Professor Theodore Eisenberg of Cornell Law School has completed a study on the empirical effects of the so-called tort “reform” movement in the U.S.  This was brought to my attention by the TortsProfBlog, which features the article’s abstract.  Among Eisenberg’s sober findings: 1) punitive damages were never out of control and in need of reform; 2) proponents of tort “reform” have rarely sought to address the ever present problem of poor quality care; 3) caps on non-economic damages have decreased costs, but have also likely decreased pressure on hospitals to improve poor care; and 4) there is no consistent evidence that tort “reform” has had any impact on on physician behavior or supply.

My favorite part of the abstract, though, is it’s superbly understated last sentence. “While one cannot rule out specific statutory reforms as achieving more favorable results for defendants, the national scope of plaintiffs’ declining success supports an explanation based on the social construction of knowledge by well-funded industry groups.”  Let me take a moment to translate this  into more direct terms: The industry groups that founded, funded and perpetuated  tort “reform,” such as tobacco giant Phillip Morris, have created, or more accurately, purchased,  their own version of “knowledge” that unsuspecting members of the public have swallowed in increasing numbers. And the end result is that average Americans associate plaintiffs, and their laywers, with hucksterism, while those who injure, kill, poison and pollute us remain barely accountable.

In the products liability arena, AboutLawsuits.com  reports that health officials in the U.K. are expressing concerns about the DePuy MITCH/Stryker Accolade hip replacement.  These are metal-on-metal devices, and, according to the the post, the medical device alert issued in the U.K. added to growing calls for an industry-wide recall.

And now, a word about misbehaving lawyers.  Most lawyers–that is, those who have intact brain function–know that you must tread very carefully if you are going to invest in one of your clients.  This ABA monograph, at page 27, gives a good idea of the kinds of conflict of interest pitfalls that exist for such lawyers.  Apparently, some Virginia lawyers failed to appreciate the message, so that when they were sued for legal malpractice, their professional liability carrier declined to provide them with a defense–a story well told in the VLW Blog.  The lesson here is, it is one thing to invest in your client, but quite another to exploit that investment for personal gain.

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Every now and then, I have to blog about something other than tort law, and this is one of those times.  But I can remain within the malpractice theme, because so much of recent 1st Amendment law has been so wrong-headed that calling it careless, i.e., negligent, would be generous.  It appears that people who are otherwise intelligent, at least in the legal sense, lose most cognitive functionality the moment they encounter internet-related 1st Amendment issues.

For instance, we on the internet are now governed by Section 230 of the Communications Decency Act.  Yet this act grants providers of information over the internet free reign to spout the most indecent streams of written sewage imaginable.  Why? So as not to limit or “chill” free speech over the internet.  You see, news sites, bloggers and the like did not want to be saddled with potential liability for merely being the publishing source of say, defamatory screeds.  After all, why should they take any responsibility, or exercise any judgment, concerning what pieces to publish?  That takes time away from selling advertising.  Now, they can dump any drivel, regardless of its worth, on us, without fear of criminal liabilty, or civil liability arising from intellectual property laws.  If the internet is a theater, they can yell “Fire” freely within it, with no consequences.

That is why I, for one, am excited to report that Sen. Joe Lieberman of CT is taking steps to turn things around.  According to DailyKos, which picked up this tidbit on a 1st Amendment website , McIntyre v. Ohio.com, Lieberman has submitted proposed legislation that would modify Section 230 of the Communications Decency Act.  The changes would return responsiblity for the conduct of anonymous blog commenters to the writer/publisher of the blog, who would be stripped of the immunity they now enjoy. As a result, anonymous terrorists, Holocaust-deniers and general psychopaths lacking the fortitude to sign their names to their overblown, under-considered comments may have their soap boxes kicked out from underneath them. That is a step toward decency, and away from 1st Amendment malpractice.

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A friend and fellow lawyer just asked me to look at a potential ophthalmology-related medical malpractice case. It was a hefty-looking file, and I had delayed starting my analysis for fear of how long it would take.
This morning, I had time. I unwrapped the FedEx envelope, pulled out the records and began reading. And then stopped. Once I saw that the patient was 85 years old, I knew that any further reading would be a waste of time. I did not need to know whether there was evidence of medical malpractice or not, and I’m jaded enough by now to not even bother to find out, once I see that I can’t take the case.
Why did I have this reaction? Because tort law, at least in New York, undervalues the elderly.
Even if the opthalmologist who treated her committed obvious, easily provable malpractice, no plaintiff’s attorney in his/her right mind is going to take this case, because it is a losing propostion for everyone. The law does not value the decrease in vision of an elderly person under 99% of circumstances. Usually, such a person is retired, so their income has not been reduced. Usually, such a person is not providing services to others that can no longer be performed. Naturally, such a person has a drastically reduced life expectancy, so that the damages she might win for, say, future pain and suffering, and future medical care, will not amount to much. And any defense attorney worth his/her salt will point out the many other ailments that a person of this age is bound be saddled with anyway, to minimize the affects of an injury to an eye.
Then consider that to properly work up such a case, a medical malpractice attorney must purchase reams of medical records, consult with and pay a medical expert, and sometimes two or three, conduct and pay for depositions, invest weeks of his/her own time to the detriment of other cases conducting medical and sometimes legal research, meeting with the client, and often the client’s healthcare providers.
Your investment of time and money will dig you into a deeper financial hole, and the client may be dead by the time any award is obtained for her, given the current pace of cases through our court system.
OK. Done ranting. Carry on.

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Please join me at my new new site as I take a peek at what our Chief Administrative Judge will bring to the table when she becomes Coordinating Judge of NY’s Medical Malpractice Program.

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Come on over to the new blawg to see my thoughts on the latest interpretation of the Arons v. Jutkowitz decision.

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A new blog post, over at the new blog site.

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