Archive for the ‘Lawsuits’ Category

Connecticut Jury Awards Smoker $8 Million Against Tobacco Co.

June 3, 2010

Despite the national headlines over the past decade or more regarding tobacco litigation, the state of Connecticut had never before seen a successful product liability action against a tobacco company. That is, until Barbara Izzarelli recently prevailed in her case against tobacco giant R.J. Reynolds. Law.com recently reported that a federal jury awarded Ms. Izzarelli $8 million as compensation for larynx cancer that she developed at age 36 and which she contended was caused by smoking R.J. Reynolds cigarettes for more than twenty years.

The case focused on R.J. Reynolds’ marketing strategy, primarily the company’s alleged efforts to specifically target the teen market back in the 1970’s when Ms. Izzarelli was a teenager and first began to smoke. Her attorneys, led by David Golub of the law firm of Silver, Golub & Teitell, alleged that R.J. Reynolds conducted marketing research on the smoking habits of youths as young as twelve and implemented various business practices directed at luring young people to cigarettes.

[Golub] contended that in the 1970s, after young smokers were attracted to flip-top boxes in which Philip Morris’ Marlboro cigarettes were sold, R.J. Reynolds developed new products to appeal to 14- to 20-year-olds. Golub further argued that those cigarettes were sold in popular teen hang-outs and at reduced prices.

While the jury found in Ms. Izzarelli’s favor, it did not absolve her completely of her own conduct in choosing to smoke for more than twenty years. The original verdict had been $13.6 million, but the jury found that Ms. Izzarelli was 42% at fault so the verdict was reduced to $8 million (Connecticut recognizes the doctrine of comparative negligence, meaning that a jury award can be reduced depending on whether, and to what extent, the plaintiff was negligent.). Still to be decided is the issue of whether R.J. Reynolds should be subjected to punitive damages, i.e., a monetary award intended to punish the company and deter others from engaging in similar conduct. Should punitive damages be assessed, the total award could potentially be as high as $24 million.

For Ms. Izzarelli, who will soon turn 50, this verdict was a long time coming. She was originally diagnosed with larynx cancer in 1996. She filed suit eleven years ago in 1999. According to her attorneys, she is currently “very disabled” and is unable to breathe through her nose or mouth. She instead uses a tube inserted in her throat. Because of her injuries, her diet is restricted to soft foods. Despite these limitations, Mr. Golub calls her “a remarkable woman to overcome these health problems and lead a normal life as much as she can.”

Despite the decade-long efforts to seek redress for her injuries, the verdict and the jury award are still not final. According to David Howard, a spokesperson for R.J. Reynolds, the company has promised to appeal the verdict.

“We’re disappointed in the decision in this matter,” said Howard. “We have several grounds for appeal and we are confident in our defenses going forward.”

Early comments by the defense indicate that R.J. Reynolds will challenge the trial court allegedly denying it the right to put on a ‘full medical defense’ in which Reynold intended to show that it was improbable that the plaintiff’s injuries were related to her smoking. The second issue mentioned post-verdict was the perceived error by the trial judge allowing “all youth marketing evidence despite the fact that, before trial, one of the plaintiff’s claims was dismissed because there was no evidence that the plaintiff was affected by any quote, unquote youth marketing.”

We will keep you posted on any developments in this case.

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A Social Networking Lesson for Parents: Think twice before you hit ‘send’!

June 2, 2010

It’s amazing how people continue to find new ways to get into trouble with social networking.

Photo by Davin Lesnick

Just a few years ago, a parent might get into trouble with his or her teenager by reading the teenager’s diary. Such domestic misdeeds seem almost quaint by comparison to what some parents are now doing on the Internet.

As reported by the ABA Journal and others, a mother in Arkansas has been convicted of harassing her own teenage son via the popular social networking site Facebook. While the mother and her teenage son had an admittedly difficult relationship before this (the teenager had lived with his grandmother for years), the teen never suspected that his mother would go to such lengths in her ongoing battle with him.

Denise New logged onto her son’s personal Facebook account after the teenager apparently left his account open on his computer. Perhaps many parents can appreciate the temptation of peering into their children’s online activities given such an opportunity. This mother, however, was not motivated by concern over her son’s well-being or even simple curiosity. Instead, Ms. New intended to post phony messages on his site purporting to come from him. For example, after the two got into a physical altercation and the police got involved, the mother posted a message on her son’s Facebook account (again pretending she was her son) essentially bragging that he had intentionally started the fight and called the police on his mother. Cell phone messages played in court corroborated that the mother was posting such phony messages. In other messages left on his site, the mother expressed regret at ever having a child and repeatedly used foul language. Putting all of this together, the court found that this conduct constituted harassment of the teenager. The mother was sentenced to 30 days in jail (suspended) along with probation and parenting classes.

