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 [...]
As I’ve argued on this blog before, “defensive medicine” — i.e., the claim that doctors routinely order useless medical tests and procedures solely to prevent the appearance of malpractice — is a myth. By and large, if a test or procedure won’t help prevent the patient from developing a serious complication, then it won’t help the doctor avoid a lawsuit if something goes wrong. Conversely, if a test or procedure would have helped the patient avoid a serious injury or complication, then, typically, the standard of medical care required the test or procedure anyway. Tort liability arises only when a doctor fails to do what a reasonable doctor would do and that failure causes the patient harm.
As I detailed again back in August, states that enacted draconian “tort reform” laws — which made it impossible for injured patients to pursue all but the most egregious cases of malpractice involving millions of dollars in damages — have not seen any reductions in their health care costs. Tort law and malpractice lawsuits simply don’t have much of an effect on health care and health care spending in the United States. That’s not surprising, considering that malpractice payments comprise a mere one-tenth of 1 percent (0.11 percent) of national health care costs. Plenty of unnecessary medical procedures are performed every day, but the motive for them is the obvious one: to make money.
However, the myth of defensive medicine just won’t go away, and on Christmas Day, a doctor under the pseudonym “Skeptical Scalpel, MD” posted that “defensive medicine is ubiquitous and not going to go away soon. Health care costs will continue to rise.” He recommends “a massive culture shift” among doctors and patients.
It’s unclear what kind of culture shift Dr. Scalpel has in mind, but the three examples of “defensive medicine” he gives suggest he wants doctors to scrap the differential diagnosis (the process of elimination that forms the backbone of clinical medicine) and stop reaching out to colleagues for advice on complicated cases.
Here’s his first example:
A young man with chest pain arrives in the ED. After taking a history and examining the patient, the ED MD is 99.99% certain that the patient did not have a heart attack or a pulmonary embolism. But he’s a little short of breath. He remembers a case of a fatal PE with only minimal shortness of breath, orders a blood gas and CT angiogram of the chest.
Any physician who is “99.99% certain” that patient did not suffer a heart attack is unfit to practice medicine. A patient history and physical examination will never give any physician enough information to be “99.99%” or 98.78% or 73.64% or 22.13% or 00.01% certain of anything. Clinical medicine doesn’t work that way. A doctor in that circumstance might reasonably be “pretty sure” or “confident” that the patient isn’t having a serious, urgent medical condition, but to ascribe any specific probability to it — much less a probability (“99.99%”) that is an incredible 3.89 standard deviations from the mean, with an equally surprising zero confidence interval — means that the doctor has utterly failed to understand the limits of a clinical medicine, and has wrongly presumed a level of mathematical precision to their analysis. Continue reading
When I saw it, I had to double-check to see if it was a joke. The report said the Florida Bar precluded a law firm from posting on its blog remarks like, “[the days] when we could trust big corporations … are over,” “Government regulation of … consumer safety has been lackadaisical at best,” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry,” because such statements of opinion are not “objectively verifiable.” If that was the rule everywhere, then the ABA Journal’s list of top blawgs would be very dull indeed.
Could that report about the Florida Bar possibly be true? Two centuries ago Thomas Jefferson said “banking establishments are more dangerous than standing armies.” Less than a month ago Pope Francis decried how today “Human beings are themselves considered consumer goods to be used and then discarded.” But the lawyers who take on the banking establishments and hold corporations accountable for treating people like disposable goods can’t say the same?
