000 to Unilever, a massive conglomerate. We don’t begrudge them the money they made from building the company and pursuing the Americone Dream. But it appears that what’s good for the goose doesn’t work for the gander, as our own dreams of fame and glory have been obliterated before our eyes.

If we were shot down by lawyers we could understand that. Sometimes it’s the lawyers’ job to be wet blankets. But the marketing department? What in the name of Cherry Garcia is going on here?

Marketing people are supposed to be the kind of folk who push the limits. Creative souls. Not fearful little bunnies, afraid of their own shadows. Let the lawyers be Vanilla. The marketing people should be Wavy Gravy mixed with Wild Maine Blueberry, willing to go the Full VerMonty served with Nutty Waffle Cone.

It’s now clear that this contest is little more than a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham. If you’re as upset at our family is you can whine, belly-ache and complain to [email protected].

And does anyone know a good ice cream lawyer?

 

July 29th, 2008

Video Shows NYPD Cop Assaulting Cyclist (Updated-NYPD Beats Downed Man)

You have to see it to believe it. One of New York’s Finest, while monitoring a monthly demonstration that favors bikes over cars, simply walks over to a cyclist and clobbers him. If I didn’t see it on video, I wouldn’t believe it. Worse yet, the cop then arrests the bicyclist for attempted assault, disorderly conduct and resisting arrest.

First, the video (with a hat tip to Simple Justice and Concurring Opinions):

Perhaps even more incredible than the flat out assault on the rider is that apologists have started to come out of the woodwork because, you know, for some people cops can never do wrong. Here is the New York Post’s pathetic attempt to defend the indefensible:

It looks like one thing led to another Friday, and the unidentified officer seemingly pushed a Critical Mass rider to the ground as the group snaked through Times Square.

Nobody was hurt.

And, since the rider got a traffic ticket and was cited for resisting arrest, there may be more to the story than what’s on one online video.

Seemingly pushed? That reminds me of Groucho Marx: “Who you gonna believe, me or your own eyes?”

And “Nobody was hurt” is now a justification for assault by the police? The rider, now identified as Christopher Long, could have broken his neck with that fall. Why do I think that if the spouse of the unnamed editorial writer was the victim, s/he might be singing a slightly different tune?

And “there may be more to the story?” Good grief. If there was more to the story — if Long was a trouble-maker that the cops were looking for — you wouldn’t see the other cop in the video just standing there. The two would have cornered and held Long.

The Post goes on to sum up: “It’s hard to root against the cops.” Well the masses are not rooting against the cops. That is a miserable straw man argument. This cop (Patrick Pogan, a 22 year-old rookie) should be terminated. This cop should go on trial for assault. This cop should pay the piper. For our safety.

And if the video isn’t enough to convince the Post, maybe they should look at the flat-out lies Pogan made about the incident in the supporting deposition that he gave about the Long arrest, where he claimed that Long deliberately rode into him (click the image below to enlarge):

Obviously, the video shows Long doing exactly the opposite, trying to steer away from Pogan as Pogan started walking into a path that would intercept Long.

And here’s the really interesting part: The cop did this in full view of a big NYC crowd. And yet still believed he could get away with it. And without video, there is a good chance he would. Because what jurors — unless they happen to be defense lawyers in which case they would get booted from the jury panel — would believe a cop would act that way?

With a little bit of luck, the cop will not only be arrested, but a civil suit will be brought. And perhaps, and I know this is fanciful thinking, other cops will actually start to get rid of bad apples as they tarnish the names of the good ones.

Elsewhere:

And regarding a new police beating video that has surfaced:

Updated: Scott Greenfield has a piece on how this case would have likely wound its way throught the criminal courts if there were no videotape: Follow-Up on the “Big Shove”

 

July 29th, 2008

My Tort "Reform" Op-Ed in Today’s Journal News

The Journal News today publishes my op-ed on tort “reform.” This is a regional paper owned by Gannett that serves the commuter counties north of New York City.

The article is here: Want to cure high malpractice rates? Target bad doctors

A copy is here: Turkewitz-Tort-Reform.pdf and reprinted below:
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Re “Tort reform needed in New York state,” a July 23 letter by Cortes E. DeRussy of Bronxville that blamed the “trial-bar friendly state Legislature” for refusing to enact malpractice reforms needed to keep doctors from fleeing the state:

The DeRussy letter repeated a common myth in an argument for tort “reform,” claiming that one of the primary reasons for increased medical malpractice insurance was “unusually high judgments.” DeRussy couldn’t be more wrong. Last year doctors in the state were hit with a 14 percent increase in medical malpractice rates. The instinct among those who want to change the tort laws by granting some level of immunity or protection to the wrongdoers was to blame the lawyers or juries. A little protectionism called tort “reform” in the way of artificial caps on awards would surely cure this problem. Right? Except that medical malpractice verdicts had nothing to do with the increase in rates. Rather than make simple conclusory statements, let’s look at some actual facts:

New York Superintendent of Insurance Eric R. DiNallo, who sets the amount of rate increases, said last year that the 14 percent jump comes “after years of artificially low rate increases” and that “the rate increase comes after years of setting rates below what was needed.” The rates were raised in order to avert a possible “irreversible crisis.” Did doctors previously complain that their rates were too low?