As a reminder to all of us in this new world of social networking, the trial judge offered some sage advice:

“We live in a world now where what used to be said between two people or in a parking lot, now you hit a button and hundreds, maybe millions, of people can hear what you do,” he said. “It makes it maybe even more important for a person to think before they act because the amplification can be tremendous.” (Source: Arkansas Online)

Like it or not, we all now have the ability to broadcast information — even highly personal information — to the world.  Apparently, some of us are still struggling with deciding what information should be broadcast and what should be kept to ourselves.

Confidential Settlement Agreements: Which should win – privacy or right-to-know?

June 1, 2010

Understanding the term – ‘confidential settlement agreement’ – is the easy part. What’s the ‘sticky wicket’ of this ever-growing form of  settlement agreement? – the conflicting interests of the parties’ privacy concerns versus the public’s right to know.

Let’s start by providing you with the somewhat typical, generic language used (in some form or other) of such provisions in a settlement agreement:

Confidentiality:  The Releasing Party (Releasor) agrees that neither he nor his attorneys shall reveal to anyone, without prior written consent of the Party Being Released (Releasees), the facts or any of the terms of this Settlement and Release Agreement. Releasor will not disclose the identities of the Releasees, whose conduct was the subject of this lawsuit.  It is further understood and agreed to by the parties to this Settlement and Release Agreement that no part of this non-disclosure agreement shall be construed to prohibit counsel from making reasonable and necessary disclosures to carry out the administrative and ministerial tasks incident to this settlement.

Needless to say, these can be quite specific and many times are aimed at prohibitions of disclosure of not only the fact of settlement but also any specificity regarding the identity of the settling party and the amount of the settlement – basically prohibitions against disclosing any identifying information to the public and even more specifically to any form of media outlet. It’s one thing for Client Jones to tell his neighbors that he just settled his lawsuit for thousands or millions of dollars; it’s quite another when a settling doctor or hospital sees their name splashed across the print or online headlines of local media outlets.

The Settling Defendant’s Interests:

This is perhaps the easiest  to understand from the viewpoint of the person who agrees to pay settlement monies to the plaintiff who sued them. In the context of medical malpractice cases, no health care provider, especially a physician, wants their good-name/reputation tarnished by news of having settled a malpractice case. Since the reasons for agreeing to a settlement might be avoidance of a verdict  in excess of  the physician’s malpractice insurance, it could be argued that in such instances it is simply not fair to broadcast the fact that the physician settled because they knew they had done something wrong which hurt one of their patients. Keep in mind, that in settlement agreements there is usually a statement that the settling party – e.g. the physician sued for medical malpractice – denies all allegations of wrongdoing.

That being said, what about those instances – which are not the minority in our case load – in which the conduct of the health care provider does constitute a violation of the standard of care – aka medical malpractice/negligence? Why shouldn’t the public be aware that Dr. Smith did render bad care that caused serious harm? Was this just a ‘bad day’ for Dr. Smith in the operating room or  office or a pattern of poor care? Doesn’t the public have a right to know this?

Dr. Smith’s counsel will argue, as trained to do, that there is a defense to every case. In my 35 years of experience, this is often the case. Some defenses are better than others; some are flat out lame. Can’t the public decide on their own? Don’t they have a right to make that judgment? Some would argue they don’t since they don’t possess the expertise to understand the many nuances that go into these settlement decisions. Are they right? It seems you will never get the chance to decide since you will never know about what happened due  to confidentiality agreements.

The Plaintiff-Patient’s Interests:

It is unfortunately the case that when a number of our client’s wins a large amount of  cash in settlement or verdict, they fear their past and present friends and relatives will then come out of the woodwork. I liken it to professional sports figures whose coterie of friends are at  best ‘hangers-on’ for the money and good times.

People who have had to relive tragedies in their lives don’t want the pubic to know for a multitude of reasons.  We have represented people whose parents didn’t even know (and to this day don’t know) that they had been in a lawsuit and even gone through a trial! We have always respected the client’s right to privacy. Does that trump the public’s right to be informed?

The Plaintiff Lawyer’s Interest:

What interest could the lawyer possibly have? – you ask. Since this is my bailiwick, permit me to answer the question – marketing. Have you had occasion to visit the websites or print media advertisements of any plaintiff lawyers recently. If you have, I suspect you have seen the crawl or large font posting of verdicts and settlements blasted across the screen/page. If you have a confidentiality provision, this probably should not be the situation. I say probably because some lawyers insist that the right to publicize ‘anonymously’ be  crafted into the confidentiality agreement. Many likely do not have this ‘exception’ language but seem to have amnesia when it comes to this provision.

