August 20th, 2012

Bleating Secrets to the Press

Sal Strazzullo, as seen in the New York Times

I’ve seen this act play out before: A lawyer seeking press for himself spills damaging information about his client. Here’s the story.

Yesterday’s New York Times has a fluff piece on Salvatore Strazzullo, entitled “The Night-Life Lawyer” (as if there was a different set of laws for criminal or negligent conduct that takes place at night). The article looks like it was written by his publicist, claiming that this is a “niche” of the law.

The Times chronicles this lawyer having handled, over the past few years, a variety of second and third tier celebrities, doorman and drivers who go out to expensive clubs at night and figure out how to get in trouble. Whatever. That isn’t the part that hit home to me.

No, the part that hit home was that, in order to provide material for the story, Strazzullo spoke to the press about information received in confidence, that just so happens could also be damaging to his client. Providing confidential information is bad enough, but giving damaging information for a self-serving article seems to me to be about as low as you can go.

Ingrid Gutierrez with Drake and Chris Brown. Photos credit, RadarOnline

He talks about a fight in the tabloids two months ago between two rappers — Drake and Chris Brown — and their fight over a woman, the singer Rihanna. Sex, violence, booze, celebrities and thrown bottles. Real tabloid stuff, and this time with more well-known celebrities in the middle.

And he gets a client, a model (of course) named Ingrid Gutierrez who claims to have been hit in the face by a thrown bottle and took a few stitches.

This was the Times description:

Just two months ago, Mr. Strazzullo was sound asleep at his apartment when he received a typical plea for help from one of his regular clients, the Brooklyn model Ingrid Gutierrez. Ms. Gutierrez, 21, had dropped by W.i.P., a club in SoHo, with a half-dozen friends and found herself drinking Champagne at a table with the R&B singer Chris Brown. She was, by her own account, chatting with Mr. Brown’s bodyguard when a rapper, Drake, sent Mr. Brown a note indicating that he was having sexual relations with the singer Rihanna, a former girlfriend of Mr. Brown’s. This, predictably, precipitated friction between the men’s entourages: Voices were raised, obscenities exchanged, bottles thrown. One bottle struck Ms. Gutierrez, who was rushed to the emergency room for stitches. She wanted to sue.

Do you see that part in bold? One of his “regular clients?” Why not just send a gold-embossed invitation to the defense lawyers to ask about criminal problems she may have had?

But this part is even uglier, from the lawyer’s point of view. Look at this quote:

“I got her text at 4 a.m.,” Mr. Strazzullo recently recalled. “All it said was: ‘I just got hit over the head.’ ”

Now isn’t that nice, disclosing that, right away, she was thinking lawsuits and calling a lawyer? Why not just hand the defense another argument on a silver platter that lawsuits were the first thing on her mind? And that she couldn’t even wait for the morning?

Now it is conceivable that Strazzullo had the permission of his client to reveal this to the press, and that it therefore might not qualify as a violation of the code of professional responsibility. But. It is still a major no-no. The client, just 21 and in the modeling biz not the legal one, isn’t in a position to know how the information can be used against her. Even if the lawyer has permission to use that info, it still shouldn’t be revealed.

It is understandable, by the way, for a person injured in an assault to want to speak to a lawyer. Depending on what happened, they might be quite angry and upset and want to know what, if anything, they should do, and how they can strike back, legally, at someone that has wronged them. Anger is a huge motivator. But now she might have to explain things to a jury. She was hit by a bottle, why would she want to be explaining lawyer calls? Because one of the defenses will be — as it is in 99% of the cases– that the injured person just wants to hit the lottery regardless of what happened. Why worry if some judge will let the evidence in? (Defense: “Judge, this is admissible to prove she wasn’t hurt as bad as she says, as she had the capacity to think clearly and call a lawyer.”)

