While conservatives, and the GOP in general, continue to clamor for tort “reform,” the reality is that medical malpractice payments are not only not “out of control”–they are at their lowest level since 1992, according to an analysis by Public Citizen.

So it was surprising, to say the least, that a long-time liberal and former Clinton White House lawyer would speak out in favor of tort “reform.”  Yet, as Ashby Jones, of the WSJ Law Blog  wrote, that is exactly what Lanny Davis has done.  But interestingly, Jones’ telephone interview with Davis reveals something disturbing.  For a lawyer of his sterling status (current partner at McDermott, Will & Emery), he is out of touch with the day-to-day business of personal injury law and its subset, medical malpractice.

He starts out fine, speaking of the competing interests of providing for victims of medical malpractice, on the one hand, and taking care of the doctors, who, in his opinion have been forced to practice “defensive medicine,” and are close to being “push[ed] over a precipice.” 

After briefly touching on the jury’s role in determining non-economic damages, he advised that “[t]he problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages…to deter bad behavior…How do we know that an out-of-whack penalty is going to deter the next doctor from being negligent?”

Well, speaking of being “out-of-whack,” Mr. Davis might be interested to know that punitive damages are rarely, if ever, awarded in medical malpractice cases.  It happens “only where the actions of the alleged tortfeasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or activated by evil or reprehensible motives.” Matter of Gravitt v. Newman, 114 A.D. 2d 1000 (2d Dept. 1985).  I think we can all agree, and I include non-lawyers here, that this type of conduct is not seen in the usual medical malpractice case.  And therefore, when Mr. Davis refers to such damages as being “the problem,” he immediately and permanently loses credibility.  “The problem,” instead, is that people like Mr. Davis feel free to speak on issues about which they are not knowledgeable.

He goes on to make certain that we know, and won’t forget, the extent to which he is a dilletante in this arena.  He “really believe[s] that some plaintiffs’ lawyers misuse the courts with frivolous lawsuits…There’s no cost to filing a frivolous lawsuit. And there’s no reason not to do it.  The bogus lawsuits that [he's] seen–the false claims cases, the securities fraud cases…[have] proven to be enormously lucrative…you can get a settlement and retire forever.”

Really?  And here I thought we were talking about medical malpractice lawsuits.  But, no need to stay on subject.  And as everyone knows, any lawyer can file a “bogus” case, and hit the jackpot, because the insurance company and its lawyers will not scrutinize the claim, will not conduct discovery, and will definitely not try the case.  No, according to Mr. Davis, the insurance company will simply throw money at you.   And naturally, all of that money the trial lawyers get from such bogus claims is pure profit, because when things are as Mr. Davis says they are, there is no need to invest tens of thousands of dollars of the trial lawyer’s money into obtaining roomfuls of medical records, conducting days of depositions, and retaining sometimes multiple expert medical witnesses.

I, for one, am certainly glad that Mr. Davis took time to weigh in on tort “reform,” because it reaffirms what most of us in the trenches know quite well.  Tort “reformers” are generally out of touch with the type of law involved and the realities of day-to-day practice, and have no appreciation for what it’s like to be the victim of medical negligence.

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You know, doctors don’t like to admit it, but even they turn to us trial lawyers now and then, as they have this week in California.  The reason? The Governator, a/k/a Arnold Schwarzenegger, exempted state hospitals from the requirement that an anesthesiologist be present when a nurse anesthetist administers anesthesia to a patient, without consulting the state’s medical board and board of nursing.  Pursuant to Medicare rules, he was requirerd to do so.

California’s medical societies have spun this as a patient safety issue, i.e., the supervision of an actual doctor prevents mistakes and injuries, and can better correct them if and when they occur.  But it is hard to ignore the fact that if doctors must be present in every case in which a trained, certified nurse anesthetist administers anesthesia, those doctors are going to make more money.

So who did the doctors call when they felt that their rights were being stomped on?  That’s right. Trial lawyers.  With their help, they have filed suit against Gov. Schwarzenegger.  Which is a little odd, since most of the time, when doctors or their medical societies use “trial lawyer” in a sentence, it is coupled with words like “greedy,” “evil,”  “opportunisitic,” and the like.

Of course, the reality is that trial lawyers may have saved your life, particularly if you were lusting after that cute little Ford Pinto some years back.  And even now, if you think Toyota is taking the action it is with regard to accelerator pedals on its own, you are probably in another galaxy.  It was trial lawyers, and the legitimate threat of lawsuits that would cost the company big money that was the ultimate motivator.

Perhaps if people had a natural tendency to take action to right wrongs they become aware of, we would not need us trial lawyers.  But history teaches us otherwise.  In yesterday’s NY Times, we learned some good news: that radiologists were finally taking the dangers of radiation therapy seriously by forming a safety task force and a central data base of errors that harmed patients.  But the disappointing news was this.  Such a step would never have been taken if the NY Times had not written two recent articles on the dangers of such therapy, and the lack of any safety systems that might help regulate such treatment.  You don’t think the radiologists envisioned a law suit or two, do you?

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I don’t have to remind you that it’s not nice to have sex with your partner while experiencing a flare up of your genital herpes–especially when you stay silent on the subject in the darkness of your love romp.

