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.
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.
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.