New York had previously “appropriated” $691 million of medical malpractice insurance reserves from the Medical Malpractice Insurance Association to balance the state budget. This association had been established by the state to satisfy any deficiencies attributable to the premium levels for malpractice policies, and for reinsurance. That surplus would have been used (if not taken during the Pataki administration to balance the state budget) for maintaining the solvency of New York’s medical malpractice insurance carriers.

OK, so the problem was caused by lousy state policy under the Pataki administration by setting artificially low rates, while also swiping the doctors’ rainy day fund. Surely, the problem was also caused in part by increasing medical malpractice cases and payouts, right? Well, no. In fact a study has shown that the number of medical malpractice cases in New York has remained static, and the amount of payouts has kept pace with other health-care costs. When premiums go up, but the payouts are flat, you know you have a problem. But that is not problem that was created by those who were injured by negligence, nor by their counsel.

And have high medical malpractice insurance rates in downstate counties chased away physicians, as the fear-mongers suggest? Not even close. It seems that the number of doctors in New York jumped by 16 percent from 1995-’03, an increase greater than our growth in population. And The New York Times reported just last year that while there was a 6 percent growth in the number of doctors from 2001 to 2005, for a total of about 77,000 doctors, the way they are spread throughout the state is wildly uneven.

Perhaps the problem is an onslaught of frivolous litigation? Nope, not that either. A report in the New England Journal of Medicine disproves the myth of frivolous malpractice litigation. Here’s a suggestion for tort “reformers” like DeRussy, who wish to create artificial one-size-fits-all caps for the victims of negligence: Government clearly created this insurance problem, as DiNallo admits. We, therefore, need insurance reform. Trying to fix a government-created problem on the backs of the most badly injured New Yorkers is not only cruel, and not only lousy policy, but it also won’t work. For it wasn’t the victims who created the problem. (It’s worth noting, by the way, that New York already has caps on personal injury awards, including medical malpractice.*)

Now here is a reform that the doctors may want to entertain: With up to 98,000 people per year dying from medical errors according to the Institute of Medicine, and with 4 percent of the state’s doctors contributing to half of the malpractice suits and payments (according to a Public Citizen report) maybe, just maybe, a little more policing of the medical profession might be in order to weed out the bad apples?

A good way to start real reform would be to take the rainy day fund money back from the general fund where it had disappeared. That means, however, a responsible state government engaging in sound budgetary policy instead of shell games. Better policing of the few doctors who do most of the damage is the second avenue that the state must embark upon, and not just for the sake of insurance premiums but for the sake of future patients who may come under their care.

The writer, who lives in New Rochelle, is a Manhattan attorney and the author of the New York Personal Injury Law Blog.
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*Updated: As I sat in court this morning I read through the op-ed and saw that they made edits due to length. One in particular is noteworthy, since it may lead the reader to a wrong impression with respect to New York’s caps on personal injury cases:

As it appears in the paper:
(It’s worth noting, by the way, that New York already has caps on personal injury awards, including medical malpractice.)

As it was written and submitted:
It’s worth noting, by the way, that New York already has caps on personal injury awards, including medical malpractice. But they are not one-size-fits-all. First there are members of the community that sit as a jury. Then if the award is too high (or too low) the trial judge can order a new trial if s/he believes the award shocks the conscience of the court. Then there is a third level of review at the appellate level, where a verdict that is too high (or too low) can be thrown out if it deviates materially from what would be reasonable compensation. These standards are designed to fit the particulars of the case, and have proven to be ample safeguards since at least 1812. And that is how it should be.

Correction: In one portion of my piece I note that 4% of the doctors are responsible for 50% of the lawsuits. That should read 50% of the payouts. That doesn’t affect any of the discussion of Insurance Department errors, of course, or the fact that a small number of doctors are responsbile for a huge percent of the problem, but it is put here for accuracy. (Via Overlawyered, see comment 4.)

 

July 28th, 2008

Linkworthy

Since my picture has never before graced the pages of Wired Magazine (and likely never will again), I’ll start with this link to their article on the NASA program. Gracing the top of their electronic page is my family watching Apollo 15 blast off to the moon on July 26, 1971. Two of my three brothers are on the roof of the old Vista Cruiser that we drove down from New York. I’m on the far left. (Photo credit: Dad).

Anne Reed (of Deliberations fame) finds her way to the pages of Trial Magazine for a story on what to expect (and not expect) of mock juries;

The Tennessee Supreme Court upholds a $13M punitive damage award against Chrysler;

Massachusetts adopts the “loss of chance” doctrine (via Walter Olson @ Overlawyered);

Google finds one trillion unique URLs (Macworld);

And most importantly, Scott Greenfield at Simple Justice meets the expectations of the masses with a great job hosting Blawg Review #170, honoring the 14th Amendment by looking at equal protection issues wherever he finds them. Which is to say, everywhere.