I’m a trial lawyer for injured people and businesses at The Beasley Firm, founded in 1958. The Firm’s legacy speaks for itself; the law school at Temple University was re-named the Beasley School of Law in honor of the Firm’s founder, James E. Beasley. We’re listed in [...]
The NCAA is a magnet for litigation these days; if they’re not being hounded with dubious claims by Pennsylvania Governor Tom Corbett, they’re being challenged for a variety of meritorious antitrust claims, like on their rules limiting athletic scholarships and their licensing agreements for videogames. The cases raise substantial issues about the extent to which an organization can wholly dominate — and profit from — the field of college athletics free from legal accountability.
The Jack Hill, Jr., lawsuit filed last week in Pennsylvania state court, however, raises an issue of far greater importance: whether the NCAA has a duty to protect the health and well-being of student-athletes. Hill was a senior at Slippery Rock University trying to make the basketball team. For years, various medical professionals and health educators have discouraged coaches from using exercise as a form of punishment — in 2009, for example, the National Association of Sport and Physical Education released a position statement arguing that “Administering … physical activity as a form of punishment and/or behavior management is an inappropriate practice” — but Slippery Rock University’s basketball team apparently eschews modern sports medicine for medieval torture methods, and so was, according to the complaint, going through a third practice of the day, a late-night “insanity workout … intended to serve as a punishment for the entire team.”
Problem was, Hill, who was trying to make the team as a walk-on, had undiagnosed sickle-cell trait. He collapsed near the end of practice. According to the complaint, CPR was performed briefly, but stopped before emergency personnel arrived (which is wrong, you should keep doing CPR aggressively until help arrives), and an automated external defibrillator was brought but nobody knew how to use it. He was declared dead shortly after arriving at the hospital. The Pittsburgh Post-Gazette report that his autopsy showed his death was related to sickle cell trait. (I’m curious for more details on that point; I assume the cause of death was acute exertional rhabdomyolysis secondary to sickle cell trait.)
Hill’s death was, shockingly, no surprise at all. As Scientific American reported last month, “Between 2004 and 2008 there were 273 athlete deaths in the NCAA, five of which occurred among players with sickle-cell trait.” In 2007, the National Athletic Trainers’ Association noted that, apart from trauma, the four top killers of high school and college athletes were “cardiovascular conditions, hyperthermia (heatstroke), acute rhabdomyolysis tied to sickle cell trait, and asthma,” and that sickle cell trait deaths were among the easiest to prevent, because “simple precautions seem to suffice.”
It’s a killer, but many coaches, schools, and the NCAA didn’t care at all until the Lloyd lawsuit back in 2008. Per USA Today, “Dale Lloyd II was a freshman cornerback at Rice in September 2006 when he fell unconscious on the practice field after sprinting 100 yards for the 16th consecutive time. … 21% of universities had decided to test for the trait by 2006. Rice University was not among them, and the NCAA didn’t recommend it.” For all the noise made by insurance companies and other billion-dollar industries that profit from recklessness, lawsuits can and do make a difference, and the Lloyd lawsuit both substantially raised the profile of the dangers to athletes with sickle cell trait and, in the settlement, the plaintiffs demanded the NCAA do more to prevent deaths like Lloyd’s by implementing a mandate requiring players be screened for the trait or sign a waiver turning down the screening.
For the 2010 season, the NCAA agreed to do that sort of screening — but only for Division I athletes. Slippery Rock is a Division II school, and one that, as of 2011, still used the very sort of dangerous and pointless torture sessions rejected by every competent sports medicine organization.
Hence, Hill’s parents have sued both Slippery Rock, for its antiquated and reckless training methods, and the NCAA, for not requiring screening of Division II athletes as well. Continue reading
I like Consumer Reports, and, though I wish they would take a more active stance in supporting consumers’ legal rights, I think they’ve done a fine service for American consumers over the past 70-odd years with their independent reviews.
However, I think their hospital ratings system is doing more harm than good. I opened up the latest issue, with ratings for most states — including Pennsylvania and New Jersey — and was surprised to see a variety of small ambulatory surgery centers and smaller hospitals in exurbs and rural areas trouncing the world-renown teaching and research hospitals in Philadelphia.
