These Things Don’t Write Themselves You Know

…Which is why, oftentimes, I will see a quite bloggable story but not get around to blogging it. By the time I do have a spare moment to sit down and pen (er, keyboard) a blog post about the story, the story’s expiration date will often be up, leaving me no choice but to pass the story over. (This blog is cutting-edge, people!).

But fortunately, a recent post by Walter Olson at Overlawyered.com gives me a chance to circle back around to one story that I intended to blog about but never did (until now):  the weeks-old saga of a $43,000 lawsuit brought against a wedding photographer by the (now) divorced groom, which seeks to force the photographer to recreate the wedding.

The story was originally published several weeks ago by The New York Times.

The story sparked outrage on many legal blogs because the groom’s claim for “specific performance” (i.e., having the photographer recreate the wedding so that satisfactory pictures could be taken) seemed so disingenuous. After all, why would the (now divorced) groom want pictures of what is presumably a bad memory? The lawsuit seemed like the ultimate frivolous/shakedown lawsuit.

Other blogs picked up on a different angle to the story:   the groom is the son of Shepard M. Remis, a partner in the Boston office of the national law firm Goodwin Procter, LLP.

A number of blog posts focused on the absurdity of seeking $43,000 in damages when the original contract called for the photographer to be paid only several thousand dollars for his taking the pictures.

Even the judge in the case, in ruling on a motion, said that the damages plaintiff sought are way too high.

What I didn’t see any bloggers saying is that, theoretically, the plaintiff could collect far more in damages than the contract price for the photography. There’s actually a quite famous contract case right on point. The case, Mieske v. Bartell Drug Co., is from Washington state. In Mieske, a woman paid a drug store to splice together a bunch of her home movies onto a single reel. The drug store, however, wound up losing the film.

Mieske filed suit. The question presented to the Washington Supreme Court was: What should the measure of Mieske’s damages be? Are damages limited to the amount that she paid the drug store to splice together the film? Or do proper damages include the emotional value that the film had for Mieske?

The Washington Supreme Court carved out a middle ground. The Court held that Mieske could recover more than the contract price in damages; in other words, Mieske could recover more than the several dollars she paid the drug store to splice together the film.

But a jury was not to value the film simply by the subjective value that Mieske put on it either. To the extent that Mieske was an overly sentimental person, the jury should not compensate her oversentimentality.

What the jury should do, the Supreme Court ruled, is compensate Mieske for the amount that a typical person would place on the emotional loss of the film.

The Mieske case, and others like it, mean that our divorced and disgruntled groom can (theoretically) recover far more than the contract price of the wedding photos.

And such a rule makes sense. Mieske’s loss was much greater than the several dollars spent on film development. And if your wedding photographer screwed up all the pictures of your wedding, the lost value to you would be much greater than the fee you paid the photographer.

In a post yesterday at Overlawyered.com, Walter Olson reported on another situation where emotional damages surpass contract cost: the loss of a pet. Texas’ Supreme Court recently overruled a 12o-year old case saying that pet owners can only recover the purchase price of their pet when someone kills it. The new rule in Texas allows for pet owners to recover emotional distress.

The legal rules found in the Mieske case and the new Texas case make a great deal of sense. But unfortunately, as the recent wedding photography lawsuit shows, they are susceptible to abuse.

And there’s not really much that a judge can do to stop lawsuits like the groom’s. A judge can’t say that the photographs obviously have no emotional value to the groom because the groom is now divorced; that’s something for a jury to decide, not a judge. And from what I’ve read, if this case ever goes to trial, it will result in a defense verdict.

Unfortunately in the meantime, the photographer will have to shell out to pay a lawyer to defend the case.

 

 

 

 

 

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Your Doctor’s Tie Could Be Making You Sick

….and his lab coat too.

We’ve known for a couple decades now that doctors’ clothing are big germ carriers.

Experts recommend that doctors wear shortsleeves to avoid spreading germs.

But a short-sleeved, tie-liess doctor does not convey to people a very professional image.

