Who Lobbies for the Victims?

In 10 days I head to Albany with other personal injury attorneys to lobby the legislature to keep the civil justice system open and available to New Yorkers. Why me? Well, if not me, who then?

You see the insurance companies have armies of lobbyists in state capitols around the nation. So do the massive health care giants, drug companies, and let’s face it, Fortune 500 companies all over the place. “Think tanks” and Chambers of Commerce that dream up ways to closde the courthouse doors to consumers don’t exist without money.

But those who’ve been victimized by the negligence don’t have those voices of influence at their beck and call. Victims become part of this group unwillingly, in unplanned ways. They have no organization. They don’t have access to the levers of power.

They only thing they usually have are the personal injury attorneys that are helping them with their case. Who also happen to be the ones that know about the problems with the laws that their new clients face.

For example, in years past I have written about:

• The problems with our No-Fault Laws (New York’s No-Fault Law Problem With “Serious Injuries” and New York’s No-Fault litigation mess (Do Our Judges Want Doctors To Go To Law School?);
• The problems of poorly paid judges (Where Are Our Judicial Pay Raises?);
• The inability of claimants to sue for grief (The September 11th Lawsuits And The Problem Of Compensable Grief in NY);
• The unsettled state of the law when it comes to medical liens (NY Court of Appeals Urges Legislative Action On Insurance Issues); and
• Counterfeit drugs (Counterfeit Drugs and My Appearance on Assembly TV).

So who fights for the injured? The people that represent them. Those of us who stand in the well of the courtroom to fight on their behalf. I’ll be heading up there with the New York State Trial Lawyers Association, of which I am a proud, card-carrying member, and have been for many years.

And if you are an attorney that deals with these types of cases, I have one question for you:
Are you lobbying your legislature? Because there aren’t any good reasons to answer no.

Arrested While Grieving, Their Civil Rights Suit Settles (Updated)

Two years ago, New York City Police arrested 33 teens, six of them minors, in the Bushwick section of Brooklyn. Their crime? They were headed off to a wake for a friend. Unfortunately, they were almost all black and Hispanic, which in many places is enough to get you stopped by the police and/or arrested.

Those arrests were the subject of an op-ed piece by Bob Herbert in the New York Times on May 26, 2007 (Arrested While Grieving). He wrote back then:

No one is paying much attention, but parts of New York City are like a police state for young men, women and children who happen to be black or Hispanic. They are routinely stopped, searched, harassed, intimidated, humiliated and, in many cases, arrested for no good reason.
…
Last Monday in the Bushwick section of Brooklyn, about three dozen grieving young people on their way to a wake for a teenage friend who had been murdered were surrounded by the police, cursed at, handcuffed and ordered into paddy wagons. They were taken to the 83rd precinct station house, where several were thrown into jail.
…..
Children as young as 13 were among those swept up by the cops. Two of them…were the children of police officers. Some of the youngsters were carrying notes from school saying that they were allowed to be absent to attend the wake. There is no evidence that I’ve been able to find, other than uncorroborated statements by the police, that the teenagers were misbehaving in any way.

Everyone was searched, but nothing unlawful was found, no weapons, no marijuana or other drugs. Some of the kids were told at the scene that they were being seized because they had assembled unlawfully.

According to Michael Scolnick, a civil rights attorney that represented 16 settling plaintiffs, an agreement was reached recently in federal court to dispose of those cases. The settlements ranged from $9,000 to $20,000. Scolnick said:

The settlement was on two levels: the 6 boys and girls (under 16 years of age) who either were not charged or were given desk appearance tickets and later dismissed without appearing, but were in custody from two to six hours, cuffed to a pipe or a Snapple machine, each settled for $9,000. The older ones who had formal charges issued against them for unlawful assembly and disorderly conduct settled for $20K.

All of the criminal charges against these 16 were dismissed.

This is a first report. A press conference has been scheduled for Sunday. Expect more press and information on this case in the days to come.

