October 17th, 2007
I mentioned the other day that Nicole Black at Sui Generis was accepting nominations for contests for best New York Blawg and Best New York Blawger.
The nominations are closed and the ballots are now posted. So if you care to vote, or simply wonder who else is blogging either from New York or about New York) then head on over. The ballots are only open for one week. Though I would never suggest you vote for me. Not my style.
Rumors of ballot-stuffing have, of course, already surfaced.
October 15th, 2007
This is how bureaucracy can kill a person.
At a high school in Queens, New York a memo went out to staff that in the event of an emergency, 911 should not be called. Because calling 911 in an emergency was apparently too easy. It wouldn’t allow the Powers That Be to be in the middle of the emergency. So instead, according to this Daily News story, the staffer should do these four things:
Of course, if it’s an emergency, by this point there’s a good chance it’s too late. I can’t even begin to fathom what kind of bureaucrat would create such a dumb memo, but clearly they need to be canned for the safety of, well, everyone else. Even more incredibly, this policy was implemented October 1st at a Jamaica high school that had seen a 14 year old have a stroke earlier this year in April, and wait an hour before treatment.
This policy was reminiscent of an incident a few years ago while I was in Atlantic City. A patron collapsed on the casino floor. One of my brothers, who is a physician, knelt down to help. After a quick evaluation he looked up to the security guard standing nearby and told him to call an ambulance. So what did the guard do? He said, “Let me call my supervisor.”
At that point my brother, with Warner Brothers cartoon character logo firmly emblazoned on his ball cap,looked at the guard and barked, “No. You will call 911 NOW. You can tell your supervisor later.” It didn’t take the guard long to understand the folly of the administrative procedures from the guy with the funny hat.
Sometimes negligence is a single event, like a red light that is run while a driver is in a hurry. And sometimes the negligence is institutionalized.
October 14th, 2007
It’s not every day I land on the front page of the local sports section, above the fold no less. But I think the story fits in with personal injury law given the countless ways people get hurt, so I want to discuss it. (Runners’ safety a high priority as days grow shorter.)
It’s about safety, personal responsibility and assumption of risk. It is, in essence, about risk management. In this case, the risks are tripping over the unseen or being hit by a car when running in the dark. And the management part revolves around lights and reflective clothes. And fashion be damned.
The theme of personal responsibility is one I often use at trial. Defense lawyers like it too. So in picking the cases to take, it’s a crucial parts of the analysis, regardless of whether it is a simple trip and fall on a broken sidewalk or a complex medical malpractice case. A jury wants to know what each of the parties did to prevent the incident that led to the injuries.
Oftentimes there is no clear cut answer, but a long sliding scale of grays. For example, a fall over a busted up portion of sidewalk may mean one thing to a juror if it occurred to a healthy 25 year old in clear weather in broad daylight (the failure to see that which is open and obvious) and something completely different if it’s a senior citizen walking the same sidewalk at dusk in the rain. In either case a juror will want to know what the injured person did to keep themselves safe as they measure the liability of the owner of the land.
And yet, cases land in the courts all the time where it seems as if the plaintiff’s attorney simply ignored substantial culpable conduct from his client. I can’t imagine it is the more experienced attorneys that are accepting such cases. It’s important to tread warily on matters where there may be a large degree of comparative fault.
There is also another lesson in this. The gut reaction of most defense attorneys, I think, would be to kick me off a jury panel in a civil case once they learned what I do for a living. But after reading the above, do you think they would be making a mistake in doing so?
Returning to the article, here is the money quote from yours truly for those too lazy to read the story:
“The headlamp is a great device to see and be seen – no matter how dorky it looks.”
(Eric Turkewitz is a personal injury attorney in New York)
October 14th, 2007
Nicole Black at Sui Generis is looking to crown both a best New York Blawg as well as a best New York Blawger. Nominations are open at this site. These things are always useful for discovering new blogs that others like. I’ve been nominated so far in the blawger category along with others, but I won’t tell you to vote for me. I’d never do that. Hint at it perhaps, but beg and grovel for votes? I wouldn’t stoop so low.
And a Best Blawg category exists at the 2007 Weblog Awards. I’ve also been nominated here (along with a bunch of A-listers, one of whom will obviously win). But there is a place to show your support by hitting the + button next to a nomination. I mean, if you want to. I wouldn’t ask or beg or anything.
Anyway, since I’m still in my rookie year, suffice it to say I am flattered.