A doctor’s dress plays a big part in our conceptions of his competence. As one doctor noted a generation ago:

“The physician’s dress should convey to even his most anxious patient a sense of seriousness of purpose that helps to provide reassurance and confidence that his or her complaints will be dealt with competently. True, the white coat is only a symbol of this attitude, but it has also the additional practical virtues of being identifiable, easily laundered, and more easily changed than street clothes if accidentally soiled…. Casual or slovenly dress is likely to convey, rightly or wrongly, casual or inattentive professional handling of their problem….”

Now we’re beginning to see reformers like Julia Hallisy (who lost a daughter to a hospital-borne infection) campaigning for a change in doctors’ uniforms.

Doctors know better than to wear germ-carrying ties. But the blame for patients’ preconceptions of what a doctor should look like. We should trust our doctors based on training and credentials, not based on their fashion sense.

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Congratulations To Professor Bernabe

Last week, AbnormalUse marked its 500th post.

This week there’s another milestone in the torts law blogosphere worthy of congratulations: the third birthday of Prof. Alberto Bernabe’s Torts blog. Prof. Bernabe has blogged 1145 posts since Nov. 7, 2008.

1145 posts: all I can say is “Wow.” I hope to make it there someday too — if carpal tunnel does not derail me first.

 

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When It Comes To Health Care Savings, You Have To Think Big. Really big.

  Dr. Ezekiel Emanuel (brother of Rahm and Ari) had an op-ed in last week’s New York Times that hammered home how big you really have to think if you want to stabilize health care costs. As Emanuel pointed out, lots of conservatives and liberals have their own pet ideas for how to rein in the cost of health care. But most of these ideas are too small to really make a dent in health care spending.

We spend $2.6 trillion a year on health care. Our health care spending is growing at a rate of $100,000,000,000.00 annually. So, if your proposal for trimming the cost of health care comes to less than 100 billion annually, health care spending will still be growing, despite your reform. Emanuel proposes that any health care reform proposal should have to net at least $26 billion in savings. That’s one percent of our (current) health care spending.

By this criterion, $250,000 caps on damages in medical malpractice fail the test. As Emanuel notes, caps on medical malpractice damages would only save at most $11 billion a year. And they might even lead to higher health care costs as doctors become more careless. (Gee whiz, given that avoidable medical errors are our sixth-leading cause of death, do you think so?).

I thought Emanuel’s op-ed made a lot of sense but one thing that surprised me was the disparaging tone he took toward the idea of identifying “million dollar babies” (patients whose health care tabs run into the millions of dollars). Emanuel seemed to suggest that once we identify the “million dollar babies,” there’s no way to reduce spending on them, other than cutting them off from more health care services. Have you heard of hotspotting, Zeke? Maybe that’s worth a shot.

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A Business Legend Explains Why Insurance Companies Delay Resolving Personal Injury Claims

  Insurers always deny they’re acting in bad faith when they delay and dispute claims. They insist that they need to take so long to sort out the facts and determine if they are liable.

Trial lawyers and others have long insisted that these excuses are designed to conceal the insurance companies’ financial motives for stretching everything out.

This week, courtesy of a column by Arthur Licata in Massachusetts Lawyers Weekly, I came across a lengthy quote from Warren Buffet (a quote I don’t recall previously seeing) that perfectly explains how the insurance industry works.

Of course, the insurance business is a mainstay of Buffet’s Berkshire Hathaway and GEICO insurance and others are owned by Berkshire.

This is how Buffet explained the insurance component of Berkshire Hathaway in his 2009 letter to Berkshire shareholders:

“Insurers receive premiums up front and pay claims later. In extreme cases, such as those arising from certain workers’ compensation accidents, payments can stretch over decades. This collect now, pay later model leaves us holding large sums — money we call ‘float’ — that will eventually go to others.

“Meanwhile, we get to invest this float for Berkshire’s benefit. Though individual policies and claims come and go, the amount of float we hold remains remarkably stable in relation to premium volume. Consequently, as our business grows, so does our float.

