June 29th, 2017

GOP Surrenders Its Soul in Medical Malpractice Vote

Yes, a real case. Yes, the x-ray hangs in my office.

Yesterday the Republican Party gave up another piece of its soul when the House of Representatives voted to restrict the ability to bring medical malpractice cases nationwide. I wrote about this pending legislation back in March.

So let’s review some core conservative principles and see why I wrote that the party sold its soul:

First, the GOP claims to believe in states rights, and have been more than happy to hoist that banner to proclaim that the federal government should keep its nose out-of-state issues such as same-sex marriage. Local control is a big thing for conservatives. Huge.

By federalizing medical malpractice laws to slap an artificial, one-size-fits-all 250K cap on pain and suffering awards  — most clearly a statewide function — the GOP went 100% contrary to its conservative ideology.  This is the exact opposite of the limited government that the party claims to follow.

Second, the GOP likes to claim it is the party of personal responsibility, and never shies away from telling the downtrodden to pull themselves up by their own damn bootstraps. Here, the Republicans once again do a complete about-face, and grant privileges and immunities to those that actually committed the wrongful acts. The GOP granting immunities for negligence? A 100% rejection of its own core philosophy.

Third, the GOP now saddles the public (and the injured) with costs that should be dealt with in the private sector. Serious injuries cause people to lose jobs and opportunities, saddles them with debts, and otherwise makes their lives miserable. They often will be forced onto public assistance and Medicaid.  Instead of the costs being paid by the tortfeasor, via their insurance policies, the costs would be paid with your tax dollars.  Kinda like socialism.

So there you have it, a complete abdication of conservative principles, in favor of a more powerful government with a socialistic policy of the taxpayer paying the costs caused by the doctors and hospitals.

This was called a “tort reform” bill. I would have called it the Big Government-Tortfeasors-Protection-Socialism-Act.

A final thought: This vote was very close at 218-210 vote, and 19 GOP members voted against this appalling legislation. It takes guts to stand up for what you believe in when you are getting pressure from your friends, and that is something that should be noted.

Addendum: Some quotes from Republicans that were opposed to this bill, from the Washington Post:

“This represents a massive expansion of federal authority,” said Rep. John J. Duncan Jr. (R-Tenn.), who voted against the bill.

“It’s a power grab by Washington,” said Rep. Steve Cohen (D-Tenn.), who also voted against the measure.

And the Republican’s House Liberty Caucus put out the statement blow decrying the seizure of federal control over state court actions. While they claim the bill’s objectives are worthwhile (contradicted by actual evidence), they stand on their principles of limiting federal control:

 

June 28th, 2017

Canada Claims Global Jurisdiction Over Internet

I know what you’re thinking, the title of this piece must be a joke, right?

But not according to news reports regarding a decision out of Canada’s Supreme Court.  Here’s the lede from the Toronto Star:

Google is barred from displaying anywhere in the world the websites of a company accused of counterfeiting a Canadian technology company’s products, the Supreme Court of Canada has ruled.

In a 7-2 ruling that has broad implications for freedom of expression, the reach of courts to protect intellectual property and other rights, and for the operations of Internet-based businesses, the country’s top court upheld a sweeping injunction against Google’s ability to display commercial content that was at the heart of a court battle.

The very brief background is a claim that Datalink Technologies Gateways ripped off the technology of Equustek Solutions by  relabeling it. A fight ensued, resulting in a Canadian order that Google delist Datalink websites. (Link to the brief order: Google Inc. v. Equustek Solutions Inc.) (Copy: Google Inc. v. Equustek Solutions Inc.)

That all being Canadian law, I offer no opinion, especially since there’s a much bigger fish to fry.

And that fish is a whale, as the Supreme Court of Canada apparently wrote that Google must delist Datalink not only in Canada, but worldwide.

Let that sink in. A government tells Google to delist worldwide.

The lawyers for the winner think they have a big win:

The ruling is the “first global de-indexing order” and will be “extremely important” worldwide, because it gives a remedy against “gatekeepers” of information such as Google, or Internet service providers, said McCarthy Tetreault lawyer Barry Sookman, who acted for several intervenors representing publishers of literary and musical content.