October 12th, 2007
The New York Personal Injury Law blog brings you the week that was:
Before getting to the lawsuits, let’s look at related issues:
From the Department of Medical Mishaps: The Medical Quack lets us know that a man’s dentures were lost during surgery, and found a few days later in his throat;
Last week I wrote about Texas tort “reform” and the New York Times article on the increasing number of doctors in Texas. The Times, I asserted, blew the statistics it used regarding increasing disciplinary actions, asserting a mere 8% rise instead of 79%. This was noted by Prof. Bill Childs at TortsProf, who has now started a study of the disciplined physicians to see how many are new arrivals. Prof. Tony Sebok at FindLaw also picked up the story with Does Texas Really Have More Doctors as a Result of Medical Malpractice Reform? Why a New York Times Article Making that Claim Is Seriously Misleading.
This is not the first we’ve heard about Texas and doctors (nor likely the last), as Prof. Charles Silver wrote in November 2006 at TortDeform: What’s Up Doc? Not The Number of Physicians Practicing in Texas, with more discussion in the comments with Ted Frank. As the new doctors get credentialed and set up their practices, we will see, perhaps, if doctors facing troubles in one state pack their bags and flea to Texas, as I think they will due to the various immunities and protections afforded to them for negligence;
A battle over three jailed lawyers in Kentucky related to misappropriating tens of millions in legal fees heated up even more with the discovery that an assistant to one of the lawyers was an FBI mole that tape recorded conversations (ABAJournal). Was the wiretapping ethical will be the next issue, according to the Kentucky Law Review;
Personal injury attorney John Arthur Eaves, Jr is running for Governor of Mississippi, but as MassTorts prof Howard Erichson explains, it isn’t on the usual Democratic platform;
As many as 40 doctors, nurses and other hospital employees are under investigation or suspension for leaking information regarding the medical care of actor George Clooney after a motorcycle accident (via Kevin, M.D.). Bob Coffield at Health Care Law Blog tackles the HIPAA violation, as does Orac at Respectful Insolence and girlvet at Tales of an Emergency Room Nurse;
Dr. Wes has information on “fake” medical board certifications, something to keep in mind when checking the credentials of any medical witness that claims to be “board certified;”
And now on some actual lawsuits:
John Bisnar at the California Injury Blog has sued the California Supreme Court regarding its issuance of an unpublished opinion that strikes down a jury award. The suit is premised on a violation of due process and equal protection rights. Days later, Daniel Solove posts, Should Courts Issue Unpublished Opinions? at Concurring Opinions, wondering where the compelling argument is for such things;
Kentucky has sued Purdue, according to Bill Childs, for misrepresentation of the addictiveness of Oxycontin, for the expenses related to treatment;
Sean “Diddy” Combs, rapper, promoter and marathon runner, has been sued in New York with an allegation that his guards beat the stuffings out of a fellow promoter at at a Bronx nightclub (via Sui Generis). The suit claims $5 in damages, though making this type of claim violates New York’s prohibition against specific damage claims as per New York’s Civil Practice Law and Rules, section 3017(c):
In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled. (See also New York Cleans Up Claims Act);
A cop has sued the parents of a brain damaged child (via Jeralyn Merritt at TalkLeft). The child had been pulled from the family pool and the officer was there for resuscitation and slipped on the water. So where is the negligence? Was the family supposed to mop up the water while trying to save the life of their child?
Blackwater has been sued for its activities in Iraq by the Center for Constitutional Rights, also from TalkLeft, for allegedly opening fire on unarmed Iraqis;
A trial against Allstate (PI Round-Up #31) based on improper claims procedures has resulted, according to Kentucky Law Review, in a defense verdict; And blawger Hans Poppe pops up in another interview;
A $143M verdict came in against Wyeth related to increases in breast cancer for those that took hormone replacement therapy Prepro/Premarin (Howard Erichson, Mass Torts); [Update from MassTorts: Jury reduces damages by $100M, as they had included punitive damages in the compensatory award. Punitive damage hearing to follow.]
The Legal Reader notes a Rocky Mountain News story of a Colorado judge that tossed out a $1.2M verdict because, he said, the plaintiff’s attorney engaged in “disrespectful cockalorum, grandstanding, bombast, bullying and hyperbole.” (Other than that, your honor, how was the show?)
Notorious child killer Joel Steinberg succeeds in getting part of the $15M judgment against him thrown out by New York’s high court. (Decision, Launders v. Steinberg). I covered the matter previously in: NY Child Killer Wants $15M Award Tossed — Decision May Have Wider Repercussions. More commentary by Nicole Black at Sui Generis;
And Evan Shaeffer has a list of upcoming Vioxx trials, for those who are keeping score.
And finally:
(Eric Turkewitz is a personal injury attorney in New York)