October 5th, 2007

Personal Injury Law Round-Up #31

The New York Personal Injury Law blog brings you the week that was:

Let’s start with what’s really important. Me. I’m pleased to announce that this blog (and this round-up) has been added to an electronic law library at Western New England College, School of Law via their monthly Cybercites. Thanks to TortsProf Bill Childs (who was also added) for the heads up.

And now off to the races, with a top-heavy helping of tort “reform” pieces from various states:

Ben Glass gives an example of the harshness of Virginia’s tort “reform” law that caps both economic and non-economic damages, which sacrifices the most badly injured on the alter of insurance company profits; and Wisconsin’s harsh “reform” statute that forces the taxpayers to pick up the tab for repeatedly negligent doctors;

Out of California, J. Craig Williams at May It Please The Court looks at the same tort “reform” issue in California, and the immunity for negligence so many medical practitioners now enjoy;

In Texas, Dr. Forney Fleming, a leading tort “reform” advocate that seeks immunities and protections for defendants and has done the talking head bit on TV for the cause, turns out to have been reprimanded by the Texas Medical Board on one case and accused by the Board of providing substandard care to at least six others. You can get lots of the gory details at TortDeform, The Burnt Orange Report, and Perlmutter & Schuelke, including that he has also been sued at least 14 times and admitted to practicing medicine while drugged up. But hey, you know that it is all really the fault of those darned plaintiffs’ attorneys, right? Stay low so the black helicopters don’t get you;

Texas tort “reform” also landed on the front page of today’s New York Times, with a focus on the huge increase in doctors flooding into the state. But did the Times blow the story on the escalation of disciplinary actions also occurring? I hit that subject earlier today with links to many other bloggers on the subject;

And at Overlawyered, tort “reformer” Walter Olson addresses Fred Thompson’s opposition to congressional limits on liability on federalist grounds. Those on my side of the bar may be surprised at Olson’s opinion;

Meanwhile, Anderson Cooper this week presented Insurance companies fight law on punitive payouts on CNN, as the industry fights back against a law that punishes them for bad faith. No Fault Paradise ruminates on just how such a law would work;

Moving on to the problems of those injured in accidents, a new report referenced by Stark & Stark, finds that those who have suffered a brain or spinal injury are 33% more likely to file for bankruptcy;

From the Department of Dangerous Crocs: Are the popular shoes dangerous on escalators? A rash of accidents and injuries, reports the Southern California Injury Blog, have been appearing around the nation and could give rise to product liability suits;

We’ll need good shoes to climb the ivory tower to visit TortsProf Sheila Scheuerman, who has a useful list of the 10 top downloads in tort and liability law from the Social Science Research Network;

And from the Department of Blown Apologies: Thomas and Friends customers were sent an apology for lead paint in their toys. And a gift!!! Which was painted with…ahem…lead paint. Story at The Consumerist.

And off into litigation we go…

Arkansas prepares a $600M lawsuit against pharmaceutical makers for marketing off-label uses of their goods (Lawsuits and Judgments);

Greedy Trial Lawyer has info Allstate being the “Good Hands People,” at least for those that accept their low ball offers, and the trial starting this week against Allstate for fraud. The Poppe Law Firm Blog also has coverage. I previously asked about “Allsnake“ here.

Tony Seebok at FindLaw continues with the second of his two-part series on Vioxx and whether class action certification is appropriate (part one is in Round-Up #29 with other Vioxx posts): When Is A Class Action Superior to Multiple Individual Lawsuits?;

When 21 million pounds of ecoli tainted hamburger beef gets recalled, it is time to check in with food poisoning guru Bill Marler for the scoop, and yes, the lawsuits against Topps have already started. And late-breaking news, the company is going out of business, proving once again the ruthless efficiency of capitalism: If you screw up, your company goes down;

A furious federal judge has levied up to $5M in sanctions against defense counsel and their clients in a medical insurance class action (via ABAJournal);

In Kentucky, a case against McDonalds regarding a strip search has gone to the jury, with Kentucky Law Review providing many links. Hans Poppe was interviewed by local television for the story, and gives his opinion. (Addendum: Late-breaking, according to an email from Hans, there is a $6.1M verdict against McDonalds with $1.1M in compensatory damages and $5M in punitive damages);

In Miami, a retained surgical sponge has resulted in a $2.4M medical malpractice verdict;

