September 5th, 2014

Joan Rivers Death and ‘Risk of the Procedure’

Joan Rivers in 2010, via Wikipedia

The phrase grates on me big time, that a poor medical outcome was a “risk of the procedure.” And so it is now that we see in a couple places with the death of Joan Rivers after she stopped breathing during an out-patient endoscopic procedure, that the phrase “risk of the procedure” is popping up, as if to excuse what happened.

One leading possibility for death, of course, is that it was related to the anesthesia, which Ms. Rivers likely had numerous times considering all the jokes she made about her own plastic surgery. A sudden allergic reaction wouldn’t exactly be on anyone’s list of possible causes.

At HCP Live, a medical website, they first look at the incidence of cardiac arrest from anesthesia, and it looks positively frightening, by starting out like this:

Although perioperative cardiac arrest due to anesthetics occurs just 10.8% of time, according to the Mayo Clinic, it represents the most serious complication and can have devastating results, as witnessed by the recent death of comedian Joan Rivers.

Wow!!! 10.8% of the time?!?

Well, not quite. That would be 10.8% of all cardiac arrests, which itself are quite rare. Not in the HCP article, but deep into the linked Mayo Clinic article is this:

At the Mayo Clinic, the incidence of arrest primarily attributable to anesthesia was 0.5 per 10,000 anesthetics, which represented 10.8% of cardiac arrests that occurred preoperatively…

So, the incidence of cardiac arrest is actually exceedingly rare.

Moving on, the article starts goes to the potential medical excuses for what might have happened:

The surgery was apparently a minor, elective procedure, but the complications Rivers suffered reminds patients and providers that there are always risks to be considered during surgery. Some of the factors that can increase the risk of cardiac arrest during surgery include coronary artery disease, cardiomyopathy, congenital heart disease, and heart failure.

And what is missing? The failure to properly ventilate or medicate the patient.

Want to know why excusing a bad outcome by simply saying it is a risk of the procedure is so awful? Think about getting hit in the rear by another car while driving. Hey, you knew that others on the road might not be paying attention, didn’t you? Isn’t an auto collision (not an accident) one of the risks of being on the road? Do we excuse that inattentive driver because you knew that being on the road was risky?

Senator Rand Paul pulled a similar stunt with BP’s gulf oil spill, dismissively saying “Sometimes accidents happen.” Sure. Or maybe the company acted with “conscious disregard of known risks.”

Sometimes a deer bolts into the road and can’t be avoided. But sometimes, someone is following too close and rear-ends you because they didn’t leave enough room to stop.

What is the standard here for the Rivers matter in evaluating possible medical malpractice? The standard to look for by investigators, be they New York’s Department of Health (now underway) or the family’s private lawyer, are twofold in looking at the acts or omissions of the medical staff:

Was the act (or omission) a departure from customary and usual medical practice?

Was that departure (or omission) a substantial cause of injury/death?

Simply calling something an “accident” or saying it is a “risk of the procedure” is the type of language that immunity-seekers use (i.e. defense lawyers in the courtroom). But it isn’t the law.

The press should take note in writing stories on the subject, and be careful of the highly dismissive “risk of the procedure” lingo that may flow from some places.

August 26th, 2014

GPS is Making Us Dumber (And other thoughts on the law)

Some folks want directions when they go someplace new. Others want a map.

The directions tell you lefts and rights. The map tells you where you came from and where you need to go.

Many GPS devices simply tell you to make those rights and lefts. They don’t tell you where you are. And thus we become unthinking followers.

GPS devices were wrong at least twice on last week’s family vacation in Maine, once while I followed a family member and a second time while sitting shotgun. The GPS said to go one way and my brain said to go the other. The only reason I overruled the GPS directives was because I’d looked at a map before leaving.

So how is this related to law? All too often I see it at depositions, where the other lawyer comes prepared with page after page of questions to ask — the same questions at every deposition.

The lawyer follows the directions given, dutifully jotting down the responses.