See also:

• Apology Is Sought After Arrests of 30 People on the Way to a Slain Teenager’s Wake (NYT, 5/25/07)

• Mass Arrest of Brooklyn Youths Spotlights Tactics (NYT, 6/24/07)

===============================

Update:
Bob Herbert followed up today on his original story from two years ago with another op-ed piece (No Cause for Arrest). He adds this priceless quote from Scolnick:

“I can’t imagine that 32 young white people walking down the streets of Scarsdale to pay their respects to a friend would have been arrested that way.”

Also, Scott Greenfield, who had written about the case two years ago, adds more at Simple Justice today (The Wake of a Wake):

The kids got at least something in return for being harassed, arrested and/or held in custody. As for Michael Scolnick, who fought for 16 settling plaintiffs, the fee will likely be scarcely worth the time and effort required by the case. But he did a good thing for some kids from Bushwick who needed someone who cared enough to help.

Linkworthy (Boston Marathon, BoBama, Eliot Spitzer, Sex and More!)

I’m heading up to Boston this weekend for the marathon, but I will run it only once, not four times. And, alas, writing this humble little blog didn’t qualify me as one of the 11 celebrity runners that have run marathons. The short list includes my good buddy Oprah, as well as George W. Bush and Sarah Palin. But for some reason Al Gore didn’t make the short list, so I guess I’m in good company.

For those that want to follow particular runners to track their progress — especially helpful if you are on the sidelines wondering if your runner is ahead/behind pace or can’t wait for the post-race email or phone call — you can have status updates sent directly to your email or phone during the race, because each runner has a radio frequency chip on his/her sneaker. My super-secret strategy, in case you were wondering, is this:

1. Finish; and
2. Have a good time.

And now I leave you with these links:

Scott Greenfield decided to read Eliot Spitzer’s article at Slate, where Spitzer chided conservative Seventh circuit Judge Richard Posner on a dissent he wrote. Spitzer claimed Posner did an about-face on his conservative principles (Posner Wrote What?). Except that Greenfield says the eagle-eyed Spitzer completely mis-read the opinion. Greenfield writes:

One would think that former ADA, former Attorney General, former Governor, Eliot Spitzer could read a short dissent with sufficient care to figure out which side was which before going public in an attempt to take on a circuit judge in a battle of wits.

John Day on 28 “Never Events” in medicine;

The Legal Satryicon knows that sex with clients is a big no-no in the U.S., but apparently not in England. Just don’t bill for it. From the TimesOnline:

“Lawyers are sometimes criticised for screwing clients with unwarranted fees. In a case in London, a client has alleged a rather direct version of that, saying her lawyer charged for having sex with her.” (Hat tip, Kevin O’Keefe)

Andy Hoffman responds at the Daily Kos to lawyer Philip K. Howard’s “Life Without Lawyers,”

First Puppy Bo Obama (Bobama or BoBama?) gives some unemployment tips: Bo Beats The Odds: How the First Pooch Secured One of the Most High-Profile Jobs In Washington; Let’s hope he doesn’t run into the problems that prior First Pooch Barney experienced, which he described to me last year in an interview;

Kevin Underhill reports that Nadya Suleman, also known as the “Octomom,” wants to trademark that auspicious title, since the single, unemployed, mother of 14 is unlikely to snag “America’s Sweetheart” (and duking it out with Courtney Love could get ugly);

Gerry Oginiski wants to know, is that a malpractice lawyer in the operating room???

Law21 brings you Blawg Review #207: All the News That Fits, in the style of the dying dead-tree edition; and

TortsProf has last week’s Personal Injury Law Round-Up, as well as this week’s.

Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work?”)

In a headline at Point of Law, the Manhattan Institute blog dedicated to tort “reform,” comes this: Texas Med-Mal Damage Caps Worked.

And in support of that headline, Andrew Grossman recaps this article with data about the reduction of payouts for pain and suffering (“non-economic” loss) since Texas slashed the ability of injured people to hold the wrongdoers accountable for their conduct:

The Texas cap reduced allowed non-economic damages in tried cases by an estimated 73 percent, allowed verdicts by 38 percent, and payouts by 27 percent. As expected, settlement payouts declined, by 18 percent.

But what, exactly does it mean for a statute to “work” when it reduces the ability of the most badly injured individuals to recover for their loss?