Isiah Thomas, James Dolan, and the owners of the New York Knicks, have been hit with an $11.6 million punitive damage award for sexual harassment in a New York courtroom. Ted Frank at Overlawyered complains the award is too high, but of course the award must still pass judicial review at the trial court level and an appeal. The case is far from over;

Isiah Thomas and Clarence Thomas. Both about race and both about sexual harassment and both at the same time. What were the odds? Bridget Crawford at Feminist Law Professors ties together the two Thomases and sexual harassment, as does Megan Izen at RaceWire, Lisa Takeuchi Cullen at Time-blog, Kia Franklin at TortDeform and Michael Dorf at Dorf on Law (my own thoughts on the judge are here: Is Clarence Thomas Playing the Race Card Again?)

But litigation sometimes keeps going, even after verdict or settlement. Alexandra Lahav at MassTorts covers the story of New York’s continuation of prisoner strip searches in violation of a prior settlement, that may affect tens of thousands of people.

And finally:

Blawg Review #128 comes to us out of Lex Ferenda from Trinity College in Dublin;
Grand Rounds 4.02, the medical world’s own blog carnival, arrives in Seussian fashion at Musings of a Distractable Mind;
This one is priceless and really deserves its own post if I weren’t so busy: From Public Citizen’s Consumer Law and Policy Blog comes: Don’t Post This Cease-and-Desist Letter, Or Else. Seems some chuckleheaded lawyer representing DirectBuy — which isn’t happy that some folks think the company’s direct buy plan is a “scam” and a “nightmare” — thinks his threatening cease and desist letter is copyrighted and can’t be posted online. Ha! says Public Citizen, which tells Dozier Internet Law, P.C to stick it where the sun don’t shine. And yes, “chuckleheaded lawyer” is clearly an opinion.
Finally, while I thought I had some pretty good x-rays at my web site, this one beats them all: (Radiology Picture of The Day, via Respectful Insolence).

Enjoy the weekend.

(Eric Turkewitz is a personal injury attorney in New York)

Links to this post:

nastygram: don’t you dare post this nastygram on the web
ted has briefly mentioned (oct. 8) the recent doings of an outfit called dozier internet law, whose cease and desist letter to a consumer-complaint site not only demanded that the site take down certain statements about dozier’s client, …

posted by @ October 12, 2007 1:06 AM

more directbuy complaints (before they hired dozier internet law)
for those joining late: directbuy is a “home improvement” company with a mixed track record. there’s a number of mixed reviews of their services, available from both blogs and mainstream media outlets. more recently, after a blogger at …

posted by [email protected] (Dan tdaxp) @ October 10, 2007 11:19 AM

what is dozier internet law’s donald e. morris’s motive?
i am not a lawyer. but i am interested in law, and two posts at new york personal injury attorney deserve mention. both relate to dozier internet law, the lawyers for directbuy that sent a copyrighted cease-and-desist letter to a blog …

posted by [email protected] (Dan tdaxp) @ October 10, 2007 7:29 AM

lawfake backlash: directbuy + dozier internet law
as i wrote on dreaming 5gw, these are some of the many blogs: community of information and technology experts,; esoteric appeal,; i hate linux,; legal fixation,; new york personal injury law blog,; online liability blog,; overlawyered, …

posted by [email protected] (Dan tdaxp) @ October 09, 2007 7:55 AM

lawfare backlash: directbuy + dozier internet law
posted by dan tdaxp. many blogs, including. community of information and technology experts,; esoteric appeal,; i hate linux,; legal fixation,; new york personal injury law blog,; online liability blog,; overlawyered,; slashdot, …

posted by @ October 09, 2007 12:15 AM

lawfare backlash: directbuy + dozier internet law
posted by dan tdaxp. many blogs, including. community of information and technology experts,; esoteric appeal,; i hate linux,; legal fixation,; new york personal injury law blog,; online liability blog,; overlawyered,; slashdot, …

posted by @ October 09, 2007 12:15 AM

lawfare backlash: directbuy + dozier internet law
posted by dan tdaxp. many blogs, including. community of information and technology experts,; esoteric appeal,; i hate linux,; legal fixation,; new york personal injury law blog,; online liability blog,; overlawyered,; slashdot, …

posted by @ October 09, 2007 12:15 AM

here come the crocs suits
the comfortable footwear can apparently lead to “shoe entrapment” accidents at the tops and bottoms of escalators, attracting lawyers’ interest. (southern california injury law blog, oct. 1)(via turkewitz). more: earlier escalator suits …

posted by @ October 09, 2007 1:11 AM

October 5th, 2007

Texas Tort "Reform" and the New YorkTimes

The New York Times reports today on the huge increase in doctors flooding into the Texas since medical malpractice damages were severely capped in 2003. Want to know what else has gone up? Patient complaints and actions against doctors by the Texas Medical Board.