Have we seen this trick before? Two years ago I wrote about Chicago criminal defense lawyer Stuart Goldberg who spoke with always-in-trouble actress Lindsay Lohan about representation. There was no meeting of the minds on that score, and he then went bleating to the press about what was said.

Thankfully, this stuff doesn’t happen very often compared to the number of high profile cases that are out there. Most lawyers know better. But when they do spill the secrets, other lawyers should take note and expose what has happened so that others might learn from it (both lawyers and clients) that this is wholly unacceptable behavior.

August 16th, 2012

Gordon Gekko, HCA and Lawsuits (Why are medical costs going up?)

Greed is good. So says Gordon Gekko in the movie Wall Street. But is it the greed of medical professionals, or fear of lawsuits and the practice of “defensive medicine” that drives up medical costs?

The other day I responded to Dr. Sanjay Gupta’s op-ed in the New York Times on the related subject of more medical mistakes occurring because of unnecessary medical testing. And in that piece, and the part that spurred me to write, he claimed that defensive medicine was at fault.

This, of course, was dead wrong and has been disproved with empirical evidence.

But in doing that piece, I postulated three reasons why medical costs go up. The first one was deeply cynical:

Doctors get reimbursed for each test they do, so there is a financial interest in over-ordering tests;
Doctors simply want to look under every rock in the search for what ails the patient;
Doctors have heard so much about lawsuits, that they order extra tests to protect themselves (i.e. defensive medicine).

I gave docs the benefit of the doubt and, while mentioning the greed factor in #1, then went on to ignore it and said many were simply conflating the concepts of fear for the patient with fear of the patient.

Now in the New York Times two days ago comes a long story on healthcare giant HCA, a for-profit owner of hospitals. And guess what? I shouldn’t really have ignored #1. Because this publicly traded, and profit-minded company is doing everything possible to increase profits. And that means increasing billing. Another way of saying increasing medical costs. From the article:

Among the secrets to HCA’s success: It figured out how to get more revenue from private insurance companies, patients and Medicare by billing much more aggressively for its services than ever before; it found ways to reduce emergency room overcrowding and expenses; and it experimented with new ways to reduce the cost of its medical staff, a move that sometimes led to conflicts with doctors and nurses over concerns about patient care.

In late 2008, for instance, HCA changed the billing codes it assigned to sick and injured patients who came into the emergency rooms. Almost overnight, the numbers of patients who HCA said needed more care, which would be paid for at significantly higher levels by Medicare, surged.

Now you shouldn’t mistake this post has a wholesale critique of capitalism. But the fact is, many people (and companies) want to maximize their income and earnings. And that is reflected in increased medical costs as more tests are ordered and more ways are designed to bill “aggressively” to increase profits.

From Gordon Gekko:

I am not a destroyer of companies. I am a liberator of them! The point is, ladies and gentleman, that greed, for lack of a better word, is good. Greed is right, greed works. Greed clarifies, cuts through, and captures the essence of the evolutionary spirit. Greed, in all of its forms; greed for life, for money, for love, knowledge has marked the upward surge of mankind. And greed, you mark my words, will not only save Teldar Paper, but that other malfunctioning corporation called the USA. Thank you very much.

The cries from the right side of American politics have often been to blame lawyers for increased medical costs because of “defensive medicine” as they seek tort “reform” for their favored political contributors (even though such “reform” kills patients and is politically hypocritical) . Sorry, but that’s wrong The blame lies within a system that is designed to maximize profits. Greed.

August 14th, 2012

Advice for the Recent Law Graduate

Now that the bar exam is done, new grads are either looking for work, or about to start, or looking for tasseled loafers.

And, just like that, this email on the subject came into me yesterday with a relatively simply query:

If you find any time at all, I would love to hear any and all advice you would give to a recent law graduate in my situation with my goals.

My first bit of advice, of course, is to stay away from tasseled loafers. But while I’ve given advice on how to dress in the past, I don’t think that’s why my correspondent corresponded with me.