Turns out the Florida Bar really did tell Searcy Denney Scarola Barnhart & Shipley PA that their blog violated that Bar’s most recent restrictions on attorney advertising because those statements of opinion were not “objectively verifiable.” Quite understandably, the firm has filed a First Amendment challenge to the restriction (complaint here). Continue reading
[Update, December 9, 2013: Judge Herndon entered stiff sanctions today given Defendants' misconduct in discovery. "As the Court mentioned hereinbefore, the question the Court has been asking over and over again has been answered. How can these problems keep happening? One of the problems to which the Court has been referring was that the defendants kept coming up with materials in an untimely manner. Materials were being turned over months and months late - often on the eve of a deposition. It is clear to the Court that the defendants have been pursuing a policy of turning over relevant material, or withholding relevant material, on their schedule and not the Court’s. In doing so, they have violated the Court’s case management orders. They have made misrepresentations to the Court in open court and in chambers. The defendants have caused the Court to believe that each defendant had a litigation hold, company-wide, on all relevant personnel and all relevant documentation and data (in their broadest definitions) at all relevant times."]
Kurt Vonnegut wrote in Slaughterhouse-Five that The Brothers Karamazov was the one book “that can teach you everything you need to know about life.” Here’s one of the lessons from Dostoyevsky’s final novel:
Above all, don’t lie to yourself. The man who lies to himself and listens to his own lie comes to a point that he cannot distinguish the truth within him, or around him, and so loses all respect for himself and for others.
I thought of that advice when I read U.S. District Judge David Herndon’s “minute order” earlier this week in the In re Pradaxa (Dabigatran Etexilate) Product Liability Litigation:
MINUTE ORDER … Today, the defendants contacted the Court suggesting that the December 16, 2013 deadline [imposed by the Court] may reflect a misunderstanding as the defendants do not believe the Court could possibly have intended to order a production completion date for which the defendants will be physically unable to comply.
In other words, as with past orders, the defendants can’t fathom the Court was not persuaded by their argument and/or did not accept their assertions of fact. They cannot accept that the Court would not simply enter an order as requested by them. Therefore, they are now giving the Court an opportunity to correct this faux pas. To which the Court now responds, no thank you.
The Court considered carefully the assertions made by the defendants and weighed those assertions against the record in this case. On an assessment of credibility, the Court surmised that the defendants’ assertions of the time needed, in light of what has transpired in the past, was an exaggeration.. Signed by Chief Judge David R. Herndon on 12/4/2013.
(Breaks added for clarity; emphasis added) See it in all its glory on the ILSD ECF.
If you don’t think you can win fair and square, then change the rules. That’s been the modus operandi of the United States Chamber of Commerce (a private lobbying group with a misleading name) and the wealthy interests it represents, like the nation’s major insurance companies and product manufacturers. That’s why there’s been such a push for “tort reform” in the states over the past generation: because those same interests have realized that, in a fair court system, they will be held accountable for the full human and economic damage that they cause.
In the federal system, those wealthy interests have had such success in re-writing civil justice law in their favor — to those who doubt a slant in the Supreme Court, consider how the Chamber of Commerce wins every time, from Dukes to Behrend to Concepcion to Mensing to Barlett to Italian Colors — that they have moved on to re-writing federal civil procedure itself in their favor. This effort had its first big victory back with Twombly and Iqbal, which encouraged lower courts to start arbitrarily tossing out claims and cases on metaphysical grounds like whether an expert’s analysis was a “fact” or a “legal conclusion.”
Since then the effort to effectively grant civil immunity to a host of wealthy interests by way of supposedly neutral procedural changes has been gathering steam, culminating this year in proposed amendments to the Federal Rules of Civil Procedure by the Federal Judicial Conference’s Committee on Practice and Procedure. The two biggest issues relate to proposals (1) to preclude plaintiffs from obtaining evidence, including evidence held by defendants (back in June, I wrote about the “proportionality” changes) and (2) to give corporations a blank check to destroy evidence without any consequences. Continue reading
[Update: After I published the initial version of this post, GoldieBlox pulled the video and "apologized." My thoughts are appended at the end.]
About 30 years ago, a punk rock band in New York City had the good fortune to run into an NYU student named Rick Rubin, who convinced them to move into hip-hop and rap and began producing them. This compelled the only woman in the group, Kate Schellenbach, to leave. (She eventually went on to join Luscious Jackson and to be a producer of The Ellen DeGeneres Show.) Three years after that, they released their debut album Licensed to Ill, which became the first rap album to hit No. 1 on the Billboard chart.