The article quotes an official as saying that disciplinary actions have risen only 8 percent. But is that really true? Not when I look at the numbers.

Here’s the quote buried on page 2:

Since 2003, investigations of doctors have gone up 40 percent, patient complaints have gone up 25 percent, and disciplinary actions about 8 percent, said Jill Wiggins, a board spokeswoman.

Maybe that official isn’t looking at these statistics. Nor, apparently was the New York Times.

Total Disciplinary Actions:
2002: 187
2003: 277
2004: 256
2005: 304
2006: 335

If you measure from 2002, the last full year before the caps were imposed, then disciplinary actions rose 79%. If one is going to do a “before” and “after” comparison that seems the likely year to use.

If, on the other hand, you are trying to spin the New York Times to claim only a minimal change, then you ignore the rapid increase over four years and minimize the damage by only discussing the change from 2005 to 2006.

By the way, 2007 isn’t shaping up much better, with 88 doctors disciplined at the Medical Board’s August meeting, 30 in June, 34 in April, and 41 in February. That’s 193 so far, with two more meetings to go, on a pace to well exceed the 2002 numbers.

So Texas is clearly getting more doctors. They just might not be the ones you want.

Top Ten Blawg List

I’ve been asked by Anne Reed at Deliberations to compose a top ten blawg list, as she in turn was asked to do by the anonymous editor of Blawg Review, because she is “simply the best.” I can’t argue with that.

So, without further ado, and without replicating any blawgs on the two lists linked above:

Overlawyered – Walter Olson‘s blawg that needs little introduction, giving you the skinny on suits that should never have been brought, and politics from the Big Business side;
TortDeform – The polar opposite of Overlawyered, currently written by Kia Franklin and bringing you the consumer side of the equation. If you read one you must read the other;
WSJ Law Blog – Peter Lattman brings quirkiness to his employer’s staid personality;
How Appealing – Howard Bashman is the best aggregator of law stories around, even though the brand new ABAJournal is breathing down his neck with competition. The only bad part is I now have to root for his Phillies since my Mets choked;
Sui Generis – Nicole Black is the reigning Queen of New York blawgers, and the first to link to my little corner of cyberspace;
Simple Justice – I don’t even practice criminal law, but Scott Greenfield is such a great writer, original and funny, that this should be part of anyone’s must read list. You won’t see the mere repetition of someone else’s thoughts coming off his keyboard.
Real Lawyers Have Blogs – Kevin O’Keefe has provided plenty of tips on blogging, and should be required reading for anyone who wants to do it well;
New York Attorney Malpractice Blog – Andrew Bluestone’s blog covers cases from all over, and is great reading for examples of how lawyers get themselves in trouble, and serves as a constant reminder on protecting oneself;
TortsProf – Bill Childs supplies a never-ending series of stories about torts, making him a must read in the field;
Kevin, M.D. – Not a blawg you say? Dr. Kevin Pho hits the intersection of law and medicine with his aggregated medical content on a regular basis. The Bashman of the med-bloggers.

Bonus Blog – Not technically a blog, but a blawg search tool, Justia.com allows you to click on a category and then get an RSS feed for that entire category. Pretty handy if your RSS feed is filling up with so many individual blogs, and you want to see some of the more irregular ones that float about.

And so this meme is now passed on to the above. But don’t blame me for starting it.

Addendum:
I’ve also now been tagged by Kevin Underhill at Lowering the Bar, who was in my rough draft along with other legal comics at Quizlaw, Legal Antics and SayWhat? The problem, of course, is that once you start with the comedians you never know what will come flying back at you. (I’ve also been tagged by Nicole Black who not only runs Legal Antics, but Sui Generis.)

I could easily fill another post with more bloggers. I felt guilty about cutting Judicial Reports, Matt Lerner’s terrific New York Civil Law, and Thomas Swartz’s New York Legal Update, for instance, but I was already top heavy with New Yorkers.