I don’t think prestige makes anyone or any entity above criticism. Moreover, as a malpractice lawyer, I’m usually the first one to ring the alarm bells about the horrifying problems endemic to the medical profession, and I certainly don’t just take a doctor’s or a hospital’s word for the quality of their care. But when you review and litigate as many cases as we do, you get to know the medical community quite well, and something just plain didn’t sound right about the rankings, which seemed to be reversed. Few malpractice lawyers around here would agree that patients should choose some of the highest ranked hospitals on the list (many of which are simply surgical centers with 30 or fewer beds) over some of Consumer Reports’ lower ranked hospitals, like Pennsylvania Hospital and Jefferson Hospital, which received the lowest possible rating (a solid black blob), or Einstein and Hahnemann, which received the second lowest possible rating (a half-black blob).
I wasn’t the only one surprised; up in Boston, Massachusetts, for example, Carney Hospital had the highest rating, while Brigham and Women’s and Mass General — both world-renown — had the lowest. WBUR looked into the disparity for surgical ratings, and talked with Mass General’s Vice President for Quality and Safety. They pointed out a variety of problems with the ratings, including how the ratings don’t take into account a variety of important factors, including:
- how sick the patient was when he or she came in for surgery or the severity of their disease
- how many other conditions the patient may have
- how many complications actually occurred
Indeed, reviewing the 44-page outline of how Consumer Reports rates hospitals reveals, first, that they’re not that different from the Hospital Safety Score, and, second, that their analysis is subject to numerous limitations. In assessing post-surgical complications, for example, the bulk of the score comes from the presence of Accidental Puncture or Laceration (30%), Pressure Ulcers (24%), Postoperative Pulmonary Embolism or Deep Vein Thrombosis (24%), and Central Venous Catheter related bloodstream infection (13%).
It’s not crazy to attempt to measure hospitals this way. All of these are part of the Agency for Healthcare Research and Quality’s National Quality Measures Clearinghouse. But two problems leap out at me. Continue reading
The Family and Medical Leave Act (FMLA) turned 20 this year, with enforcement first taking effect on August 5, 1993. Sure, the FMLA is a “burden” on employers in the same way that weekends, lunch breaks, and the minimum wage are a “burden,” but it’s hard to argue with the basic precept that employees who work 1,250 hours a year at a company with the resources to handle employees calling out shouldn’t be entitled to a little bit of unpaid time off when they’re too sick to work or when they need to be good spouses, children, and parents by caring for their immediate family members.
But there’s always someone to complain about people doing the right thing instead of grinding themselves down making money for a big company. Thus, there’s been no shortage of complaints by begrumpled management-side lawyers about the “Friday-Monday Leave Act.” The Department of Labor looked into these concerns and found them mostly unfounded — few employees ever take out intermittent leave for self-care conditions like chronic pain, and few business can credibly report a loss in productivity or profitability — but that hasn’t stopped calls to weaken the FMLA.
I don’t tend to litigate FMLA cases, but I most certainly need Continuing Legal Education credits to remain a licensed attorney, so last week I went to a seminar on the FMLA hosted by a bunch of defense lawyers and, the lone employee-side lawyer, Ari Karpf of Karpf & Karpf out in Bensalem. What struck me most was how many employers just plain didn’t get it, and didn’t seem to recognize when they were doing something prohibited by the FMLA. So, as part of my real continuing legal education — i.e., reading up on new cases and discussing the law with other attorneys, instead of just sitting through a PowerPoint in a subzero, windowless conference room — I thought I’d do a brief survey of some recent FMLA cases to see how well businesses are doing in actually complying with the law. Continue reading
Can you guess the best-selling class of drugs? It may be that a fifth of Americans suffer gastroesophageal reflux disease at least once a week, over 30% have hypertension, and over a third of U.S. adults have high LDL cholesterol, but the best-selling class of drugs isn’t proton-pump inhibitors for reflux, or angiotensin II receptor antagonists for blood pressure, or statins. It’s anti-psychotics.
