May 24 2015

Dr. Oz Is Largely Bulletproof When It Comes To Malpractice

duck1Dr. Mehmet Oz is a New York-based surgeon and television personality.  He brings the complexities of medicine to the people, on shows like “Oprah,” where he tends to preach about products and processes that are modern and “natural.”  He is unconstrained by the boundaries of traditional medicine. Some would say he is unmoored from them.  As long as his adoring viewing public views him as an entertainer with a medical degree, no one gets hurt.  Unfortunately, some viewers have taken him, and his advice, literally, much to their sorrow.

One of the better-known debacles sprung from the weight-loss wonders Dr. Oz assured his public could be found in green coffee beans. It was exciting news, and would result in the loss of 16% of one’s body fat, whether the user exercised or not.  Except the claims were based on poor and unsubstantiated research, forcing Dr. Oz to ultimately acknowledge that more research needed to be performed. Pushing this untested, new-age snake oil likely resulted in nothing more harmful than dashed expectation and some wasted cash.

But then things heated up a bit, after Dr. Oz told his viewers that heating rice-filled socks in the microwave oven and placing them on your feet before bed would help them sleep.  One viewer, Frank Dietl, followed the suggestion, and wound up with third-degree burns on his feet, as is detailed in the article. The victim sued Dr. Oz over his injuries.

The victim lost. If fact, according to the Hollywood Reporter, Dr. Oz “won.”  Any New York medical malpractice lawyer could have predicted that for Mr. Dietl, before he and his attorney filed their lawsuit. Why? Because there can be no medical malpractice without there first being a doctor-patient relationship. Without that, the physician owes no duty of care to someone who decides to give that physician’s advice a whirl. For those of you so inclined, this case provides all the explanation you’ll ever need.  Suffice it to say that Dr. Oz, and one of his many fans out in TV land, never had a doctor-patient relationship.  And no other television viewer silly enough to take Dr. Oz’s medical advice seriously will be able to sue him for medical malpractice, either, for the same reason.

If you would like to establish a doctor-patient relationship with Dr. Oz, you will have to go see him in his office, sign all the required paperwork, speak to him face-to-face about your particular problems, allow him to examine you….well, you get the picture.  Of course, maybe you don’t want to establish that kind of relationship with a doctor who appears to be focused more on television and pushing boundaries, then on carefully treating his patients. But I’ll leave that up to you.

 

 

 

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May 20 2015

Americans Don’t Like The Caps On Damages They Know About.

Emergency workers look through the remains of a derailed Amtrak train in Philadelphia, PennsylvaniaIt often takes a tragedy, such as the Amtrak derailment in Philadelphia, to wake Americans up to the cold, hard realities behind arbitrarily-imposed limits on money damages.  Amtrak, a monopoly whose reputation for prior-century levels of safety precedes it, will never have to pay out more than $200 million dollars to victims of last week’s crash.  This will result in gross unfairness, since, as CBS reports in its article, “[e]xperts predict the liability from the crash, which left eight people dead and more than 200 injured, would exceed the cap.”

The cap, which is nice for Amtrak, but disastrous for those injured or killed due to Amtrak’s safety lapses, was created in 1997, and has never been adjusted upward for inflation.  CBS reports that had inflation been taken into account, the cap would be just under $300 million now.

Not only are victims of the derailment upset about the likelihood that they will never be fairly compensated for their injuries–some of which are life changing–but ordinary Americans are outraged, according to most news outlets.  That’s a good thing, because when citizens learn about unfair laws that protect large corporations at the expense of victims of negligence and their needs, sometimes things change.

Unfortunately, victims of medical malpractice are also limited by caps on their recoveries, in more than half of our states.  Forget, for a moment, that America’s largest bar association, the American Bar Association,  has always maintained that such caps do not do anything toward solving the so-called “medical malpractice crisis” that increases malpractice premiums for doctors.  The more insidious results of such caps are that: (a) they deprive victims of medical errors of their 7th Amendment right to a trial by jury, by removing from the jury its right to set appropriate damage amounts; and (b) they deprive severely injured victims of medical malpractice the compensation to which they are entitled, when dealing with pain and suffering for what will often be the remainder of their lives.

So, be outraged about the shabby way that the victims of Amtrak’s carelessness and disregard for safety are being treated.  But please take a moment to also consider the plight of the thousands of victims of medical negligence who will never get their health back, and more insultingly, will never be properly compensated for the carelessness of the doctor or hospital that caused their injury.

 

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Feb 10 2015

Mayor de Blasio Bitten By Tort-Reform Bug?

I was happy with Mayor Bill de Blasio for a while. He brought a youthful, refreshing blast of liberal-themed common sense into the Mayor’s office, and was so forthright that he hurt himself politically.  I’m referring to his acknowledgment that he had given his teenage son, Dante, “the talk,” warning him about the extra cautions that must be taken when the police approach you, if you appear to be a black young man, like Dante.

But today’s Wall Street Journal presents a different picture. In this article, which concerns the City’s annual budget, much of which focuses on law enforcement, we learn that the Mayor has set aside $3.2 million dollars for fighting “frivolous lawsuits against police officers.”

That’s an interesting statement, because law enforcement in NYC generally can certainly use help. We heard that from  police officers turned off by Pat Lynch’s demand that the Mayor apologize to the police in the aftermath of the Black Lives Matter protests. Many said, in essence, “Forget an apology–we need new protective vests, radio cars, and increased man power.”  Also, and unfortunately, NYC remains extraordinarily attractive to terrorists.  And of course, New Yorkers have this thing about gathering in large numbers for demonstrations.  So, yes, it is hard to deny that money should be budgeted for law enforcement here in New York.

But one thing that is not a significant problem, if it exists at all here, is “frivolous” lawsuits against police officers. Whether you want to call lawyers who bring such cases, as my firm does, greedy or sensible, the reality is that no local lawyer is going to take a meritless case against the NYPD, hoping that he will succeed in: (a) fooling the generally very competent Corporation Counsel lawyers who represent the City; (b) the streetwise jurors judging the evidence in the case; and (c) the generally experienced judge overseeing the litigation. Why not? Because we need to make a living, too.  And we are not going to invest our money, which we will never see again if we lose, in a case that is not strong enough to make it through the gauntlet of scrutiny it will receive.  All of which means that, while some incompetent jerk of a lawyer may decide to go ahead and waste his time and money on a suit he knows is garbage, he will not get anywhere with it. So the reality is, no one does it. There is no “jackpot justice” express just waiting for sleazy lawyers and their clients.  That’s a myth created by the tort reformers–those who do not want to be accountable in a court of law when their actions hurt or kill people. Think of the big auto companies, tobacco companies, Big Pharma–the godfathers of this cynical movement.

So what is a bright guy like Mayor de Blasio doing spouting this anti-consumer claptrap?  I’m going to go out on a limb here. I think he knows that “frivolous” lawsuits against the police are not a problem. Instead, that statement is part of his effort to repair his own relations with law enforcement, who may see the Mayor’s pledge as evidence that he is doing more to support his NYPD.  Perhaps the Mayor sees this PR ploy as a necessity after Pat Lynch’s hysterical, shrieked accusations about police blood on Mayor de Blasio’s hands.  But this empty promise about a non-existent problem is an insult to everyone else, and shows that Bill de Blasio has some unseemly political traits we were hoping he lacked.

 

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