And since I read so many personal injury blogs, I felt bad not writing about up-and-comers such as Hans Poppe, Ronald Miller or Perlmutter & Schuelke, especially since most of the blawgosphere doesn’t usually see them.

And I thought about tagging a Highly Trained Monkey, not because she has anything do with law, but simply because she hates getting tagged with memes.

So I could list another 10, but it wouldn’t be right.

Links to this post:

barack obama’s health care reform heats up while hospitals fail to …
during his last attempt to sway the ama doctors from the bully pulpit, barack obama gave lip service to patient safety, but did not elaborate. it’s not like he has no access to the information about the root causes of 200000 unnecessary …

posted by Tom @ June 23, 2009 2:30 PM

thanks to robert ambrogi
for identifying overlawyered as one of the top ten legal blogs. we’re invited to name our ten favorite. i’d be remiss if i didn’t identify point of law, our sister blog, but that seems poor sport. here’s my ten, though, of course, …

posted by @ October 04, 2007 6:21 PM

Simply the Best
There are a lot of blawgs out there, and we try to read ’em all. But if this editor had to pick, right now, the top ten law blogs he thinks are simply the best…the winners are: Above the Law; Adam Smith, Esq. Balkinization …

posted by Editor @ October 03, 2007 1:06 AM

October 3rd, 2007

Long Island Woman Has Unneeded Double Mastectomy

Both breasts were removed. Why? Because a lab technician admitted to cutting corners while labelling tissue specimens.

According to an ABC News report, a 35-year old woman underwent a double mastectomy after being told she had breast cancer, when in fact, she did not. The Long Beach, Long Island victim has now filed suit in Nassau County Supreme Court.

If, in fact, the technician was cutting corners either to save time or money, then we may be looking at a very rare beast: A matter of punitive damages in a medical malpractice case (though this could also be a matter of general negligence if done by the lab and not medical malpractice). The standard here in New York for punitive damages is reckless conduct that endangers the health, safety and well-being of the public (as opposed to negligent conduct). And this must be proven by clear and convincing evidence (as opposed to preponderance of the evidence).

In fact, just last week the Appellate Division Second Department (where this case resides) issued an opinion on the subject of punitive damages in the context of an abortion case. In Randi A. J. v Long Is. Surgi-Center, the defendant disclosed to the mother of the patient that her daughter had been in, allowing the mother to deduce her daughter had an abortion. While the case was sent back to the trial court on other grounds, it is a good discussion of the state of punitive damages law in New York.

(Eric Turkewitz is a personal injury attorney in New York)

October 3rd, 2007

New York’s Disgraced Ex-Chief Judge Wachtler Readmitted to Bar

Sol Wachtler, formerly the Chief Judge of New York’s highest court, has been readmitted to the New York bar. Wachtler, who had served in the Court of Appeals for 20 years, had plead guilty to threatening and harassing his former lover 14 years ago. I had covered his motion to be re-admitted on February 21st (Sol Wachtler Getting Law License Back?).

Amongst other transgressions that involved stalking and hiring a private detective and anonymous obscene messages so that she would turn to him for help, he also had threatened to kidnap her teenage daughter.

He served a 13 month jail sentence and wrote a book about his experiences in which he blamed an undiagnosed mental illness and prescription drugs for his problems.

In a a biography of Wachtler (King of the Mountain) by Albany Times Union editor John Caher, he writes of the former Chief Judge:

“Wachtler struck down the ‘marital exemption’ to rape. Prior to his court’s decision, there was an exemption in the rape statute that essentially allowed a man to rape his wife, even a wife with whom he was estranged, with absolute impunity,” Caher says.

“Wachtler declared the law unconstitutional and initiated a reform. Other Wachtler decisions broadened the human rights law to prohibit discrimination against obese people and provided women with a far stronger sword against gender bias. He wrote a passionate dissent when his court found nothing wrong with a prison guard openly displaying his affinity for the KKK. Long before it was socially acceptable to tolerate homosexuality, Wachtler publicly and gratefully accepted the endorsement of a gay rights group.”

Coverage can be found here:

Once a top judge, now ‘delighted’ just to be a licensed lawyer (Newsday)
Sol Wachtler, former chief judge, able to practice again (NY Daily News)
Disgraced Ex-Chief Judge Is Readmitted to Bar (New York Law Journal, via New York Lawyer)

(Eric Turkewitz is a personal injury attorney in New York.)