• Does offering government protectionism for tortfeasors mean it works?

• Does stopping those who’ve been victimized from recovering from their loss mean it works?

• Does destroying the concept of personal responsibility for one’s actions mean it works?

If the objective is to offer windfalls to those whose negligence has injured others then one might say it works. But that doesn’t makes it good public policy.

I’ve always found it odd that the tort “reform” movement is lead by those whose political philosophy is to have less government intervention and more personal responsibility. Because tort “reform” is just the opposite.

But some have seen the light. Below is a list of a few “reformers” that have been covered in this blog that no longer believe that insurance company profits are more important than making the victims whole again. I’ve excerpted it from The Bubbe Maisse Report (aka “Judicial Hellholes”):

Another Tort “Reformer” Sees The Light:

Dr. Dave Stewart is a California anesthesiologist. He supported tort “reform.” Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys.

Tort “Reform”, Trent Lott, and Changing Fortunes: Aside from Trent Lott, it deals with Frank Cornelius –

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana — the same sort of arguments that not underpin the medical industry’s call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

Tort “Reform” Gone Bad. And the Personal Injury Round-Up: With this story from a “reformer” and medical oncologist:

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.
…
As I’d expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn’t awarded any damages… The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state’s tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.

Tort “Reformer” Michael Savage Brings Lawsuit:

Right wing radio talk-show host and tort “reformer” Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a “book of hate” and said Muslims “need deportation.”

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees —

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount “in excess of $1,000,000,” plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

Remember: Tort “reform” is an idea promulgated by people who’ve never been badly injured by the negligence of others.
——————————————-
See also:

• Study Finds Texas Medical Malpractice Reforms Are Discriminatory (Perlmutter & Schuelke)

• Hypocrites of Tort Reform (Center for Justice & Democracy, 12/00) featuring, among others:

1. George W. Bush
2. ABC News Correspondent John Stossel
3. Sen Rick Santorum
4. “Lawsuit Abuse” Group Founder and Trustee, Sterling Cornelius
5. Texans for Lawsuit Reform Board Members

Lawyers Taking A Year Off?

On the front page of the New York Times today is a story on Skadden giving lawyers a year off if they want it, and they still pick up 1/3 of their pay. For the lawyer they profiled, that meant $80,000 to go have a good time. (see: $80,000 for a Year Off? She’ll Take It!)

Now some folks may balk at leaving the working world for a year, afraid of what might await them when they return. Since I happen to have taken a year off back in ’88-’89 to travel (see: It was 20 Years Ago Today…), I’ve got something to say on the subject. And a little advice.

Do it!!!!!!!!

And, unlike the subject of the Times piece, who wonders about the do-gooder legal projects she can engage in in other parts of the world during her year away, actually working is not part of the requirement.

If there is no spouse, kids or mortgage that you need to worry about — no keys that you need to take with you — it is a once-in-a-lifetime opportunity to see and experience things that you will never get a chance to see and experience again. When you don’t have to worry about the clock or calendar ticking, you get a chance to linger and look in ways you otherwise could not.

All you need are a passport, imagination and money. And Skadden is providing the money.

Sham Medical Exams for Litigation (A Round-Up)

Last week the New York Times ran a huge piece on phony medical exams that were used to deny injured people benefits in Workers Compensation exams. (Exams of Injured Workers Fuel Mutual Mistrust) I didn’t blog it then as I was starting a trial in New York, a trial made more difficult due to the Astor trial starting the same day and sucking all the jurors out of the system since it was in the same courthouse.

But this was the lede from the Times:

Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker’s back. “Mild spasm bilaterally,” he said softly. He pressed his fingers gingerly against the side of the man’s neck. “The left cervical is tender,” he said, “even to light palpation.”

Dr. Edward Toriello feels that workers’ doctors are often biased. “I think it’s human nature to help your patient. I think a lot of doctors say: ‘I don’t need the aggravation. It doesn’t hurt to keep him out of work.’”

The worker, a driver for a plumbing company, told the doctor he had fallen, banging up his back, shoulder and ribs. He was seeking expanded workers’ compensation benefits because he no longer felt he could do his job.