Since the type of situation/goals that the writer described in his email is my field of law I could probably write a few thousand words. Which most of you won’t read and which wouldn’t appeal at all to the non-PI lawyer readers.

So I’ll give the broader answer, for all recent grads, assuming that they have actually found a position in a significantly difficult job environment for lawyers.

And here is the nutshell version: Find a good mentor.

I write from experience. When I had my first job — after taking the bar in the summer of 1985, and finding out my results had been lost — I went to work for Fuchsberg & Fuchsberg, a large personal injury firm. Large, in a field known for solo and small practices, means about 30 lawyers or so.

I was told, when I started to work, that my secretary made more than I did. She was, after all, a hell of a lot more valuable to the firm than a know-nothing first year associate who had yet to be sworn in.

And my first supervising attorney had this to say when I started:

“For the first year, there are no stupid questions.”

And that statement was, I think, one of the best things that ever happened to me in my training. I was told, quite bluntly, to ask and re-ask and learn. Telling me that there was no such thing as a stupid question inoculated me, psychologically, from the fear of asking what I thought were really stupid questions, the answers to which everyone must know. Even if they just pretended to know.

Sure, you can read a book and get tips on taking depositions. You can take a class on trial tactics. There are form books to work from in drafting complaints and bills of particulars.

But the practice of law is a million other little things to go with it. Trying to figure out which clerks to go to to present an order to show cause, for instance, and in which order to see them, is a different kettle of fish. (Clerk one approves paper, clerk two takes money, back to clerk one to file papers, return at another time to get order, bring copy to conform your copy to original, etc. Of course, if there is no existing proceeding, you may need a completely different process. Etc., again.)

Learning how the machinery of the courthouse works, and the constant changes amid jurisdictions and how they interrelate (or not) to the actual substance of what you are lawyering about, is a never-ending process. At many firms, lawyers never learn this stuff as it is relegated to clerks, which is to say, they don’t always know how things are getting done, which is usually important if the statutory clock is ticking on a matter.

There will be a gazillion questions to ask, and the focus of the young lawyer should be to find the mentor who is open to hearing all manner of questions, foolish or not, and lets you ask those question without looking down at you.

In fact, for those who are in a supervisory position, it’s the best thing you can do for the newbie lawyer; keeping the door open to all manner of questions, no matter how trite they may seem. If there is a fear of asking questions — because the young lawyer is afraid of looking ignorant — then the mentoring process has completely failed. Big time.

This doesn’t mean, of course, that the supervisor has to give THE answer, but at least direct the young lawyer as to how to find the answer. Directing someone toward a small book on differing municipal statutes of limitations and where service can be made, or to an authoritative text on obstetrics and gynecology, can open whole new doors of learning. That which is routine for the old-timer can be bewildering for the newcomer.

And that is the best advice I can give to the new grad. And the supervising attorney. Get a good mentor. Or be a good mentor. And forget the tassels.

August 2nd, 2012

New York’s Medical Malpractice Crisis (Huh? Where did it go?)

Senator John DeFrancisco (Republican, Syracuse)

Since I’ve twice hit the subject of “defensive medicine” in the last couple weeks — doctors claiming to do extra procedures out of fear of being sued — I thought it would be a good time to update the state of the medical malpractice crisis in New York. OK, I didn’t really think of this on my own as a time to update. I got a press release on the subject. And while I don’t generally act as a distributor of press releases, this one seems to be particularly important.

The author is New York State Senator John DeFrancisco (Republican, Syracuse). He is currently the powerful chairman of the Senate Finance Committee and was formerly the chair of the Judiciary Committee.

And guess what? The “crisis” doesn’t exist. Without further ado, a brief press release from today:

STATEMENT FROM SENATOR DeFRANCISCO

This year’s modest malpractice insurance increases confirm that there is no malpractice crisis in New York State.