- Use as an add-on treatment to an antidepressant for adults with Major Depressive Disorder who have had an inadequate response to antidepressant therapy
- Treatment of manic or mixed episodes associated with Bipolar I Disorder in adults and in pediatric patients 10 to 17 years of age
- Treatment of Schizophrenia in adults and in adolescents 13 to 17 years of age
- Treatment of irritability associated with Autistic Disorder in pediatric patients 6 to 17 years of age
It’s commonplace for people to refer to themselves or others as “depressed” or “bipolar,” but that’s a far cry from a diagnosis. The NIH has a handy page with the statistics on mental illness. At the most generous estimate, 5-8% of the adult population can be diagnosed with Major Depressive Disorder, and Abilify isn’t even indicated for them — it’s indicated only for those who haven’t responded to typical antidepressants, which is half or less. Bipolar Disorder affects 2.6% of the popular, but Bipolar I, the more severe version defined by a week or more of mania or mania so severe it requires hospitalization, is only a small fraction of that. Schizophrenia affects 1% of the population. Finally, depending on your definition, between 0.8% and 1.2% of children have autism.
Adding all of those up gets us to 5% or so of the population that could even qualify for Abilify, less than a quarter of the people with GERD, hypertension, or high cholesterol. So who is taking all of this Abilify, and why? As the Wall Street Journal reported last week, “Federal health officials have launched a probe into the use of antipsychotic drugs on children in the Medicaid system, amid concern that the medications are being prescribed too often to treat behavioral problems in the very young.” The quote Mark Duggan, a health-policy expert at the University of Pennsylvania’s Wharton School, saying that more than 70% of the cost of the five leading antipsychotics was paid for by Medicaid and other government programs.
While the public school system in many urban areas is in collapse — a problem we feel quite acutely here in Philadelphia — and there’s still no interest in putting tax dollars into early childhood education or after-school problems, and even the upper-middle-class can’t afford childcare so both parents can work, it seems Medicaid has $3.6 billion to spend on antipsychotic medications like Abilify, Zyprexa, Geodon, and Seroquel. (That’s just as of 2008 — the number is likely double or higher now given how rapidly prescriptions have grown.)
I’ve written extensively about medical malpractice myths, including posts about defensive medicine, the realities of malpractice litigation (in which it’s more likely that a negligent doctor will evade responsibility than it is that an undeserving patient will be compensated), and the tricks played to deny injured patients their legal rights, like concealing evidence and intimidating expert witnesses. Just last month I wrote about the hard data on malpractice lawsuits in Pennsylvania.
Why so much focus on malpractice law? Because it seems to be the area of plaintiffs’ litigation most heavily shrouded with myths and misunderstandings. Just last month, one of the New York Times’ bloggers, herself a medical doctor, began a column on the “disturbing” trend of doctors breaking the white coat code of silence by criticizing one another. She gave this example: a physician friend had been recently named in a lawsuit in which, they claim, “there were no discernible errors in the care she provided,” solely because a subsequent physician criticized the first physician, saying they were “shocked” by the care provided and that the patient “could have died.”
I could go on at length about how absurd that factual scenario was — a patient can’t file, much less win, a malpractice lawsuit with “no discernible error;” rather, the patient’s lawyer needs to prove malpractice by way of expert physician testimony — but there’s no need to do that. Just re-read that last paragraph: if the doctor-blogger and her friend really wanted to find the “discernible error,” they could have merely asked the second doctor why he or she was “shocked.”
Such is the low level of debate in the malpractice liability arena. A columnist or a doctor says something dumb, like asserting there’s “no discernible errors in the care” that the next doctor finds “shocking,” and patient advocates and plaintiff’s lawyers scramble to explain how the nitty-gritty of certificates of merits, damage caps, jury instructions, and the like make it impossible for cases to prevail unless they are “slam-dunk” cases with only the very worst outcomes for the patients.
Three stories from last week highlight many of the same issues I keep coming back to on this blog: Continue reading
Over at The New York Times, business columnist Joe Nocera published a jumbled rant complaining that plaintiff’s lawyers in the BP spill litigation have done too well in helping the spill victims recover compensation for their losses.