But for any of you that fail to abide by such niceties, there is now case law from the Appellate Division, First Dept., that may persuade you to change your ways.  In Felter v. Feigenbaum, NY Slip Op 00012 (1st Dept. 2010), plaintiff sued defendant for negligent transmittal of genital herpes simplex II.  Following discovery-related motion practice, the First Dept. held that defendant must submit to a blood test that would be determinative of whether or not he has the virus. 

Though defendant attempted to evade the test by claiming that undergoing it, and delivering the results to plaintiff, would violate the physician-patient privilege, the Court dismissed such reasoning out of hand, since the test “was ordered in conjunction with the litigation.”

Moreover, the Court noted that even if the privilege were to apply, defendant waived it when he asserted the affirmative defense that he was asymptomatic.

But you didn’t need this decision to get you to do the right thing, right?

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From Colorado, and particularly the Durango Herald, we get to see firsthand one of the truly significant problems with tort “reform.”  Its supporters are not intelligent.  The dead giveaway comes when the writer expresses his outrage that doctors are now forced to practice defensive medicine, when they should be practicing “offensive” medicine.

Well, you see, that “offensive” medicine is exactly what too many doctors have been practicing for too many years, which is why tort “reform,” which shields doctors and hospitals from accountability for their offenses to patients, is not a wise idea.  It is “offensive” when a surgeon operates at the wrong site because he was too busy to perform a preoperative time out to verify the spot with the surgical team.  It is “offensive” when that misstep seriously injures or kills the same patient. And it is especially “offensive” when tort “reform” imposes arbitrary limits on the amount of awards to such victims of medical malpractice at trial, often preventing realistic compensation, and always robbing the jury of its power and right to assess each case on its own merits, and act accordingly.

Meanwhile, hospitals continue to value profit over patient welfare, and act–or fail to act–accordingly.  The Pop Tort has a heartbreaking round up of stories on the failure of New Orleans-area hospitals to outfit their facilities properly with generators in anticipation of flooding.  Along came Katrina, and patients on life-support died slow, agonizing deaths when the power failed, and could not be replicated by other sources.  Offensive?  As one of the least intelligent of the tort “reformers” likes to say, “You betcha!!

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Hopefully you have all seen the steering wheel desk for sale at Amazon.com.  The important thing is the “comments” section.  Many are hysterically funny.  And they should be, since they are in response to an idea that is ridiculous and frightening all at the same time.

Interestingly, a steering wheel desk has received the recent attention of the Appellate Division, Third Dept., after a driver who “may” have been using one crashed into and injured two passengers in another car.  According to today’s New York Law Journal, such a desk served as the resting place for a laptop computer, the screen of which was flipped up and “turned on, indicating recent use,” according to Justice Anthony T. Kane.

As a result of this evidence, obtained in large part by the tow truck driver who responded to the scene of the accident, the Third Dept. has ordered that the cell phone records ( there were 3 in the car, along with the laptop, at the time of the accident) as well as the wireless air card from the laptop, be subject to disclosure in the lawsuits filed by the injured passengers, who contend that the driver of the vehicle that hit them may have been distracted by his electronic communications devices.

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Ahhhh! Winter! That magical time when fresh snow makes everything look clean for a moment, we’re all taken back to childhood memories of carefree snow days , and…oh, yeah, the time of year when people fall on icy surfaces and get hurt.  As we are approaching that season, it is fitting that the Appellate Division, Second Dept. issued a new decision involving just such an accident, which happened in the neighborhood nextdoor to mine.  In Groninger v. Village of Mamaroneck, NY Slip Op 08178 (2d Dept. 2009), decided November 10, 2009, plaintiff slipped, fell and injured herself on ice in one of the Village’s municipal parking lots. When she sued the Village, claiming that it had negligently failed to address the icy condition responsible for her accident, the Village move for summary judgment dismissal, based on the lack of prior written notice mandated by CPLR 9804 and the Village Law.

In affirming the lower court’s granting of the Village’s motion to dismiss, the Second Dept. found that the prior written notice requirement applied to municipal parking lots, and that plaintiff failed to show the applicability of either of two exceptions to the written notice requirement: (1) that the Village affirmatively created the condition through negligence that immediately resulted in danger; or (2) that a special use resulted in a special benefit to the Village.

Because she could not defeat the prior written notice requirement, Ms. Groninger’s case was dismissed.

The plaintiff fared better in Bastien v. New York City Transit Authority, Slip Op 08167 (2d Dept. 2009), also decided November 10, 2009.  He was beaten and stabbed while riding a City bus, and later brought a negligence action against the NYCTA and the driver, who did nothing to help plaintiff during the assault, failing to even call for help.  Defendants moved for summary judgment dismissal, establishing their prima facie entitlement to judgment as a matter of law, by showing that there was no special relationship to plaintiff.  However, only a “triable issue of fact” is needed to defeat such a motion, and plaintiff had an effective one in his quiver.  He argued that the bus operator’s failure to call for emergency assistance in a timely manner from his position of safety was a proximate cause of his injuries.  The lower court found that plaintiff’s argument did indeed raise a triable issue of fact, and noted that if plaintiff were to prove such a scenario, he could recover for his injuries under an exception to the special relationship requirement.

The lower court properly denied the defendants’ summary judgment motion, as the Second Dept. affirmed, and Mr. Bastien will be able to take his case to trial.

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