While the high court apparently thinks that removing sites is only a temporary injunction, for the real issues to be resolved later, the ramifications are, simply stunning.

Because you know who else will think this is “extremely important”? Every tinpot dictator in the world.

I understand Turkey’s president, Recep Tayyip Erdoğan, often doesn’t like what people write about him. And Vladimir Putin is reputed to have killed journalists.

So ruthless, thin-skinned autocrats that have no free speech in their countries can order Google to delist articles worldwide.

Essentially, Putin could demand that the price of doing business in Russia is for Google to delist any articles in the New York Times and Washington Post dealing with its attempts to interfere with our election.

All he needs is a court order from the courts he controls claiming lèse-majesté — it being defamatory to offend the ruler. Truth is irrelevant.

Again, let that sink in. If Google complies with this order, regardless of whether it is temporary, then the price of doing business worldwide is allowing dictators control what we see on our own screens.

Updated with links from elsewhere:

Canadian Supreme Court Says It’s Fine To Censor The Global Internet; Authoritarians & Hollywood Cheer… (Masnick @ Techdirt)

Global Internet Takedown Orders Come to Canada: Supreme Court Upholds International Removal of Google Search Results (Michael Geist)

Ominous: Canadian Court Orders Google To Remove Search Results Globally (Keller @ Center for Internet and Society)

Top Canadian Court Permits Worldwide Internet Censorship (Mackey and McSherry and Ranieri @Electronic Frontier Foundation)

 

 

June 23rd, 2017

NY Leg Advances Change to “SUM” Legislation (Updated!)

The last two days I covered action in the New York Legislature to change the medical malpractice statute of limitations and make a modest change in where lawsuits can be brought (both of which still need the signature of the Governor).

Today, I cover a third piece of legislation, which while exceptionally important is virtually unknown to most. These posts come in a flurry because that’s how our Legislature works, passing bills  in a frenzy in the closing days of the annual January-June session.

This particular legislation refers to Supplementary Uninsured/Underinsured Motorist (SUM) insurance.

Stop!!! Don’t leave!!!  Trust me, while the issue sounds boring, it could be the difference between bankruptcy or not to anyone seriously injured.

In New York, we have particularly crappy minimum levels of insurance, known as 25/50 on non-commercial vehicles. That means that, if you are injured by someone with such minimal insurance, no matter how badly, the most you can obtain from that insurance policy is $25,000. (The 50 refers to the aggregate of all claims from the collision.)

And if badly injured, you can’t work and pay your bills. Which is why bankruptcy is not uncommon amongst those victimized. Unless you protect yourself.

Unbeknownst to most folks, there may be a second policy at play — your own — if you own a car. This is the SUM insurance if the car that plowed into you and broke your back has that minimal insurance.

Now here’s the catch, and the reason I write: The default on the SUM policies is a mere 25K. So even if you are a high earner, bringing home the family bacon, and have a $500K bodily injury policy of  your own, it won’t matter if you don’t read the fine print. Because that $500K is only to protect the person that you injure. It isn’t for yourself.

Yeah, it’s in the fine print. Most don’t know about it. Even one legislator I spoke to a couple of years ago was so unaware of it that, when her child was injured, was stuck with that minimal policy. She had no idea.

And, before I get to the legislative fix, one more point. That SUM policy only comes into play if your own policy is larger than the car that hit you. So, in other words, if the car that ran the light and clobbered you had a 25K policy, and you have a 25K SUM policy, you don’t get an extra 25K, because you would only be entitled to the difference between the two.

OK, now on to the fix. The New York Senate passed a bill (S5644A) in the waning hours of the legislative session to change the default from 25K SUM insurance for yourself to be the same as the amount of bodily injury coverage you have selected to protect others.

So if you have a 500K bodily injury policy, your default would be 500K SUM. You can, of course, decline it if you want. But most people who feel the need to buy insurance at higher levels aren’t the types of people who generally would decline.

