Jan 14 2015

The Foreseeability of Accidental Shootings

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?

 

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Jan 3 2015

How Is Profiting From Non-Consensual TV Coverage of a Patient’s Death Not “Outrageous” Enough?

Andrew Barovick, http://www.thenewyorkmedicalmalpracticelawblog.com, discusses "NY Med" on ABC. 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 [1982]). [122]

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.

Dec 3 2014

Texas Doctors Send a Posse Out After Those No Good, Thievin’ Dentists!

Would you trust a dentist to diagnose your sleep disorder?  If you said “no,” the Texas Medical Association is on your side, and is taking its concerns to court.  Why, you ask? Because diagnosing and treating sleep disorders is outside the realm and qualifications of dentists–at least it is if you are a physician and member of the Texas Medical Association.

But not everyone sees the issue in such black and white terms.  The fact is that dentists do treat at least some sleep disorders, particularly when the treatment calls for the patient’s use of an appliance worn inside the mouth. And the American Academy of Dental Sleep Medicine is made of dentists devoted to the specialty.  When I was treated by NYC-based dentist Michael Gelb, DDS, for TMJ, I learned that not only does he specialize in treating sleep apnea--he revolutionized its treatment with some of his own inventions.

So why would a medical association, the members of which likely swore an oath to support tort “reform” and never resort to something as sordid as the courtroom, sue to prevent dentists devoted to certain sleep disorders from treating them? I mean, this is Texas, bastion of large-scale tort-reform legislation by that celebrated visionary, Gov. Rick Perry. Might it be that these Texas doctors are concerned about the thickness of their wallets, and simply don’t want to let any business slip away?  I’m just asking, because of course, I have no opinion. Really.

 

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