Dr. Samuels, an independent medical examiner in the state workers’ compensation system, seemed to agree. As he moved about a scuffed Brooklyn office last April, he called out test results indicative of an injured man. His words were captured on videotape.

Yet the report Dr. Samuels later submitted to the New York State Workers’ Compensation Board cleared the driver for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.

“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

The Times also has a related article from March 31st: For Injured Workers, a Costly Legal Swamp.

The problem of so-called “Independent” medical exams, or IMEs, that are dismissive of the injuries suffered by their fellow human are, of course, not limited to Workers’ Comp cases. They show up routinely in personal injury cases, especially auto cases where insurance companies and their attorney seek a report claiming that there is no “serious injury” (See: New York’s No-Fault Law Problem With “Serious Injuries”) and that therefore the case should be dismissed. The plaintiff’s bar calls these “defense medical exams,” since they are anything but independent.

These sham medical exams have also been the subject of litigation, including RICO suits. My posts on that subject has generated a tremendous amount of page views and commentary, some of which is from those involved in the exams and/or litigation:

• State Farm Hit With Civil RICO Claim Over Sham Medical Exams (2/4/8)
• Allstate Slammed With RICO Charge Over Sham Medical Exams (3/2/08)
• A Doctor, Sued In Insurance Company RICO Suit, Responds To The Charge
  (3/3/08)
• State Farm Hit With New RICO Suit, Brought as Class Action by Patient for Sham Exams
  (4/8/08)

The article and subject matter has also been the subject of commentary in the blogosphere:

• Doctors Paid for False Reports in Injury Cases? (Hochfelder)
• IME Doctors Caught on Tape (Miller)
• The New York Times Tells The Story Behind “Independent” Medical Exams (Perlumtter & Schuelke)
• Biased insurance medical exams reexamined (Shigley)

Paine to Pain 1/2 Marathon Trail Race: The Longest Trail Race Within 50M of NYC

I’m off-topic today to let those who run (or who have friends who do) know about a race that I organize called the Paine to Pain 1/2 Marathon Trail Race. It’s the longest trail race within 50 miles of NYC, so if you (or a friend) likes running, and rocks and roots and other gnarly stuff, this is as good as it gets in the New York metropolitan area. It starts at the Thomas Paine Cottage in New Rochelle.

Registration for the race, which will be run October 4th, just opened. This is our second year.

I organized the race after six years of working with local officials to get the Colonial Greenway in Westchester County built. This is an extensive trail system that includes New Rochelle, Mamaroneck, Scarsdale and Eastchester.

This is the race description:

The Paine to Pain is a giant single loop that winds its way through the woods and trails of several lower Westchester parks. You never run the same trail twice and will spend 90% of your time on dirt (and rocks and roots) in the shade of the woods. Many of the trails are completely hidden from public view and host a wide variety of wildlife including deer, fox, coyote, hawks, owls, heron, wild turkey, rabbit and other critters.

If you want to run it you can sign up at the Paine To Pain website. And if you want to volunteer, you can contact me.

Linkworthy

Scott Kreppein with some useful New York legal links;

This Blog For Sale

OK, I’ve had it. As I mentioned briefly last month, writing this blog over the last two and a half years has simply been too much work. And if its work, it isn’t fun. I’ve hit the wall. I can Twitter much easier, since I’m limited to only 140 characters anyway.

So rather than let the blog die a slow death, after putting so much effort into it, I’m going to sell it while I still have a readership. Any new blogger that comes in can easily replace me, and with a bit of savvy, do it in a more efficient manner and with only a modicum of decent writing. (Potential buyers can see some of my more popular posts here.)

I’m auctioning it on eBay, and starting the bidding at $1,000,000. Yes, I know some folks will think that is high, but let me explain a bit. If the new owner decides to monetize this blog by using it in an advertorial manner, then s/he only has to get a couple of decent cases to make the investment pay off. If done right, it could pay for itself in as little as a year or so. I therefore believe the actual sale price could be significantly higher.

