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Monthly Archives: February 2009

CJ says Mass. courts in crisis

The economic downturn could have a devastating impact on the American justice system as courts are forced to lay off employees and cut down on court hours, Massachusetts’ top judge said yesterday.

“I shall be blunt: Our state courts are in crisis,” Supreme Judicial Court Chief Justice Margaret H. Marshall told members of the American Bar Association at its midyear meeting at the Hynes Veterans Memorial Convention Center. “A perfect storm of circumstances threatens much of what we know, or think we know, about our American system of justice.”

Marshall outlined the impact of cuts on the Massachusetts court system proposed by Governor Deval Patrick. She also outlined the impact of cuts to court systems in other states, particularly New Hampshire, Florida, and Maine. For example, New Hampshire’s judicial branch will halt civil and criminal jury trials for a month to save on per diem payments to jurors.

For the complete story, you can see the Boston Globe report by clicking here.

Imagining life without lawyers

There is yet another book out there touting a world without lawyers, and extolling life without litigation. Philip Howard’s “Life Without Lawyers: Liberating Americans from too Much Law” contains a highlight reel of misguided cases which are presented for their ability to persuade people that there is a problem with civil justice in this nation. Howard’s alarmist presentation permeates old myths which distort the truth.

We know that everyone hates lawyers until they need one. And it is for those occasions when we may indeed need a lawyer, that we should be suspect of anyone who seeks to eliminate them.

How many times have we heard the rallying cry quoting from Shakespeare’s Henry VI: “THE FIRST THING WE DO, LET’S KILL ALL THE LAWYERS?” But those who use this phrase against lawyers are as miserably misguided about their Shakespeare as they are about the judicial system which they disdain so freely.

Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying great and deserved homage to lawyers as the front line defenders of democracy. The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well-deserved compliment to the legal profession.

Writing for Newsweek magazine, Dahlia Lithwick imagines life without lawyers and concludes: “the one thing scarier than a bus full of lawyers is a bus without them.” She talks about America after 9/11 and the loosening of laws protecting civil rights and civil liberties. She asks rhetorically whether these changes have made us safer? I think the conclusion is quite clear; the last eight years have shown us just how troubling it can be when we move from away nation of laws. You can read her full story by clicking here. For a quick review of the book from Time magazine, click here.  You can read an interview with the author from US News and World Report by clicking here.

To the extent that Howard’s book encourages conversation about improving civil justice, it is worth the read. But if it is used as a rallying call for so-called tort “reform”, then it is nothing other than dangerous propaganda.

Howard talks a lot about accountability in his book. We agree on the premise that accountability is important. But the truth is we need a strong and vibrant justice system to hold people accountable and succeed as a democracy. Any efforts to restrict or restrain the jury system hinders civil rights for all. In doing so, these efforts make us less free.

I’ll end with this: several years ago, a former colleague of mine (a journalist from the other industry that fosters accountability) captured the essence and importance of lawyers. I posted it then encourage you to read it again by clicking here.

Court finds autism not linked to vaccine

In a big blow to parents who believe vaccines caused their children’s autism, a special court ruled Thursday that the shots are not to blame. The court said the evidence was overwhelmingly contrary to the parents’ claims — and backed years of science that found no risk. To see the full story in today’s Boston Globe, please click here.

In its decision the court ruled that “[i]t was abundantly clear that petitioners’ theories of causation were speculative and unpersuasive.” The ruling was anxiously awaited by health authorities and families who began presenting evidence in June 2007. More than 5,500 claims have been filed by families seeking compensation through the government’s Vaccine Injury Compensation Program.

In a statement released by the United States Department of Health and Human Services, it was recognized that autism and autism spectrum disorders place a heavy burden on many families. “That is one reason why the U.S. Department of Health and Human Services continues to support research to better understand the cause of autistic disorders and develop more effective methods of treatment,” the statement continued. “The medical and scientific communities have carefully and thoroughly reviewed the evidence concerning the vaccine-autism theory and have found no association between vaccines and autism. If parents have questions or concerns about childhood vaccines, they should talk with their child’s health care provider.”

To view a copy of the court’s complete 42 page decision, click here.

Restrictive medical bill proposed by doctors’ group

An advocacy group for Massachusetts doctors said it will offer a bill in the state legislature to eliminate the expanded liability of physicians which was created by two recent court decisions: the December 2007 decision in Coombes v. Florio, which allows claims against physicians by non-patients, and by the July 2008 decision in Matsuyama v. Birnbaum, which held that doctors can be held liable for negligence that reduces a patient’s chance for survival even if the patient’s prospects for recovery were less than 50 percent. This, of course, would be an unwelcome intrusion into the jury trial system and should not be enacted by the state legislature.

The Massachusetts Medical Society said the legislation would eliminate the liability of doctors beyond the physician-patient relationship and establish that physicians cannot be held liable for the loss of chance of a better outcome but only for their negligence which actually causes the death of a patient who has a better than 50 percent chance of survival. The Society has proposed “An Act Relative to Causation in Professional Liability.” 