There’s a lot of nonsense to unpack here, so let’s start with his only concrete factual conclusion: that there’s no need for litigation over the Gulf Coast oil spill outside of the BP claims process. Nocera claims:
BP is the best example I’ve ever seen of a company that actually tried to find a better way [to resolve mass torts]. Immediately after the spill, it set up a claims process to get money into victims’ hands quickly, without having to file a lawsuit. Though that process had its critics, it worked. Of the $11 billion BP has paid out in claims, $6.3 billion was paid through that process.
The key part in there is the assertion that the BP claims process “worked.” For whom? For BP? The claims process obviously didn’t work for the victims who had to go outside the process to get a fair offer — indeed, as revealed by Nocera’s own numbers, that work outside of the claims process produced an additional $4.7 billion in victim’s compensation. (Perhaps I should double-check those numbers: Nocera has proven himself unable to count either barrels of oil or corporate profits.)
So what’s Nocera’s real concern? He says:
One of the things I find particularly offensive is that the settlement includes criteria that virtually ensure that businesses unharmed by the oil spill will get compensation. … [One of the plaintiff’s lawyers] said that the Oil Pollution Act of 1990 was aimed at helping people who have been harmed “indirectly.”
(Sneer quotes in original.) Basically, Nocera blames plaintiff’s lawyers for doing what they are professionally obligated to do, i.e., secure full and fair compensation for their clients. Nocera’s real argument is that he thinks “indirect” damage caused by the spill is unworthy of compensation, and he wants to obfuscate that argument by blaming the lawyers instead of blaming the oil spill victims, the real target of his ire.
I happened to have grown up on the Gulf Coast, and my family still lives there, and so I also happen to know that every business in the region was harmed by the oil spill. Like a herbicide on a plant, the oil spill poisoned the whole economy, from root to leaf, starting with fishing and tourism — the largest industries on the Coast — and expanding from there. There was indeed billions of dollars in “indirect harm.” Continue reading
One of my most popular posts among lawyers is “Be A Potted Plant: Sanctions For Deposition Coaching and Witness Conferences,” which talks about how to defend a deposition in federal court, or, rather, how a lawyer should not defend a deposition of their client by acting like a fool at the deposition and interposing speaking objections. Others, like Jordan Rushie and Alex Craigie, have their own thoughts. (See my comment to Craigie’s post — our views are not so different after all.)
I had intended on writing a post about the law of taking depositions in federal court, but I ran across an article by C. Malcolm Cochran, IV of Richards, Layton & Finger, P.A that was so good I felt it more prudent to simple link to the article, “But The Examination Still Proceeds”: A Primer On Surviving the Difficult Deposition,” rather than re-treading the same material.
Instead, I’d like to address a different issue: how a lawyer prepares for the deposition. This post is aimed towards novice plaintiff’s lawyer, though most of the advice is applicable to defense lawyers, too.
First, consider this critical point: The poetic phrasing is “the law is made on a lawyer’s desk,” but what this actually translates to is you putting your butt in your office chair and stretching your concentration and willpower to its limits. The busy lawyer must make time for serious thinking, not just in the abstract, but in preparing the details. Continue reading
For-profit corporations exist to make money. They’re legally obligated to maximize profit. It’s a basic, unassailable fact about our laws and our economy, but, as Chancellor Leo E. Strine, Jr., of the Delaware Court of Chancery (the primary business disputes court in the county) recently discussed in a law review article, there has been a “continued failure of our societies to be clear-eyed about the role of the for-profit corporation.” See Our Continuing Struggle With the Idea That For-Profit Corporations Seek Profit, 47 Wake Forest L. Rev. 135 (2012).
Although it was quite clear to the Framers of the Constitution that a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law,” Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636, 4 L.Ed. 629 (1819), as Chancellor Strine notes in his article, these days we as a society somehow continue to have problems admitting it to ourselves. As a result, we have been headed down an absurd path in which our courts have manipulated the law to treat corporations like individuals independent of their owners when it comes to rights. See, e.g., Citizens United, which held that corporations have a special right to conceal the source of electioneering funds.