On that album was a short, repetitive (the melody is just The Isley Brothers’ “Shout” played over and over again), misogynistic track titled “Girls,” a track hated by a large swath of society, including, apparently, some of the band members. The Beastie Boys never played it live, and Adam “MCA” Yauch subsequently apologized for the insulting and bigoted content on the album, including in 1994 lyrics “I want to say something that’s long overdue / the disrespect to women has got to be through / to all the mothers and the sisters and the wives and friends / I wanna offer my love and respect to the end,” and in a 1999 letter to Time Out New York.
It was thus deeply satisfying to see GoldieBlox, the makers of a science-based toy for girls (one that I pre-ordered for my girls and received as a gift from my mother), repurpose the song as a girls-empowerment theme, changing lines like “Girls, to do the dishes / Girls, to clean up my room” into “Girls, to build the spaceship; Girls, to code the new app.” They then posted it online, and it promptly went viral, shared widely by the many people who hated the original “Girls.”
It’s unclear what exactly transpired between The Beastie Boys and GoldieBlox, but it is clear The Beastie Boys felt the use was for commercial advertisement, even if it was for a positive message with which they now agreed, and so now the case is in Court. The Hollywood Reporter has the complaint.
Considerable attention has been drawn towards the fact that Goldieblox filed the case, not The Beastie Boys (or Def Jam Records, or any of the other entities involved), but in the world of copyright litigation, that doesn’t mean too much. If there’s doubt as to whether or not you’re infringing on a copyright (i.e., if you’ve received a specific claim that you’re infringing), there’s good reason to file first, and in this case the complaint is filed against a bunch of massive corporations in a district that is convenient to them (i.e., the Northern District of California), and so this isn’t an example of a big company trying to push around a copyright holder by preemptively suing them in a far-flung jurisdiction. I personally wouldn’t have filed first, but there’s nothing unusual about GoldieBlox doing it, and the law encourages them to file quickly to remove the cloud of doubt — if they don’t, and it turns out later that a court finds the work to be infringing, they could be on the hook for much larger damages.
Now, on to the merits: does the GoldieBlox commercial infringe upon The Beastie Boys’ copyright to “Girls?” Continue reading
Late last week, when I heard that the U.S. House of Representatives passed the “Lawsuit Abuse Reduction Act,” a certain Mark Twain quote came to mind: “Suppose you were an idiot, and suppose you were a member of Congress; but I repeat myself.”
Currently, if a lawyer violates Federal Rule of Civil Procedure 11 (which prohibits, for example, filings presented for an improper purpose or which contain a false statement of fact), a Court may impose a sanction, including a monetary penalty. The “Lawsuit Abuse Reduction Act” would change that to require monetary sanctions whenever a Court finds Rule 11 was violated.
I discussed the same bill two years ago, noting that the bill would actually make litigation in federal courts more expensive for everyone involved, by encouraging lawyers on both sides to file endless sanctions motions against one another, as was the case for ten miserable years between 1983 and 1993 when a similar rule was in effect. I’m not alone in my views: as the Judicial Conference of the United States wrote earlier this year in opposition to the Act, the old rule “quickly became a tool of abuse in civil litigation” that absorbed money and time on “Rule 11 battles that had everything to do with strategic gamesmanship and little to do with underlying claims.” A whopping 91 percent of federal trial judges oppose the bill’s requirement for mandatory sanctions, hence the Judicial Conference’s opposition. The American Bar Association has opposed it as well.