The highly detailed outline is like the GPS. It tells you which questions to ask, but doesn’t give you a road map of where you actually need to go.

But the road map exists. It’s in the instructions that the judge will give to the jury at the end of the case. This is the map of what you need to prove, and thus needs to be the focus of the questions. It isn’t just that you need those instructions before the deposition, but that you need them before you file suit (or when retained to defend).

This requires thinking, not following. The lawyer that thinks, instead of follows, will do a deposition that is half as long and twice as useful.

It’s OK to have a general outline, of course, as you wouldn’t want to miss out on an important topic. But becoming a slave to the outline is the danger. Topics are good, specific questions from stock outlines, not so much.

My advice: Leave the directions, take the map.

August 15th, 2014

Cops in Tanks vs. Cops on Bikes

The juxtaposition of the pictures couldn’t be more stark. Out in Ferguson, Missouri, in the wake of an unarmed teen being shot dead by a cop, we see a militarized police force racing in to use all their toys of crowd control: Tear gas, rubber bullets, armored personnel carriers and, of course, the military-style uniforms with riot armor. Everything about it screams, “Stay the hell away from us.”

And the other picture is one I noted on the Gothamist a couple weeks back: A cop on a bike. The article is ostensibly about being caught riding on the sidewalk, but that isn’t what captured my eye. No, I looked and saw an extremely approachable human.

Which cop do you want on your street? The one that says stay away, or the one that waves hello?

Which cop is more likely to be a calming effective?

Which cop is more likely to antagonize and make a situation worse?

Which one is more likely to infringe on the rights of others?

Which one will cost the taxpayers more money, both in hardware and lawsuits?

Which cop is the one that people would most likely to approach with important information?

Do we pay the cops to protect us, or protect themselves?

And now, the local cops are gone from Ferguson and the highway patrol cops have come in. And what did they do? They walked around in regular cop uniforms without all the toys and chatted with the protestors and worked to calm things down. Some protestors got hugs.

The Ferguson cops seem to have done everything they could to make the situation worse, though this is helped with the dumping of excess military hardware into our police departments. Hey, if you have toys, don’t those toys have to get used? (See, Rise of the Warrior Cop, The Militarization of America’s Police Forces, by Radley Balko.)

One can only hope that police departments around the country are taking studious notes on crowd control, and leaning what not to do. The use of military weapons in civilian areas is a horrible trend, and the fall-out from it can affect any one of us.

July 31st, 2014

More Motions to Dismiss Against Dr. Michael Katz

Justice Hart’s opinion of Dr. Katz.

Your familiarity with the defamation suit against me by Dr. Michael Katz will be presumed. Very briefly, he’s the guy that sued me because Justice Duane Hart called him a liar about 25 times and I reported it. He can’t sue the judge, so he figured he would sue me. I’ve moved to dismiss and have him sanctioned for his frivolous suit, frivolous conduct, and making an improper demand for $200 million.

My co-defendants have now also made motions to dismiss. Samson Freundlich did a “me too” motion (Affid – Freundlich) that includes this gem of a sentence that gave me a laugh:

I hereby reiterate, stress, pinpoint, underscore, focus, resonate, emphasize and magnify their same, similar and identical legal posture to myself, defendant SAMSON FREUNDLICH and incorporate into this affirmation all of their said motion papers-including, but not limited to, their memorandum of law with their annexed respective exhibits previously submitted to this honorable court and heretofore respectfully adopt, restate and recapitulate, without exception, all of their legal and factual arguments presented therein in their entirety.

And co-defendants Lester, Schwab, Katz & Dwyer and its partner Paul Kassirer, cross-moved with this filing today: Memo of Law. Theirs is a bit different than ours since we did an original publication of blog posts and theirs deals primarily with an email that Kassirer sent.

Additional documents in that filing are Kassirer’s Affidavit and this July 29 Order where the defendants in the underlying action tried to get a different doctor to do a new defense medical exam after Justice Hart made mincemeat out of Katz, out of concern that Katz would be shredded on cross-examination due to the judicial findings by Justice Hart that he had lied. That application for a new medical-legal exam was denied.

