It’s that time of year when my office gets reminders in the mail about what we must have posted and visible to all employees. They are entitled, by law, to be apprised of their rights if they hurt themselves here, or become too ill to work. That’s through Worker’s Compensation and through disability benefits. Posters in english and Spanish are prominently hung in our file room, providing helpful information in case the need arises. And that’s as it should be.
So if that is how New York State wants us to treat employees, you might think that it would have a similarly caring approach with consumers of medical care. You might think that there must be signs up in prominent places in hospitals and doctors’ offices advising patients of the help available to them if they aren’t treated properly—perhaps because they end up as victims of medical negligence–and you’ve just been missing them all these years.
But of course, you’d be wrong. There are no signs advising such patients that they can pursue a claim for medical malpractice, and that when the hospital fails to take the claim seriously, as is usually the case, they can get themselves a lawyer and take the hospital or doctor to court. There are no signs, in any language, letting patients know about the statutes of limitations, or time limits, so that by the time a family overwhelmed by the toll a medical error has taken gets around to considering a suit, it is often too late. And this is particularly true when a NYC Health and Hospitals facility is involved. Generally, if you don’t know enough to file your Notice of Claim with their office within 90 days of the malpractice, you’re prevented from pursuing your claim any further.
Not surprisingly, the victims who are cheated out of their day in court are usually those who can least afford to miss that opportunity. They are the poor, the immigrants, the day laborers, the speakers of languages other than english, the folks who are disenfranchised and at the margins of society, who have little to no idea about our system of civil justice, let alone how to access it.
I can’t tell you how tired I am of having to tell the people who contact me after time has run out that they are without recourse in our court system. Such a system is not only unfair. It is, frankly, un-American. It does not comport with the concept of a land of opportunity, where there is “justice for all.” It benefits only doctors, hospitals, and insurance companies, while it deprives patients who are often severely injured, through no fault of their own, of any opportunity to better their lives in the wake of medical malpractice. Are we really OK with a system in which the hospital and insurance industries count on the ignorance of consumers of medical care?
A couple of weeks ago, a 2-year-old boy accidentally shot and killed his own mother while she shopped in an Idaho Walmart.
By all accounts, the mother was a smart, professional and otherwise responsible woman. The infant had managed to unzip a specially-designed gun compartment in his mother’s purse, from which he withdrew the gun before firing it. How could this have happened, wondered people across the country? But the more important question is, how can we make it stop?
That got me thinking about tort law, and my first year of law school, when the case of Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928) would become etched into my brain forever. It is a classic, and addresses the concept of foreseeability, which is a key ingredient in negligence actions.
Even though a female passenger at a train station was injured due to carelessness, the railroad was not responsible. Its employees could not have foreseen that a man who was carrying a wrapped package that turned out to contain fireworks would drop it as he tried to board his train, causing an explosion, which in turn caused a shock that dislodged heavy scales at the opposite end of the platform, which fell on the passenger and hurt her.
But the tragedy in the Idaho Walmart was not so hard to foresee.
- Was it likely that the manufacturer of the purse knew that buyers might include mothers of young children, who might find a closed zipper compartment tantalizing enough to open it, and find out what was inside?
- Was it likely that the manufacturer knew that such a mother, possibly harried in trying to manage such young children, might not engage the gun’s safety before placing it inside the specially-designed compartment? Or that if she remembered to engage the safety, a toddler might figure out how to disengage it?
- Was it likely that a young mother carrying her weapon would have it loaded with live ammunition?
Of course it was, in answer to all such inquiries. So if negligence, according to Black’s Law Dictionary, is “the failure to use such care as a reasonably prudent and careful person would use under similar circumstances,” isn’t the maker of this special purse negligent? Here, a lack of care and foresight certainly caused, or contributed to, the shooting death of a young, professional woman, mother and wife, in the prime of her life.
If you think the manufacturer has had a sudden epiphany as a result, and will stop selling this product, you haven’t been following the recent news about auto manufacturers who buried information showing that defects in their cars were killing people, while continuing to market them to the public aggressively. As the Ford Pinto debacle proved, sometimes it takes a lawsuit.
Why hasn’t the recently widowed husband sued the maker of this problematic purse?
A recent New York Times article entitled “Dying in the E.R., and on TV” raises troubling issues concerning patient privacy and the emotional distress suffered by a family already hurt by the death of its patriarch.
In April, 2011, ABC-TV’s hospital-based reality show, “NY Med,” was filming inside NY Presbyterian/Weill Cornell Medical Center the night Mark Chanko was brought in. He had been badly hurt by a garbage truck outside of his Manhattan apartment building, and died later that night when his heart stopped. He was 83.
His widow, Anita Chanko, and their children grieved. But the pain came flooding back over one year later, when Ms. Chanko turned on her television, and saw her husband’s death on the screen–part of one of her favorite shows, “NY Med.” Though the image was blurred to prevent most from being able to identify him, Ms. Chanko recognized her late husband. She is quoted in reporter Charles Ornstein’s article saying: “You could tell it was him. You could hear his speech pattern. I hear my husband say, ‘Does my wife know I’m here?’ ” She then hears the medical staff discussing his deteriorating condition, the use of shock “paddles,” and whether they can pronounce him dead. A few weeks after the airing of the episode, Ms. Chanko heard from a family acquaintance, who also recognized him on TV.
The show is not strictly geared to the advancement of science and medicine, to say the least. As the article notes, the promotional blurb for the episode still says, “Sebastian Shubl, a Dr. McDreamy-like young trauma surgeon, tries to save the day when a critically injured pedestrian struck by a vehicle is brought to the E.R.” And hospitals love the free publicity. “You can’t buy this kind of publicity, an eight-part series on a major broadcast network,” gushed a NY Presbyterian public affairs executive.
Neither Mark Chanko, nor anyone in his family consented to the filming of his care at the hospital, and they were outraged. They filed complaints with the appropriate agencies, the hospital and ABC and they brought a lawsuit grounded in claims of invasion of privacy and intentional infliction of emotional distress. Ultimately, the Appellate Division, First Dept., dismissed all of the family’s claims. Despite at least anecdotal evidence that Mark Chanko’s privacy had not been protected properly, the Court absolved the defendants of all liability, finding that no identifying information had been released.
More troubling was its finding with regard to emotional distress. According to a leading case on the subject, the tort of intentional infliction of emotional distress has four elements:
(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. The first element–outrageous conduct–serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff’s claim of severe emotional distress is genuine (see, Prosser, Insult and Outrage, 44 Cal L Rev, at 44-45; compare, Mitchell v Rochester Ry Co., 151 NY, at 110). In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law (see, Restatement [Second] of Torts § 46, comment h; Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct [“Social Decency”], 82 Colum L Rev 42, 42-43 ). 
Howell v. New York Post Co., 81 N.Y 2d 115, 121 (1993).
The Appellate Division found, in essence, that though the family may have been distressed, and the defendants disregarded a substantial probability of causing severe emotional distress, there was no extreme and outrageous conduct, which, according to the case law, is virtually impossible to ever show. Former U.S. Supreme Court Justice Potter Steward said, “I know it when I see it.” But you do not have to be a legal legend to see conduct that is extreme and outrageous here. Anyone can, and should, see it. Because if this type of tawdry, craven and profit-driven treatment of a bereaved family isn’t outrageous, I’d love to know what is.