The facts from the Coombs case are as follows:

Dr. Florio became Sacca’s primary care physician in 1999. By 2002, when the accident occurred, Sacca was seventy-five years old and had been diagnosed with a number of serious medical conditions including asbestosis, chronic bronchitis, emphysema, high blood pressure, and metastatic lung cancer that had spread to his lymph nodes. . . . Shortly after the cancer was diagnosed, in July, 2000, Dr. Florio warned Sacca that it would not be safe for him to drive during his treatment for cancer. Sacca obeyed the warning and did not drive until the fall of 2001, when treatment for his cancer concluded. At that time Dr. Florio advised Sacca that he could safely resume driving.

At the time of the accident Sacca had prescriptions from Dr. Florio for Oxycodone, Zaroxolyn, Prednisone, Flomax, Potassium, Paxil, Oxazepam, and Furosemide. Potential side effects of the drugs include drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation. . . . According to the plaintiff’s expert, when used in combination these drugs have the potential to cause “additive side effects” that could be more severe than side effects resulting from separate use. The plaintiff’s expert also opined that the sedating effects of these drugs can be more severe in older patients, and that the standard of care for a primary care physician includes warning elderly or chronically ill patients about the potential side effects of these drugs, and their effect on a patient’s ability to drive. Dr. Florio did not warn Sacca of any potential side effects. Before the accident occurred Sacca reported no side effects from the medication and had no trouble driving. Sacca’s last visit to Dr. Florio before the accident was on January 4, 2002. At that visit, Dr. Florio did not discuss potential side effects and gave no warning about driving.

On the day of the accident, March 22, 2002, Sacca drove his automobile to do some errands. On his way home he lost consciousness and his automobile left the road and hit Coombes, who was standing on the sidewalk with a friend.

Coombes died from his injuries.

The court ruled that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient. In other words, it left it up to a jury to determine whether or not the decision to leave physician was negligent in him and it didn’t take him and took him to the physician was negligent. As the court noted:

Sound public policy also favors a duty in these circumstances. The costs of imposing a duty owed to individuals other than a patient are limited because existing tort law already imposes on a doctor a duty to warn a patient of the adverse side effects of medications. See Cottam v. CVS Pharmacy, supra, citing McKee v. American Home Prods. Corp., 113 Wash.2d 701, 709 (1989). The duty described here does not impose a heavy burden because it requires nothing from a doctor that is not already required by his duty to his patient. See McKenzie v. Hawai’i Permanente Med. Group, Inc., supra at 306; Hardee v. Bio-Med. Applications of S.C., Inc., supra; Burroughs v. Magee, supra at 333. Meanwhile, the benefits of such warnings are significant. They serve to protect the public from the very harm that creates the parallel duty to the patient, the foreseeable risk that known side effects of a drug will impair a patient’s ability to drive. See McKenzie v. Hawai’i Permanente Med. Group, Inc., supra at 307; Burroughs v. Magee, supra at 332-333.

The legislation would eliminate the liability of physicians that was soundly established from this well reasoned court decision. But it goes beyond this decision and the proposed legislation would establish that physicians may not be held liable for the loss of chance of a better outcome but only for their negligence which actually causes the death of a patient who has a better than 50 percent chance of survival (the ruling which arose from the in Matsuyama v. Birnbaum decision).

This legislation would be an unnecessary and unreasonable restriction on the right of individuals to seek redress for their injuries and would be an affront to the jury trial system. The jury system was put in place to ensure individual rights and freedoms. Legislation like this stacks the deck against injured consumers who need a level playing field when they enter a courtroom. The real issue is accountability, and holding doctors to the standards set forth in these court decisions will be the only way for consumers to be assured of patient safety.

Defendants ordered to pay costs in lead paint litigation

A Rhode Island Superior Court judge ruled that the paint companies that were defendants in the state’s historic public nuisance lawsuit are entitled to some reimbursement of their expenses because the state Supreme Court threw out the lawsuit last year. The decision by Judge Michael A. Silverstein pertains to $242,121 the companies say they spent on court-appointed examiners after a jury found they created a nuisance with their paints two years ago.

Last year, the Rhode Island Supreme Court brought an abrupt end to the state’s nine-year campaign to force some of the nation’s major corporations to clean up the lead-based paints that the state believes poisoned tens of thousands of Rhode Island children. With the decision, the court overturned a verdict by a six-person jury that found the companies created a public nuisance by making and selling the paints.

This is a rather frightening turn of events. With the original jury verdict in its favor, Rhode Island had won a major public safety battle with the lead paint industry. With the reversal of that verdict, and now the taxing of costs against the plaintiff, the jury system and the general public is taking a major hit. And trial lawyers are being sent a dangerous message: beware of taking on big industry, because you will be made to pay if you lose. This is a very dangerous precedent and one that may very well harm the underlying purposes of the tort system.

On the decision ordering the plaintiffs now to pay some of the defense costs, the Wall Street Journal noted that, “The trial lawyer set is getting a lesson in the real definition of ‘public nuisance” because “late last month, Rhode Island Superior Court Judge Michael Silverstein ruled that defendants in a legendary lead-paint litigation should be reimbursed for $242,000 in ‘co-examiner costs’ for a lawsuit they won in July.” The Journal goes on to say, “The reimbursement may be pocket change to some, but it sends a strong signal to trial lawyers and state Attorneys General that filing frivolous lawsuits is not cost-free.”

For the Providence Journal’s report click here. To view the Wall Street Journal editorial, click here.