Sep 19 2015

Jury Nullification In Medical Malpractice Cases Is Criminal

executionerMost lawyers who represent patients injured or killed by medical malpractice are huge supporters of the 7th Amendment. It provides as follows:

Seventh Amendment – Civil Trials. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The key phrase is “the right of trial by jury shall be preserved.” That right is vital to victims of medical malpractice for at least two reasons. First, medical malpractice plaintiffs deserve to have their cases heard in the fair and impartial manner that only a judge and jury can provide, before whom both sides get to present evidence in support of their cases. Second, medical malpractice plaintiffs deserve to have a jury decide the amount of compensation required to make a particular plaintiff whole, though many states have imposed limits, or “caps” on damages that can be awarded, which infringes on the jury’s function.

But there is a disturbing aspect of the jury trials to which medical malpractice victims are entitled, and hold dear: jury nullification, commonly defined as follows:

Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

The term has always been applied in the context of criminal cases, and has usually been associated with positive results and just outcomes. But this has not always been the case. For instance, racist southern juries have used nullification to clear defendants of any responsibility for hate crimes.

The problem for medical malpractice plaintiffs is that more and more, jurors have resorted to nullification to clear doctors and hospitals that have clearly committed malpractice, according to the evidence.  The reasons for this trend are many. Some jurors believe that they will somehow end up “paying for” a verdict against a health care provider.  They fear health insurance rates will go up and doctors will flee from their state–mostly unrealistic fears created and publicized by the tort reformers who exist to protect corporate profits over patient safety. Some see physicians as just a step down from gods, and cannot bring themselves to allow justice for a wronged patient if it means something negative happening to a medical professional. And despite the best efforts of plaintiff’s lawyers to discover these biases during jury selection, many such people end up on too many juries.  Moreover, the existence of these nullification trends are the worst-kept secret in the court system.  I can’t tell you how many times I’ve been in particular venues that are known for not being “friendly” to plaintiffs, where the judge that my case gets assigned to calls the lawyers up for a bench conference, and in an effort to force an early, low-value settlement, says, “Mr. Barovick, I understand you feel you have a strong case, but remember, this is ___________.”

Allow me to translate. The judge has just told me that jurors in her county don’t like plaintiffs or their lawyers, and are extremely reluctant to find against anyone that has an M.D after their name.  In other words, I have been told that I am going to lose the case if I insist on going through with the trial, so I might as well take the low offer being held out by the insurance company’s lawyer now, because something is better than nothing.

And usually, the judge is right.  So when you hear, year after year, that of the medical malpractice cases that go to trial, most of them are lost, you can factor jury nullification into the equation.  In these hard economic times, most plaintiff’s lawyers are too smart to waste their time and significant outlays of money on so-called “frivolous” cases. In addition to working hard to prepare their case for trial, they are also rolling the dice, and hoping for the best. Unfortunately, jury nullification often makes those efforts fruitless, and leaves clients who have been devastated by medical error wondering why justice has left them behind. That is criminal.

Aug 10 2015

It’s Deja Vu All Over Again For American Consumers

Sugary TreatsLast year,  we were warned. The sugar industry was unwilling to let sales drop, just because its product helped make people obese and diabetic. Posts like this became more frequent. It wasn’t just about the dangers of too much sugar–it was about how to distract the American consumer from those dangers. And where did the sugar lords go to learn how to carry out this deception? As Kristina Bravo, of TakePart found, they went to the most experienced, best financed, slickest dressers of wolves in sheeps’ clothing out there: Big Tobacco.  Cast doubt on the science with the most pliable experts that boatloads of money can buy. Give them their industry-serving talking points.  Make fun of the “worry warts” who took the warnings of danger seriously.

Ms. Bravo quotes a University of California professor of pediatrics, who has found that the “food industry knows that when they add [sugar] to food, you buy more. They don’t add it for any other reason. You can’t tell how much sugar has been added, and the food industry wants it that way.”  Sound familiar? It should. Just replace the word “sugar” with “nicotine,” and the fond memories should come flooding back.

Well, the warnings have turned out to be prescient. In today’s New York Times (August 10, 2015) is an article entitled, “Coca-Cola Funds Scientists Who Shift Blame for Obesity Away From Bad Diets.”  Coke has put together a team of scientists to preach the message: “To maintain a healthy weight, get more exercise and worry less about cutting calories.”   But many health experts warn that this message is misleading, that it works to deflect the role of Coke and its ilk in the spread of obesity and Type 2 diabetes, and that Coke is cynically trying to convince us that exercise can offset a poor, sugar-filled diet, even though most studies show that exercise “has only minimal impact on weight compared with what people consume.”  This is more sophisticated stuff than just making fun of former NYC Mayor Michael Bloomberg’s “nanny state” of regulated soft drinks.

Why is it important to be wary of Big Sugar’s effort to emulate Big Tobacco? Because like Big Tobacco, which has lost the trust of anyone who knows about its role in creating tort reform, Big Sugar has lots to hide, and lots at stake, financially, if it fails in that effort.  For example, something you are unlikely to hear about from Big Sugar is that academic scientists who publish in, say, The Journal of Diabetes Science and Technology, have found several troubling connections between the consumption of sugar and Alzheimer’s disease.  But why worry about that when you’ll be too confused to remember much of anything at all about your eating history?

May 29 2015

Marital Vows and Medical Malpractice

wedding-photographer-toronto-3I am not a religious officiant. I have never become a Universal Life Minister, even for a day to marry close friends. But I know this: when you married folks promised to stand by him or her “in sickness and in health,” there were unspoken limits in that phrase.  For instance, if you were a young man fresh out of law school, slinging files for a district attorney, Legal Aid, or  Corp. Counsel, because you knew you had to be a trial lawyer, you were in no way committing to prosecute a medical malpractice case on your young bride’s behalf, in case she was ever a victim of medical negligence, and in case you became a plaintiff’s medical malpractice lawyer.  All you had agreed to, realistically, was to remain patient enough not to run away to Vegas with that Twin Peaks waitress after your wife’s third week of intestinal flu, which also made her very bitchy.

Unfortunately, not every married lawyer experiences this kind of free thinking.  An attorney named Peter M. Zirbes is apparently one who felt constrained to represent his wife recently, in Suffolk County Supreme Court, when she lost vision in one eye as a result of alleged malpractice during a catheterization procedure.The trial is not over, but the defense attorneys moved to disqualify Mr. Zirbes from continuing to represent his wife, based on their belief that Mr. Zirbes had had discussions with the defendant doctors about the risks and benefits of the procedure performed on Mr. Zirbes’s wife, the plaintiff.  Therefore, they viewed him as a witness in the case.

Justice Joseph Farnetti denied defendants’ motion, and allowed Mr. Zirbes to continue to represent his wife.  But he did so only because the claim for which Mr. Zirbes’s observations might have been useful–that based on the lack of informed consent–was struck by the judge, obviating the need for any testimony from any person about risks and benefits of the procedure.  Chances are, however, that if you are the spouse of someone injured by medical malpractice, you will witness something that will make you a helpful witness on your spouse’s behalf.

So the lesson here is, please do not provide legal representation to your wife or husband. It’s a minefield for legal mishaps, and you never promised to do it at your wedding anyway.  And there is no question but that your emotions will deprive you of the calmness and objectivity you will need to do your best. But it really all goes back to that old chestnut about the perils of representing one’s self, often attributed to Abe Lincoln. It is something like–a lawyer who represents himself has a fool for a client.  Let’s expand it to say–a lawyer who represents him or herself, or his or her spouse, has a fool for a client.


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