How to monetize this blog to make it pay? That’s easy, as I’ve been reading search engine optimization sites recently and those SEO sites are loaded with good tips. I’ve also canvassed a few other personal injury blogs and picked up some pointers there. Here are some suggestions on how to improve this site to make the investment more than worthwhile:

1. Use a lot of keywords in the subject heading. Google loves keywords. Sticking keywords someplace at the start of every new post, like this, is great for Google. I generally suck at this part, as you can see if you look back in my archives. It’s easy to make this blog better with that tip alone.

2. Load the actual post with lots of keywords. Similar to the first one, and a technique I should have used in the past. I look back on some old posts and am stunned to see posts that have few, if any, of the keywords necessary to make the blog jump to the top of Google rankings. When people looking for a personal injury attorney see the same phrase repeated over and over and over they will know they have struck gold.
3. Cover all the local accidents as soon as you can. Want to know a secret about people in accidents? They often Google themselves to see if the accident was in the local papers. If you cover the accident on this blog, victims will likely find you and hopefully hire you. If you simply cut and past stories from local papers you are almost guaranteed to have an instant client base. And if you do it with style, you can look classy, too. Especially if you use the name of the victim (and this is another fine example) in the subject heading. Just make sure to put a reminder at the end of every post, “If you or a loved one have been injured, call us at this number…”
4. Outsource the actual writing. This is an easy way to create good content with little effort. Students, interns, paralegals and others can easily scoop up stories from the web to post under your name, or hire this guy. The cost is minimal, and in fact, can be lowered still more if it is simply outsourced to India. The blunt reality is this: No one will know. You can still practice law, see your family, watch TV and have time left over for eating and sleeping. Unlike me.
5. It’s a great place to talk about yourself. By continually recounting various cases, clients and appearances from your past, you’ll be able to strut your victories for other lawyers and potential clients to see. And since it is your forum, no one can stop you.
6. Link frequently to your website. This is another technique I’ve been lax about, but a new owner can really optimize here. Remember that Google loves inbound links. So when you use keywords in a post, which should be often, you also use them as anchor text for a link back to your web site, like this. Google sees these repeated links and the website skyrockets to the top of search listings. It’s easy. Just four links per post, and just five posts per week gives you 1,000 inbound links per year!
7. Get added to link farms. Since my blog has had high visibility, I get a lot of email about linking opportunities. I’ve never taken full advantage of that as you can see by my limited blogroll, which is obviously a mistake. But since Google loves those inbound links you can improve your SEO exponentially in mere weeks.
8. Attorney search company opportunities. Once again, due to having a high profile blog, I get a ton of opportunities that come in via email and phone, with various attorney search companies offering me exclusive rights on their service to personal injury leads in my geographic area. They are calling me ahead of others because of this blog. And only the best ones contact me. I know this because they tell me so.
9. Run Google Ads on the blog. It’s no secret that many people look for lawyers on the web. Why waste valuable real estate with content when the whole idea of blogging is to make money? Lots of Google ads equals lots of money.
10. Edit out the names and links I’ve provided to others in my area. It was probably a mistake for me to mention or link to others in my geographical area, as I could lose a potential client to them. The beauty of a blog is that you can go back and edit old posts. With a few minutes work, those names and links can be vaporized.

That’s it, I’m exhausted. My wife will finally get a husband back and my kids will see their dad once this blog is disposed of. And I’ll actually get a chance, perhaps, to play with the dog and go running again. I’ve simply run out of words for this forum. It’s time to hang up my keyboard, except for the bits I can put up on my Twitter account.

So this is really a spectacular opportunity for someone who wants more cases and can use an established web presence for their benefit. Of course, if you have all the business you can handle then don’t bother. Not everyone wants more cases.

How One Hospital Covered Up A Death — And One Doctor Refused to Go Along

This is an absolutely stunning story. A mother dies during childbirth and an investigation ensues.

But one doctor refuses to go along with the party line, which is to cover everything up.

“They killed my patient. Then they tried to hide it.” (Dr. Amy Teuter @ The Skeptical OB)

Related:

• Medical Malpractice and the White Coat of Silence (12/3/07)
• How Medical Malpractice Gets Covered Up (2/8/08)