July 17th, 2014

Motion to Dismiss/Sanction Against Dr. Michael Katz

This is what Justice Duane Hart thinks of Dr. Michael Katz

Remember how I reported that I’d been sued again for defamation? Justice Duane Hart in Queens had ripped Dr. Michael Katz a new one in open court for acting like Pinocchio. And the good doctor, not being able to sue the judge for calling him a “liar” about 25 times or so, figured he would sue me instead for reporting it. (Shooting the Messenger (I’ve Been Sued Again))

Both Scott Greenfield (Turkewitz Sued By “Liar” Doctor, Michael Katz) and Marc Randazza (Judge Admonishes Expert Witness – Expert Witness Sues Blogger Who Reported On It) mocked the lawsuit.

Well, the motion to dismiss was filed this morning. And with it, the motion for sanctions. Against both the doctor and the lawyers who drafted this misbegotten, ill-advised, mongrel of a suit destined for the trash heap of history.

Having sued me on five separate causes of action, the memo runs a bit long. But this is the lede from the Memo of Law:

Last year Justice Duane Hart in Queens made numerous acidic comments about well-known defense orthopedist Michael J. Katz, calling him a liar at least 25 times (among other things). Eric Turkewitz reported on these extraordinary court proceedings on his law blog. Since Katz can’t sue the judge, he sued Turkewitz instead for reporting on what the judge said, claiming defamation, as well as a kitchen sink of other claims based on the exact same protected conduct. Not only must the case be dismissed since such reportage is absolutely protected by the law, but sanctions should be imposed against the plaintiffs for each of the clearly frivolous claims.

Part of that kitchen sink of claims that were alleged, to act as a bastard surrogate for defamation, is prima facie tort. About this, the brief says:

Prima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It is not a catch-all alternative for every grievance, annoyance, gripe and squawk that is not independently viable. There is no cause of action for saying mean things about someone on the Internet. Not in this country.

For those that care about the sanctions part, and what it means in New York, the brief gets there at page 28 after deconstructing each of the causes of action, and includes this piece:

It is important to note that the CPLR sanctions are set at $10,000 per prevailing party and each individual claim. For the purposes of this matter, there are two plaintiffs and two defendants and five frivolous claims, thus subjecting the plaintiffs to as much as $200,000 in costs under CPLR 8303-a. A long analysis of this subject was done by Justice Lebedeff in In Re Entertainment Partners Group, Inc. v. Davis,.

The complaint he filed is here, where Katz confesses in exquisite and meticulous fashion about the judicial reaming he got. You’ll find it on pages 15-30. Yeah, you read that right, it took him 15 pages to describe all the times he was called a liar.

Having confessed, conceded, declared, attested and otherwise sung to the world that Justice Katz did, in fact, call him a liar, it is remarkable that any lawyer would take this matter and sue me for reporting on what happened in court. Any lawyer worth a damn knows the suit is empty, which means to me that the only logical reason it could have been taken is either because Katz offered the firm enough money to do so, or Katz is a friend/relative of someone at the firm. But friends don’t let friends file frivolous suits.

Which is why the most important word a lawyer needs to know is “no.” Placing your client, and yourself, in the line of fire for sanctions is, as we say in legalese, an ill-considered, imprudent, insane, misguided, half-baked, bird-brained, blockheaded, short-sighted and otherwise dumb-ass thing to do. I’ve said this before my friends, and I’ll say it again: I have a thesaurus and I’m not afraid to use it.

For those that care about such things, this is the transcript of the original testimony on April 12 2013.

The transcript of the July 1st proceeding is here.

The transcript of the July 8th proceeding is here.

A supporting affidavit from my counsel is here.

The video of the one minute and 56 second exam that Katz did was up on YouTube, but YouTube took it down, despite it being part of a legal proceeding.
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Update (7/31/14): My co-defendants have now also moved to dismiss.