U.S. District Judge Mary Ann Vial Lemmon on Monday ruled that one of three proposed subclasses can move forward to trial as a class: A group of about 200 Regional Transit Authority employees, their families and friends who tried to cross the bridge the day after the Aug. 29, 2005, storm whose tidal surge caused levee failures that flooded the city.
The ruling leaves the plaintiffs’ attorneys considering whether to amend their case to name as many as 140 people as individuals who do not fall under a subclass.
A California jury has awarded a former college student more than $49 million in damages, after finding two truckers and the state liable for a 2007 accident that left him severely brain damaged.
In May 2007, Drew Bianchi was a passenger in a car with three companions headed for a camping trip. Two trucks collided on a perilous two-lane mountain pass about 25 miles south of San Jose, Calif. One of the trucks struck the car Bianchi was riding in, crushing the section of the car where he was seated.
Bianchi, now 23, requires around-the-clock care and lives in a residential facility near his family in Bakersfield, Calif.
Co-plaintiff’s counsel RandallScarlett said reckless driving by the two truck drivers was the main factor in the accident.
Jurors deliberated for two days following a five-week trial before finding that one of the drivers, Samuel Bimbela, bore 60 percent of the responsibility for the crash. His employer, Salazar Construction, argued that Bimbela was acting outside the scope of his employment at the time of the accident, so Bimbela faced trial alone.
The other driver, Michael Demma, and his employer, Gordon Trucking, were held 35 percent responsible.
The jury found the state was 5 percent at fault due to the dangerous condition of the roadway.
The 12-person jury awarded Bianchi $31 million for past and future medical expenses; $4.5 million for future lost wages and $13.5 million for past and future noneconomic losses, including pain and suffering.
The defendants are severally liable for the general damages, and jointly and severally liable for the economic damages.
Salazar Trucking, which employed Bimbela, settled before the trial for $2 million. The state settled for $10 million. The combined verdicts and settlements mean that Bianchi will receive a total of about $61 million.
The Associated Press reports that a Rhode Island Supreme Court judge refused to temporarily halt the eviction of a group of homeless people who have set up an encampment on city-owned land in Providence.
Justice William P. Robinson III declined to issue a last-minute stay requested by the people who are staying on the land near Roger Williams Medical Center that would have allowed them to remain there while their lawyer, Neville Bedford, appeals a lower court’s decision allowing the city to evict them.
Robinson’s ruling required the residents — who call the place Camp Runamuck — to leave by 5 p.m. Monday. Bedford said he did not know what the residents planned to do.
“They’re in a very difficult position to find someplace to subsist,” he said.
August was quite the month in the ongoing health care saga. Death panels. Scaring seniors. Angry mobs discovering new villains to blame for the terrible health care system we find ourselves having to fix today.
And then we have the tried-and-tested scapegoat for all of America’s ills and woes: trial lawyers.
Let’s face it: Trial lawyers — and all attorneys, for that matter — aren’t revered by the public at large (unless you need one). But for those who want to stick it to the trial bar, this bill is your chance. We can lower costs, help cover the uninsured and even put trial lawyers out of business.
No, it’s not tort reform. We’re demanding solutions that actually work. And preventing medical errors in the first place — an epidemic that plagues our entire health care system — will result in less litigation, lower costs and healthier patients.
Let’s cut the wheat from the chaff: Tort reform will do nothing to fix health care. Forty-six states have already done it, and costs have continued to skyrocket. The Congressional Budget Office and Government Accountability Office have said tort reform will save practically no money, and they found no evidence of defensive medicine. Medical malpractice suits are less than 1 percent of all civil filings — and this has declined 8 percent during the past decade. The research is definitive and absolute, and those claiming otherwise are just trying to obstruct health care reform altogether.
There are several exciting things happening at tonight’s event.
First, the presidency will be passed from Miriam Weizenbaum to Patrick Barry. Second, the “Citizen of the Year” Award will be given to two families who lost loved ones in the September 11, 2001 attacks. The parents of Shawn Nassaney and Sara Low, with their attorney, made a choice to forego the certainty of settlement and instead to put their faith in the power of the civil justice system to reveal failures that would have forever remained hidden from us all. Third, the “Judicial Merit” Award will be given to RI Superior Court Associate Justice Daniel A. Procaccini, a respected trial judge and current civil calendar judge in Kent County, who receives the award for his contribution to the integrity of the courts and for being a protector of the rights of litigants. Finally, the special guest will be Anthony Tarricone, the newly installed president of the American Association for Justice (formely ATLA). Tarricone, from Boston, is a tireless advocate who is coming to the event to meet Rhode Island members and bring news from Washington.
Roger Williams University School of Law continues to blaze an impressive trail. The Providence Journal reports that the school celebrated the launch of a new Immigration Law Clinic on Wednesday that aims to provide legal aid to immigrants who would otherwise have none, and train a new generation of immigration lawyers. Professor Mary Holper, the clinic’s director, is supervising an inaugural class of 10 students who started last month. Holper is an experienced clinical director from Boston College Law School, with nearly a decade of immigration-intensive experience.