The bill is unlikely to pass in the Senate, and, if it does, it will be vetoed by President Obama, but it nonetheless deserves close scrutiny because it reminds us of an important point about tort reform: big businesses and big insurance companies want the civil justice system to be more expensive, not less. Continue reading
[Update: A month after I posted the below article, researchers at the Radiological Society of North America's annual meeting presented a cardiac MRI study showing that consumption of energy drinks "increased peak strain and peak systolic strain rates in the heart's left ventricle," which could potentially trigger arrhythmias.]
Few headlines are as cringeworthy to upstanding trial lawyers as those which include a phrase like “$85 million lawsuit alleges,” and earlier this week the New York Daily News reported “Brooklyn man killed by drinking Red Bull, $85 million lawsuit alleges.”
As Eric Turkewitz aptly explains about the “$85 million dollar” Red Bull wrongful death lawsuit, this practice is prohibited in many venues — like New York, where the case was filed — and yet lawyers do it anyway, either out of ignorance about the rules or to attract attention. At least here, though, our attention is drawn to what looks like an interesting case.
First, let’s start with the medicine: is it possible Red Bull contributed to the death of 33-year-old Cory Terry during a basketball game? I think the answer is clearly “maybe.” The article says his death certificate lists the cause of death as “idiopathic dilated cardiomyopathy.” “Dilated cardiomyopathy” is generally an enlargement of the heart’s left ventricle, which affects pumping, and “idiopathic” is medical speak for “I don’t know what happened to this patient.” (“Idiopathic” is a mashup of the ancient Greek words idios and pathos, together meaning “one’s own suffering.”)
In the medical field, idiopathic dilated cardiomyopathy is a complicated, frustrating problem. Consider this 2012 research article:
Despite recent advances in the management of patients with heart failure, morbidity and mortality rates remain high. Common causes of heart failure are ischaemic heart disease, uncontrolled hypertension and valvular disease. However, in up to 50 % of the cases its exact cause remains initially unknown; this condition is called idiopathic dilated cardiomyopathy (DCM).
We thus don’t know the cause of half of all heart failures, but we do know that stimulants, particularly cardiac stimulants like caffeine, can raise heart rates and cause palpitations and arrhythmias and thus can contribute towards heart failure in patients with cardiomyopathy. As The Cardiomyopathy Association says, “General advice is that people should minimise their caffeine intake.”
In sum, while we might not know the precise nature of his underlying heart problems, it is plausible — I would say likely — that the stimulants in the Red Bull contributed to his heart failure.
But does that make Red Bull responsible for his death? Continue reading
After spending decades hiding from the limelight, Harper Lee, revered by lawyers across the country for giving us our greatest fictional champion, has had a rough, litigious, and very public year. In May, she sued her former agent Samuel Pinkus (Complaint here), alleging that he had taken advantage of her failing health, tricking her into assigning away the copyright for To Kill A Mockingbird, failed to account for and thus to properly pay royalties, and failing to “work the copyright,” apparently giving us an explanation as to why To Kill A Mockingbird has never been available as an e-book. Vanity Fair did a long story on the controversy in July, and then in September the whole case was settled. Given the speed of the settlement, I can only presume it settled for roughly whatever Lee’s lawyers were requesting.
All’s well that ends well? Not quite. To Kill A Mockingbird is not just a classic book, it’s a major business. As Vanity Fair reported, “In one typical six-month period alone, ending December 2009, Lee earned $1,688,064.68 in royalties, according to court papers.” While the Pinkus saga was ongoing, Lee’s lawyers had already filed, in September 2012, an application for a trademark for “To Kill A Mockingbird” as used on “clothing for men, women and children, namely T-shirts, hats, jackets.”
There’s nothing wrong with an author trying to license and merchandize rights that arise from their creation. (Bill Watterson, creator of Calvin and Hobbes and another famous recluse, hated mechandizing with a passion.) But this seems like a sad story that’s just getting sadder. Continue reading
First, an important credit: The Philadelphia Inquirer has devoted a half-dozen stories to the plight of Barbara Mancini. All the facts described in this post come from their reports.
