Speaking of Medical Malpractice Insurance is Hazardous to Your Trial’s Health
In a case decided October 13th, Grogan v. Nizam, NY Slip Op 07375 (2d Dept. 2009), the Appellate Division, Second Department, issued a decision that underestimates the sophistication of modern jurors, and that continues to legitimize a silly precedent. The decision is short, and worth reading.
The essential holding is that if the jury finds out that the defendant doctor is insured, that defendant has been prejudiced to the extent that the court has the discretion to declare a mistrial. The sole mention of the concept of insurance occurred when plaintiff’s counsel asked his OB/GYN expert about his involvement in risk management work. The expert responded, “I’m a Risk Management Consultant to the Princeton Insurance Company, which is a professional liability carrier, in Obstetrics and Gynecology.”
Plaintiff’s expert did not conclude his statement by standing up, pointing to the defendant OB/GYN, and stating “By the way, see that guy sitting next to the defense lawyer? Sure as the sun will rise tomorrow, he’s insured by a professional liability carrier!”
As Tom Valet, who handled the appeal for the plaintiffs (appellant-respondents), told me, “nobody implied that the defendant had insurance or that a verdict would be covered by insurance.” In other words, there was no prejudice to the defendant.
Exactly what types of “prejudice” are the courts worried about? The Grogan Court traveled far back in time, to 1911, to support itself with Simpson v. Foundation Co., 201 N.Y. 479 (1911), a Court of Appeals case that warned that a jury’s knowledge that a defendant in a negligence case is insured may induce that jury to give a larger-than-reasonable verdict. On the other hand, the same appellate body (the Second Department) felt, as of 1977, that if jurors knew that an insurance company would be paying the judgment, they may ultimately come to believe that they, Mr. and Mrs. John Q. Public, would be providing the primary funding. And therefore, such jurors would unreasonably award less.
But times have changed, and the citizens that comprise the jury pool are more sophisticated. Many, if not most people are aware of the role that insurance companies play in our civil justice system. To assume that the mere mention of the broad concept of professional liability insurance is enough to warrant a mistrial is unrealistic, and frankly underestimates the intelligence and sophistication of the citizens of New York State. Moreover, such an inflexible adherence to precedent has resulted in the high cost of having to re-try a complex medical malpractice case, and has delayed justice for the plaintiffs.
What are the lessons here? As Tom Valet put it: (a) caution your experts to avoid uttering the word “insurance” at trial; and (b) if they mention it anyway, make sure a proper curative instruction is timely given by the trial judge.
But if you end up arguing before an appellate panel after a mistrial has been granted, my recommended argument is as follows: “C’mon people! Get real! Welcome to 2009!”
First Dept. Allows Room for Unpleasant Surprise
The Appellate Division, First Dept., has issued a decision saying that it’s OK to change experts during the trial, as long as your CPLR 3101(d) exchange put your opponent on fair notice of the substance of the expert’s testimony, and the substituted expert conforms to what was promised when he testifies. In S & W Home Improvement Co. v. La Casita II H.D.F.C., NY Slip Op 07332 (1st Dept. 2009), the Court also relied on the inclusion within the expert exchange of notification that another representative from the same company as the named expert might be called.
This was a mechanic’s lien case, but what the First Dept. did here would obviously apply to any case involving expert disclosure pursuant to CPLR 3101(d). Therefore, medical malpractice and personal injury cases could arguably be affected by this decision, and I think it is a dangerous one. It is nice that the new expert stayed within the boundaries of the noticed subject matter. It is also nice that the expert exchange at issue happened to mention that someone else might be called at trial (as many such documents note). But if you are the lawyer on the receiving end of this last-minute switch, you’ve been placed at a disadvantage. You do not have time to research the new witness by obtaining prior transcripts or educating yourself about his history as an expert witness. You are thus deprived of the opportunity to develop key impeachment material that may affect the outcome of the case. You are, in a word, prejudiced. And trials are surprising enough when you are prepared to the gills.
Trial Lawyers Are Good.Their FL Website is Crass. A Dr. is a Criminal.
The Wall Street Journal’s Law Blog shines a light on something that is more than just medical malpractice. It is criminal enterprise. This story concerns a physician and snake-oil saleswoman, all in the same person, who took advantage of the desperation of patients with advanced cancer by selling them an expensive “herbal remedy” that she surely knew would work only to line her pockets with cash.
The WSJ Law Blog also reports on the big dust up in south Florida over a new website called “whocanisue.com.” Many find it crass and distasteful, perhaps because of the ads on billboards and bus shelters promoting it, which feature a lawyer slipping on a banana peel. The name of the site does not exactly inspire love and respect, either. And, according to WSJ and a local Florida paper referenced in its post, some of the people most offended by the site are other Florida lawyers who feel that it degrades the entire profession.
One of the issues addressed in the WSJ post is that the site is not subject to attorney discipline, since it is only a “referral” service. And that’s a valid point. But my concern is, given how successful the site is in drawing in business, according to the press about it, shouldn’t there be some vetting of the firms that advertise on the site? For instance, checking that the attorney: is licensed in the state; has not been the subject of repeated disciplinary action by the state bar; does not have a history of misrepresenting his services to potential clients (i.e., the lawyer promises his individual attention to your case, but hands it off for a percentage of the anticipated fee as soon as he signs you up); and actually has experience in the specialty area he claims expertise in.
Getting back to the more ennobling aspects of lawyering, my Twitter friend, Bill Marler (@bmarler if you want to follow him, which I recommend) delivered shirts emblazoned with the phrase “Put a Trial Lawyer Out of Business” to the Senate earlier this week in an effort to call attention to the need for better food safety regulations, according to the Mass Tort Litigation Blog. Bill was prominently featured in last week’s New York Times article on the devestating effects of E. coli on a children’s dance instructor who ate contaminated hamburger meat. She is now paralyzed from the waist down as a result.
And yes, you can thank a “trial lawyer” like Bill Marler for forcing the hamburger manufacturers to do what they should have been doing all along with regard to food safety, since such arcane concepts as “caring enough not to poison those who eat your product” seem so elusive to such companies, until they stand to lose profits to a lawsuit.