“If premiums exceed the total of expenses and eventual losses, we register an underwriting profit that adds to the investment income produced by the float. This combination allows us to enjoy the use of free money — and better yet, get paid for holding it.”

What tort reformers and others don’t want you to understand is that the insurance business is really the investment business. When doctors’ medical malpractice premiums go up, doctors, ignorant of the insurance business, blame medical malpractice suits, instead of understanding that medical malpractice premiums are really controlled by investment returns, rather than payouts.

The next time sometime tells you they’re from an insurance company, think of it as a “getting paid-to hold-free money” company.

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Supreme Court Allows Patients To Sue For Defective Artificial Hips

On Halloween, the Supreme Court denied certiorari — that is it declined to hear — an appeal in Stryker v. Bausch, a case in which a woman sued for injuries she received from an FDA-approved artificial hip that was later recalled.

Since the lower court, the Seventh Circuit Court of Appeals, ruled in the woman’s favor, the Supreme Court’s decision not to hear the case allowed the woman’s victory to stand.

The argument on the part of the hip manufacturer was that the FDA approval process insulated it from liability.

We’ve seen what a joke the FDA approval process of medical devices can be. And we’ve also written a lot about how tort liability is superior to regulation — both from the perspective of compensating injury victims and from the perspective of insuring that the public has access to all kinds of new, safe medical devices.

So, two cheers for the Supreme Court. It doesn’t always get things wrong.

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Congratulations To Abnormal Use

Congratulations to our friends over at AbnormalUse, who recently celebrated a milestone:  their five hundredth blog post.

This blog is approximately as old as AbnormalUse and this post marks our 235th post, to give you some idea of how prolific AbnormalUse are.

AbnormalUse really makes their 500th post count too, sharing with readers some pearls of wisdom they’ve gained over the course of running the blog.

My own bit of wisdom for lawyers contemplating a blog: do it only if you love to write and/or write in your sleep. Blogging has to be its own reward; don’t count on your blogging winning you or your firm honors or acclaim. And write something worth reading. This xkcd cartoon on blogging pretty much sums up my view on blogging:

My other pearl of blogging wisdom: if you’re a lawyer-blogger who really wants to rack up the page views, make your blog political and news-oriented, rather than legal, like Althouse, Glenn Reynolds and Bill Jacobson have done. That’s part of why I admire AbnormalUse so much: they made it to 500 posts and managed to keep their blog’s focus intact.

 

 

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Deinstitutionalizing Nursing Homes

Today’s New York Times featured an article on a new, and quickly spreading, effort to deinstitutionalize nursing homes by changing their physical structure. Instead of occupying a vast hospital-like building, these new nursing homes are made up of clusters of arts-and-crafts style houses called “Green Houses.”

Each Green House is home to approximately ten residents. The floor plans are open and lead to interaction between staff and residents. For instance, food for the residents is prepared in a warm open kitchen, instead of some industrial-grade cafeteria, and residents will often make small talk with the cooks as they prepare their food.

There are currently 117 Green House nursing homes in the United States, with plans for more.

Residents of Green Houses experience fewer bed sores than those in conventional nursing homes, according to one survey, and each day they get 24 minutes more of direct and personalized care and 1.5 hours more of nursing staff time than those living in traditional nursing homes.

The cost of nursing care in a Green House is approximately the same as the cost of nursing care in a traditional nursing home, but the per-patient construction costs of building a Green House are slightly higher than cost of building a traditional nursing home.

Let’s hope the Green House movement catches on.

(A side note: thanks to a talented client who recently introduced me to the wonders of Greene & Greene‘s arts-and-craft furniture and architecture, I thought the “Green House” movement’s arts-and-crafts houses might have taken their inspiration from Greene & Greene, but, alas, it appears they are so named because the “Green Houses” originated with the Green Hill nursing home corporation).