“I couldn’t be more excited about adding the Immigration Clinic to our clinical offerings,” said Professor Andrew Horwitz, RWU Law’s director of clinical programs. “The field of immigration law is dynamic and ever-changing and the legal needs of the immigrant community are vast and largely unmet. We will be providing a sorely needed service to Rhode Island’s low income immigrant population while at the same time providing our students with a top-notch educational experience in a burgeoning field of law.”
According to the law school, law student participation in the Immigration Clinic will consist of several components, including:
Direct Client Representation. Students will represent non-citizens (detained and otherwise) in their applications for relief from removal before the Immigration Court in Boston. They will argue bond motions for detained clients, conduct direct examination of witnesses, raise evidentiary objections and argue points of law.
Case Preparation. Students will research and write motions and memoranda of law, gather documents in support of applications for relief from removal, interview witnesses, draft affidavits and research human rights issues in the countries of removal. Students will also prepare applications for benefits and represent non-citizens in their interviews for such benefits before the local U.S. Citizenship and Immigration Services (CIS) office.
Community Outreach. Students will conduct “Know Your Rights” presentations for immigrant communities in Rhode Island and for non-citizens who are detained by the Immigration and Customs Enforcement (ICE) in the Bristol County House of Corrections in North Dartmouth, Mass.
Classroom Instruction. Each week, students will participate in exercises designed to develop their lawyering and trial skills while enhancing their understanding of the lawyer’s role in the process handling substantive, ethical and policy issues.
The direct costs of malpractice lawsuits — jury awards, settlements and the like — are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn’t mean the malpractice system is working.
The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Associationand the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.
At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.
After reviewing thousands of patient records, medical researchers haveestimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error — the teenager who died in North Carolina after being given the wrong blood type, the 39-year-old Massachusetts mother killed by a chemotherapy overdose, the newborn twins (children of the actor Dennis Quaid) given too much blood thinner — there are dozens more. You never hear about these other cases.
And this:
Medical errors happen more frequently here than in other rich countries, as the Robert Wood Johnson Foundation recently found. Only a tiny share of victims receive compensation. Among those who do, the awards vary from the lavish to the minimal. And even though the system treats most victims poorly, notes Michelle Mello of the School of Public Health at Harvard, “the uncertainty leads to defensive behavior by physicians that generates more costs for everyone.”
And this conclusion:
The problem is that just about every incentive in our medical system is to do more. Most patients have no idea how much their care costs. Doctors are generally paid more when they do more. And, indeed, extra tests and procedures can help protect them from lawsuits.
The event, entitled “Judicial Selection” will examine how judges are chosen across the country, comparing Rhode Island’s distinctive “merit selection process,” to the blended approach used at the federal level, to the many varying approaches in the states, including partisan judicial elections. The panel will also discuss the strengths and weaknesses of the approaches.
The forum will be moderated by District Court Chief Judge Mary M. Lisi and will be from 700pm to 900pm at the United States Courthouse (Courtroom 1, 3rd floor) located at 1 Exchange Terrace in downtown Providence.
The panelists will include Professor Michael Gerhardt, University of North Carolina School of Law; Alan Rudlin, Esq., Senior Partner, Hunton & Williams, Richmond, VA.; and Professor Michael Yelnosky, Roger Williams University School of Law
Two interesting bits of tabloid news on the legal circuit.
First, involving Rhode Island’s own Roger Williams University School of Law, the legal blog Above the Law reports that the law school is going all out to raise money. Personally, I don’t see the big deal.
Second, Salon.com reports that an appeals court denied the appeal of a death row inmate who claimed a conflict of interest between a judge and the prosecutor in his case who had previously been sleeping together:
If anyone had any doubt that the Texas justice system operates in a parallel universe, look no further than the latest decision by the state’s highest court in the case of death-row inmate Charles Dean Hood. On Wednesday the Court of Criminal Appeals (CCA) said it wasn’t interested in examining whether there was a conflict of interest in Hood’s 1990 trial simply because District Attorney Thomas S. O’Connell Jr., Hood’s prosecutor, had had a long-term sexual relationship with presiding Judge Verla Sue Holland, an affair the two tried to hide for 20 years.
THE BOSTON Globe, in its proposal for “pilot programs that make dispute resolution part of the health delivery system,’’ wrongly diminishes the importance of a patient’s right to be compensated for injury or death from negligent medical care (“Malpractice reform can help build a better health system,’’ Editorial).
Civil medical negligence cases are a compensation system for victims based on fault. Medical providers obtain insurance for that risk. It is the highly profitable insurance companies that fight against patients who seek compensation. This important aspect of our civil justice system has little relevance to the current debate over universal health care coverage.
The cost of medical negligence cases is less than 1 percent of the overall cost of health care. It is not, as the Globe asserts, the “fear of being sued’’ that “fosters costly defensive medicine.’’