Which brings us to Conestoga Wood Specialties Corporation, a Pennsylvania for-profit corporation that manufactures wood cabinets. The company was founded and owned by a family that claims to be devout Mennonite Christians. The Bible says, “do not deny justice to your poor people in their lawsuits,” Exodus 23:6, but the folks behind Conestoga Wood Specialties formed a corporation — rather than, say, a general partnership — to limit their liability in lawsuits. That’s one of the special advantages we grant to corporations: shareholders are immune from liability for the harms and losses caused by the corporation. If one of those wood cabinets was built improperly, and it falls on a child, the corporation is responsible, but the owners of the corporation won’t have to pay a penny.
That’s their right: we write the laws that way to encourage investment into corporations. “The business of America is business,” and so on and so forth. Similarly, the owners of Conestoga have every right to take the money they earn from Conestoga and practice their religion however they want.
But the owners of Conestoga aren’t happy with that: they want Conestoga to have the special rights we grant to corporations to help the corporation make money (like the limitation on liability and preferential tax treatment) and they want the corporation to have the same rights as natural persons do. Continue reading
Conventional legal wisdom holds that 95% of lawsuits settle. Is that true? Maybe not, according to this 2009 analysis, but it’s clear that most civil disputes are indeed resolved by the parties before the trial, appeal, and judgment enforcement process is completed. That, in turn, leads civil litigators to spend far too much time and energy trying to psychologically manipulate their opponents into capitulating.
Another fact is that civil litigators tend to be, both by training and by nature, writers. The Curmudgeon’s Guide to Practicing Law, written primarily from a litigator’s perspective, emphasizes repeatedly the importance of taking writing seriously and of producing briefs, memos, and letters of which the author can be proud. There are quite a few litigators who have spend more time agonizing over word choice, sentence construction, and synonyms — is my opponent’s argument frivolous, meritless, groundless, irrelevant, immaterial, not germane, inapposite, inapt or just plain wrong? — than they have perusing the relevant case law.
Those two factors create a combustible mix in the demand letter. Thousands of demand letters are sent every day and they are, by and large, boring: here’s why I think I’ll win the case, here’s what my client’s damages are, and here’s how much I’m asking you to pay. They only get exciting when: (1) the damages exceed the available insurance policy limits, and the plaintiff’s lawyer is trying to set up the insurance company for claim of bad faith; (2) when the lawyer threatens to cause harm by way of the legal system itself (e.g., the infamous “legal equivalent of a proctology exam” letter, which was reversed on appeal); or, (3) when the plaintiff attempts to threaten the defendant with some consequence beyond the mere pursuit of the lawsuit, like exposing them to embarrassment or criminal prosecution.
The third part is where the problem comes in: the definitions of embezzlement and blackmail differ from state to state, but, by and large, an attempt to obtain money from someone else by threatening to expose them or report them to the authorities arguably constitutes embezzlement or blackmail. So, when does a lawyer’s demand letter become extortion? Continue reading
Three years ago, Professor Richard Epstein of the University of Chicago was peddling falsehoods and misconceptions about malpractice law that wouldn’t pass a 1L Torts class. Via Walter Olson, I see he’s back with a piece titled, “The Myth of a Pro-Business SCOTUS,” claiming “Commentators inaccurately condemn the five conservative justices as corporate shills.” He specifically mentions articles by Erwin Chemerinsky, Adam Liptak, Arthur Miller (whose article I discussed previously) and the recent analysis by Lee Epstein, William Landes, and Richard Posner.
Epstein raises three complaints about attacks on the Roberts Court: “selection bias; misplaced significance; and failure to account for the importance of consistently taking the ex ante perspective.”
Before we go on, be sure to read my summary of the Supreme Court’s 2012–2013 Term as it affected consumers, employees, and patients. “Business” — at least big business — won over Middle America at every turn. It’s not just a matter of individuals losing the only tools they have to keep the dangers of corporate greed and recklessness in check. Small businesses, for example, were told in American Express Co. v. Italian Colors Restaurant that they can’t use antitrust laws anymore, because the Supreme Court thinks its better for big banks to reap unjust and illegal profits than it is for small businesses to have their day in court.
Unsurprisingly, when Epstein reviews several recent Supreme Court cases, he leaves AmEx out. Kind of says it all, doesn’t it? Continue reading