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Speed Kills; The Consequences Are Forever

Via Andrew Sullivan (h/t Dave Hoffman), an arresting graphic about how a small difference in speed can multiply severalfold a pedestrian’s likelihood of dying in a car accident:

This is fact that could be played up a bit more by the public safety community. I’m aware of only one locale in the US where this fact is effectively publicized:  New York City. I’m not sure if they’re still up, but the Big Apple had a number of billboards showing a skull superimposed over a child’s face and saying, “At 20 mph, it is likely he’ll survive an accident; at 30 mph, he will most likely die. That’s why the City speed limit is 20 mph.”

Maybe instead of doing idiotic things like banning Segway tours, Mayor Menino could take a page from our friends in New York and have billboards plastered all over the City warning how a little difference in speed can make a big difference in survivability.

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Intellectually Lazy Or Logically Sound? A Reply To Dr. Donnell On Financial Incentives Affecting Guidelines And Clinical Trials

Dr. Robert Donnell, blogging at KevinMD.com, authored a post over at Kevin.MD the other day entitled, “Judging A Guideline Just By Financial Interest Is Intellectually Lazy.”

The post was in response to recent investigative journalism criticisms centering around the fact that that medical societies responsible for authoring treatment guidelines often have a financial stake in their recommendations. For an introduction to some of the investigative journalism on this topic, you can check out ProPublica’s work here on the financial ties between the National Lipid Association and the pharmaceutical industry.

Dr. Donnell thinks the journalists and others who have attacked guidelines based on the financial interests of research authors, etc., are “intellectually lazy.” Dr. Donnell thinks the criticisms of guidelines that point to the financial interests of medical societies and individual researchers also represent a logical fallacy. Donnell writes that these attacks are, “an ad hominem attack (and therefore fallacious) because virtually all of the criticisms of guidelines that have been written are based not on the science or the [journal articles] referenced in the guidelines but on the company they keep.”

Dr. Donnell may be right that a lot of the investigative journalism pieces may not engage with the science; they may simply point to sinister-seeming associations between drug and medical device companies and the illustrious doctors who promulgate the guidelines.

So what does the science say? Is there any scientific, empirical basis for finding a research study or clinical trial to be less trustworthy based on the fact that it was financed by a drug company? The answer is: YES.

For a great starting point, check out an article published by the prestigious British Medical Journal entitled, “Pharmaceutical Industry Sponsorship And Research Outcome And Quality:  A Systematic Overview,” which you can check out here. The authors of the BMJ article found that studies funded by a pharmaceutical company were four hundred percent more likely to give results that were favorable to the drug company than independent studies.

Oftentimes it’s difficult to discern how drug industry funding is influencing the methodology or results of scientific studies. You can read the “primary sources,” as Dr. Donnell, argues and engage with the science on its own merits and still not uncover anything askew, anything scientifically unsound. But nevertheless, there’s no getting around a brute empirical fact:  Scientific research funded by Big Pharma, for whatever reason, produces results that are biased in favor of the drug companies.That’s not ad hominem attack, that’s not casting aspersions on anyone’s integrity — that’s a scientific fact.

Examples of the empirical tendency for drug company-funded research to favor the drug companies’ own product abound. One fascinating meta-analysis compared the results of fifty-six different drug company-funded studies of painkillers. In each of the fifty-six studies, the painkiller marketed by the Big Pharma sponsor funding the study came in first place. How can all of fifty-six different drugs be better than each other? Answer: They can’t. The study authors’ financial ties presumably influenced their work. (You can engage with the science of that study by clicking here).

(For a wonderfully fun tour of drug company research shenanigans, check out Dr. Ben Goldacre’s wonderful book, “Bad Science:  Quack’s, Hacks and Big Pharma Flacks”).

Rather than being illogical or ignorant, assuming that someone’s financial incentives influence his actions is a basic principle of social science. Rule Number 4 of Harvard Professor Gregory Mankiw’s “Ten Principles of Economics” is “People respond to incentives.” Automatically discounting (to a certain degree) the findings of research studies, where the study has a financial motive is a sensible and reliable heuristic device for people who don’t have the time or the abilities to dive into the research firsthand.

Should you engage with the research studies firsthand if you are able to do so? By all means. But as some of the studies cited above illustrate, there are scientific reasons for viewing their results skeptically.

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