Doctors order more tests because it benefits patients. The 98,000 deaths a year that the Globe attributes to medical errors suggest that diminishing a patient’s right to access to information and compensation is not a good idea. Imagine if the response to deaths by drunk driving was to weaken legal penalties?
The debate over civil medical negligence cases and the need to expand those rights because of the large number of deaths due to medical errors is important. However, the need to address ever-rising health care costs and their effect on the viability of universal health care is a separate and important issue.
On the same topic, renowned attorney and author Gerry Spence has some comments on the tort reform debate:
In a strikingly unusual move, the chief judge of Family Court, Jeremiah S. Jeremiah Jr., asked the Woonsocket police Wednesday to investigate allegations that several police officers brutalized a teenager in a city park and in police headquarters on Tuesday night.
Judge Jeremiah S. Jeremiah Jr. said the youth, 16, appeared in his courtroom on Wednesday with several visible injures including a swollen eye and contusions to his arms, neck and face. He also had a footprint on his back, the judge said.
The teenager told Jeremiah that the police assaulted him and shot him with a stun gun after he provided them with a false name and tried to run away. He was wanted by police for escaping from a probationary program administered by the state Department of Children, Youth and Families.
Jeremiah called Woonsocket Police Chief Thomas S. Carey and urged him to investigate the allegations of abuse. On Thursday, Carey said that he wants Jeremiah to send his department all of the relevant information about the alleged brutality and he will have his department’s internal affairs officer investigate.
Unlike other departments such as Providence, the Woonsocket Police Department does not have a Civilian Complaint form on their home page. You have to dig for it, but a complaint form is on their website here.
In separate segments, former and current leaders of the American Association for Justice (AAJ) countered the myth that capping medical malpractice lawsuits will reduce health care costs.
On CNN’s Anderson Cooper 360, Less Weisbrod and Todd Smith gave a blunt response in opposition to a federal cap on medical malpractice suits. Weisbrod declared such a cap to be unconstitutional and argued that there is no evidence to show that such a cap would lower healthcare spending. In response to President Obama’s assertion before Congress that doctors complain about the costs of practicing defensive medicine, Weisbrod suggested that Obama spend more time talking with victims of medical malpractice. Meanwhile, Smith countered the notion that meritless cases are brought by trial attorneys by arguing that lawyers have no logical reason to take a case with no chance of winning.
Meanwhile, on CNBC, Anthony Tarricone argued that “studies show there’ll be no appreciable decrease in the cost of healthcare by enacting any of the various so-called reforms that have been promoted. The only way to decrease the cost of healthcare is to reduce the number of preventable medical errors.”
Tuesday, the U.S. Senate unanimously confirmed Neronha. U.S. Senators Jack Reed and Sheldon Whitehouse commended the confirmation of Neronha.
“We applaud the Senate’s confirmation of Peter Neronha as Rhode Island’s next U.S. Attorney. Mr. Neronha’s years of exemplary service in the Attorney General’s office and the U.S. Attorney’s office have earned him respect throughout Rhode Island’s law enforcement and legal communities. We are confident he will do an outstanding job of serving and protecting the people of Rhode Island.”
As you might recall, Reed and Whitehouse recommended Neronha for the position in May, and President Obama formally nominated him in July. Best of luck to newly confirmed US Attorney Neronha.
Betty Nestlehutt didn’t like the bags under her eyes or the lines around her mouth. So she went to an Atlanta plastic surgeon for a facelift. Weeks after surgery, her skin began to die because the medical procedures cut off the flow of blood to her face. Gaping wounds opened from her temples to her chin. After extended treatment, the real estate agent was left permanently disfigured.
…After a trial, a Fulton County jury awarded Nestlehutt $115,000 for past and future medical expenses and $1.15 million in noneconomic damages, including $900,000 for her pain and suffering. The judgment was against Atlanta Oculoplastic Surgery, which is owned by Harvey “Chip” Cole, who performed Nestlehutt’s procedures.
Georgia’s tort reform law, championed by the heath care and insurance industries, caps noneconomic damage awards at $350,000. For this reason, the award should be reduced to $465,000 — $115,000 for medical expenses and the $350,000 cap, Atlanta Oculoplastic’s lawyers argued after the verdict.
But Fulton State Court Judge Diane Bessen declared the cap unconstitutional. It violates the state Constitution’s guarantee to a trial by jury, separation of powers and equal protection, she said in a Feb. 9 order. She acknowledged her decision was “charged with significant ramifications.”
The next meeting of the Federal Bench/Bar Committee of the Rhode Island Bar Association will be on Wednesday, September 30, 2009, at 4:00 PM in the Jury Assembly Room of the United States Courthouse in Providence, Rhode Island. Please note that the Federal Bar Association, Rhode Island Chapter, will hold its annual meeting at the conclusion of the Federal Bench/Bar Committee meeting. The agenda for the Federal Bench/Bar Committee meeting has been posted to the Court’s website and can be accessed here.