Malpractice costs have been rising more slowly than overall medical inflation in recent years, and the number of malpractice cases filed has gone down in every successive year since 2007. Today, New York has the fourth most doctors per resident of any state, and continues to graduate many of the nation’s new physicians every year.

Given the improving financial outlook of Physicians’ Reciprocal Insurers and the record $1.2 billion surplus that Medical Liability Mutual Insurance Company recorded last year, significant increases in malpractice insurance costs are unlikely in the years to come. In fact, even today’s modest increases may have been unnecessary.

Moreover, numerous studies have shown that malpractice costs can be dramatically reduced by implementing safety programs that protect patients and reduce preventable medical mistakes before they happen.

August 1st, 2012

Sanjay Gupta Gets It Wrong

In an op-ed in today’s New York Times (More Treatment, More Mistakes), Dr. Sanjay Gupta argues that we currently face a crisis of about 200,000 people dying each year from medical mistakes. In doing so, Dr. Gupta — a neurosurgeon and chief medical correspondent for CNN — says that many of the injuries and deaths come from too many tests and procedures.

He cites a few war stories to support his theory about too many tests — and injuries/deaths that come from the treatments or misdiagnosis. But that is not the part that I take issue with.

This is the problematic part: Dr. Gupta claims that the reason too many tests are ordered are, you guessed it, “defensive medicine” because doctors fear lawyers and lawsuits. The problem is not with the medical community, he says, but the legal one. He writes:

Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not. In a recent anonymous survey, orthopedic surgeons said 24% of the tests they ordered were medically unnecessary. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.

I take issue with that last part I put in bold. Actually, it isn’t just that I take issue with it, but that it flies directly in the face of empirical data. It seems to be accepted wisdom in the medical community that lawyers are to blame for increased costs (and now, increased injuries and death). I noted this exact same issue a couple weeks ago when Florida doctor Lee S. Gross made similar comments to his local paper.

Given that the medical community has a long and rich history of doing research to improve medicine, you would think that, when research challenges accepted wisdom, that the community would sit up and take notice.

As I noted to Dr. Gross, when Texas implemented medical malpractice “reform” back in 2003 that capped pain and suffering awards at $250,000, the expectation was that there would be fewer lawsuits (that part worked), more doctors coming to Texas (that part failed) and lower medical costs (also a failure). The reason for fewer lawsuits, of course, is that medical malpractice cases are so difficult, expensive and risky to bring, that lawyers can’t afford to take smaller suits.

If you chop out the significant issue of pain and suffering, you are left with economic loss. And if the patient makes just a modest living, that economic loss component would also be low. Lawyers won’t take the cases because lawyers also have mortgages to pay and offices to run. It’s basic economics. The victim is left in the cold looking at the closed courthouse door.

Now back to the studies I just referenced. The actual data in one study showed that:

There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform.

And the data from a second study showed that so called “defensive medicine” continued even after patient rights had been eviscerated. In fact, medical expenses went up 13% faster than the national average.

There are really only three potential reasons for Dr. Gupta’s theory of too much testing.

Doctors get reimbursed for each test they do, so there is a financial interest in over-ordering tests;
Doctors simply want to look under every rock in the search for what ails the patient;
Doctors have heard so much about lawsuits, that they order extra tests to protect themselves (i.e. defensive medicine).

The problem here is that 2 and 3 above seem to be conflated by many, that being fear for the patient and fear of the patient. If the Texas Malpractice Experiment is a failure in controlling costs and encouraging doctors to move to Texas, then the problem has to be either the financial interest or the desire to do good. But let’s not confuse the desire to do good with “defensive medicine” to protect against lawsuits. Because the empirical data has shot that theory down.

Don’t blame lawsuits for more testing and more deaths from unnecessary treatments. Gutting the Texas malpractice system did not reduce medical costs and tests. The problem lies within the medical community.

[Updated — More on this from Max Kennerly: Atul Gawande Versus Sanjay Gupta On Defensive Medicine]