Joseph Yourshaw, 93 years old and a World War II veteran who had served in the Battle of the Bulge, was in home-hospice dying from kidney failure, end-stage diabetes, and heart disease, with additional complications from a stroke and pain from arthritis. Barbara Mancini was a nurse in Philadelphia and, it seems, quite a good daughter, as she had made the 2-hour trek up to Pottsville in Schuykill County to be bedside with him and to help him with his medications. He was in severe pain, as usual, and he had a prescription for morphine. She asked the hospice nurse for a bottle of morphine; it’s apparently disputed whether she asked for a second one after already giving him one, or whether she asked for a second one because the first hadn’t arrived yet and Yourshaw was in pain.
And that’s when the nightmare started. The hospice nurse called 911, and reported the following:
The nurse “told me that her client had taken an overdose of his morphine with the intent to commit suicide,” [police officer] Durkin wrote in his report.
The nurse said Mancini, who also is a nurse, gave her father the morphine “at his request so that he could end his own suffering,” Durkin wrote.
Before getting to the prosecution, let’s start with the factual predicate. If everything the nurse said was true — thus far, as is typical when there is a criminal prosecution, Mancini has not given her side of the story publicly — then so what? Pennsylvania law allows a person to voluntarily die by way of suspending medical care, food, water, ventilation, and so on and so forth; the state even has a website set up so people can correctly set up their advance directives for health care paperwork. If we allow someone to literally starve himself to death rather than continue living with a terminal illness, why don’t we allow him to simply increase the dosage of the pain medication he’s already taking?
Indeed, the United States Supreme Court has already said it’s okay for States to allow patients to request life-threatening levels of palliative medication:
Just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended “double effect” of hastening the patient’s death. See New York Task Force, When Death is Sought, supra n. 6, at 163 (“It is widely recognized that the provision of pain medication is ethically and professionally acceptable even when the treatment may hasten the patient’s death, if the medication is intended to alleviate pain and severe discomfort, not to cause death”).
Vacco v. Quill, 521 U.S. 793, 807, Fn 11 (1997). But, just because something is “ethically and professionally acceptable” doesn’t mean it’s lawful in Pennsylvania, and our Commonwealth still has the absurd notion that what allegedly happened to Mr. Yourshaw was a terrible crime. Continue reading
It’s October, which means the Supreme Court is back in session, ready to continue its pro-big-business charge. It also means it’s time for me to get back to a recurring theme on my blog: if past sessions are any indication, then no matter what the Supreme Court decides this year, it’s likely that it won’t have a clue what it’s talking about, and its opinions will be littered with dubious factual conclusions.
This problem seems to be getting worse in the era of the Roberts Court, which has taken judicial activism to a new level. Back in 2009, I recommended the Supreme Court circulate draft opinions publicly — the same way that bills are proposed in Congress and regulatory changes are proposed in agencies — before making them the law of the land. In February 2012, Alli Orr Larsen wrote about “Confronting Supreme Court Fact Finding,” perhaps by way of an agency analogous to the Congressional Research Service, which I discussed here.
But it’s important we recognize that the problem of Supreme Court “fact finding” isn’t just a matter of the Court not understanding cable television markets or how plaintiff’s lawyers are compensated differently from defense lawyers. The Supreme Court’s factual misunderstandings intrude very deeply into some of the Court’s core doctrine.
Take, for example, qualified immunity in civil rights lawsuits. It would make sense if people could sue State governments to recover damages when their constitutional rights are violated — like when police officers literally break someone’s face for back talking — but the Supreme Court has erected tall barriers against such relief. It’s not enough to prove constitutional rights were violated; the plaintiff also has to jump through a variety of hoops, such as suing the police officer individually, rather than the municipality or county, for the violation, and then they have to show that their right was “clearly established” and that the violation “shocks the judicial conscience,” which is so ambiguous that it’s really just code for giving federal judges a way to get rid of civil rights lawsuits they don’t think should succeed. Continue reading