This bill passed, as had the medical malpractice bill and the venue bill, with wide bipartisan support. And by wide I mean 62 out of 63 votes.

Unfortunately, the legislature adjourned for the session as the Senate passage came too late for the Assembly to vote. It will only come to the Assembly floor if they are called back into session, a possibility given that there is a large, unresolved issue of mayoral control of NYC schools.

Otherwise, it is wait till next year.

In the meantime, if you are renewing your auto policy, look for that part about SUM coverage and make sure you get as much as you can. It is, relatively speaking, dirt cheap, which is why your broker may not even bother to mention it to you. But it can make all the difference in your life if some underinsured car clobbers you.

And one day I’ll come back to discuss our ridiculously low 25/50 auto insurance policies.

Update (6/29/17) – Gov. Cuomo called the Legislature back to Albany for a special session, to deal with the issue of mayoral schools. And any other lingering issues.

So late last night, by a vote of 104-6, the Assembly joined the Senate in passing the SUM bill. It goes now to the Governor for signature.

This is a very big deal, as all too often we see cases of people with decent insurance getting hit by cars with little insurance, and the victims then find out to their own dismay that they could have easily and cheaply covered themselves for this event, but didn’t. Now that coverage will be the default.

 

 

June 22nd, 2017

NY Legislature Amends Venue Law for Lawsuits

New York’s counties

As the New York Legislature raced to a close yesterday, I wrote about a change in the statute of limitations for medical malpractice cases.

But that wasn’t the only change that affects the personal injury field. There was also a change as to where lawsuits can be brought.

Currently, a lawsuit can generally be brought either in the county where the plaintiff resides, or the county where the defendant resides. Thus, if someone from Manhattan and someone from Suffolk were involved in an auto collision in Nassau — which sits between the two for you non-local readers — the plaintiff could choose either Manhattan or Suffolk as the venue for the lawsuit. But not the county in between where it actually happened.

But late yesterday both the Senate and the Assembly passed a bill to amend that to include also the place where that collision took place, adding the words in all caps to CPLR 501(a):

Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; THE COUNTY IN WHICH A SUBSTANTIAL PART OF THE EVENTS OR OMISSIONS GIVING RISE TO THE CLAIM OCCURRED; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.





While this provides a bit more flexibility for the individual that chooses the forum, the practical application is that one may now bring suit where important eye witnesses are most likely located, thereby increasing the chance one will be able to get them into court for trial.


A good tool for the lawyer’s toolbox. The bill passed with very wide bipartisan support and now goes to the Governor for signature.


                

    
    
    
     


        

  

        
 

    June 21st, 2017
    

      NY Senate Passes “Lavern’s Law” — A Date of Discovery Law for Cancer Cases (Updated!)      

        

    
    

                  
A month ago I posted about New York’s need to pass “Lavern’s Law,” which extends the statute of limitations in medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made.


The problem, as I noted back then, was that some folks lost their rights due to our short statute of limitations — 2 ½ years for most cases and a mere 15 months against a municipality — before they even knew they had an undiagnosed cancer or other condition.


The Assembly had, in prior years, passed the bill. The obstruction was in the Senate.


A couple hours ago, though, the Senate passed the bill. Or at least a version of the bill.


While the original version related to discovering malpractice in general, the Senate version is restricted to undiagnosed cancers and other malignant tumors.


This is a victory for consumers no doubt, in that some of them won’t have the courthouse doors slammed in their faces before even being aware they had any rights to begin with.


The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.


When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:


A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.


She left behind family including an autistic daughter.


The bill had bipartisan support, and passed the Senate by a vote of 55 to 6.


Reconciliation with the Assembly is next, and assuming that happens, on to the Governor for signature.


The extension of the statute of limitations is not forever, of course. It starts to run from the date of discovery, and the time to start suit will end seven years later, even if the cancer is not discovered.


This is all very good for New York’s residents. Should they fall victim to malpractice, they have to worry less about being victimized a second time by an unjust civil justice system.


Updated: The Assembly has now passed the same bill. It goes to the Governor for signature.  He had previously been a supporter of the law.