If you look at our website, you won’t see this form of advertising/marketing. Does this mean we haven’t settled a number of cases for large amounts of money for our clients? Hardly. Since the beginning of this year alone, we have settled a number of cases for millions of dollars, with the likelihood of many more  to come – God willing! We have elected to respect our client’s  right to privacy on the one hand. We have also determined that in some instances there will be no settlement if we put our firm’s interests of marketing ahead of the client’s ability to obtain a settlement, when the defendant is demanding confidentiality.

Do we have news accounts of past verdicts on our website? We do. Those cases went to trial and were deemed newsworthy enough by local media to report on the verdicts regardless of our position on marketing. They were in the public domain; we took the marketing advantage. Hey, we’re just being lawyers. Have these cases gone to appeal or settled post-verdict? You’ll never know.

Have we settled cases for millions of dollars?  Well, you’ll never know that either. We do understand our client’s rights to privacy and right to  have their interests in obtaining a settlement ahead of our marketing interests.

So what is the answer?:

From the viewpoint of the advocates of the public’s right to know, they can effectively argue in most instances that the client doesn’t have a privacy right once a lawsuit is filed. This is a matter of pubic record. Anyone can go to the courthouse in your county or state (in the case of the District of Columbia – the Superior Court) and ask to see the court files – absent an order sealing a record, which is by far the exception rather than the rule. Even in situations where a case settles under a confidentiality agreement, if one looks at the court docket of any given case, you can trace the history of a lawsuit. When you see a dismissal, do you not understand that absent the case being dismissed in favor of a defendant on motion or by court order for failure to prosecute, the case most likely settled? What happened to the non-disclosure of the fact of settlement or the likely parties to the settlement?

Are there other means to determine if a medical malpractice case has settled? If so, for how much? Well there are and there are not. Were you aware that whenever a doctor settles a lawsuit he/she is reported to the National Practitioners Data Bank? Well, all the information one could ever want is stored there, but the public has no access to this data bank – at least in terms of getting information as to a specific healthcare provider. The following is the express statement on the NPDB’s FAQ page:

The Data Banks are prohibited by law from disclosing information on a specific practitioner, provider, or supplier to the general public. However, persons or organizations may request information in a form that does not identify any particular healthcare organization or practitioner for research purposes.

Well, there goes that potential source of right to know.

What about the local state licensing agencies?  Let’s take Maryland, for example. The entity that controls the licensing and disciplining of physicians in the state is known as the Maryland Board of Physicians. It also has a website, which, quite  frankly, is much more transparent and informative than many and certainly more informative than the NPDB. By going to the “Search Practitioner Profile” link, you can type in a doctor’s name and find out, among other things, if there has been any disciplinary action against that physician for the past ten years. Maryland should be applauded, in fact, for its access to information on physicians. Could it do more, perhaps. That’s for another day.

In the District of Columbia, did you know you can access similar information? I invite you to undertake this exercise. Don’t be thrown-off when you do your Google, MSN or other search engine inquiry and see the District of Columbia Board of Medicine, but then you find you have been linked to the California Department of Consumer Affairs – for the Physical Therapy Board of California. Must just be a broken link! Transparency may also have a different definition in D.C.

In many of our posts we urge our readers to be informed consumers when it comes to their healthcare. Is one of the ways to become educated about your doctor or the hospital to which you planned to be admitted the  ‘best’ or ‘right’ healthcare provider for you to do such a search? We think so – at least in part. Being sued or even settling a case does not necessarily mean a physician or hospital is a bad doctor or a bad hospital. It may, however, particularly in the case of the physician, be a place you may care to start your query.

So, what is the public’s right to know in terms of confidential settlement agreements? Does the public’s (i.e. your) right to know trump that of the patient/plaintiff or the healthcare provider/defendant? Should there be a restriction on the use of these agreements – even if that also means a prohibition on the lawyer’s right to publish these settlements on their websites or ads?

I encourage and welcome your thoughts and comments. Please take a moment of your time and share these with our community of readers.

Baltimore: After police officer accidentally kills bystander, settlement reached but terms confidential

May 31, 2010

A Rosedale woman, and mother of two, was killed when a Baltimore County police officer accidentily side-swiped her 1997 Mercury Tracer.

Bonnie Pappas, age 45, was traveling across Pulaski Highway when a police officer, Ray Pabon, sped over a hill at an estimated 85.7mph. The investigations conducted by both the Baltimore County Police Department and Pappas’ family found that Officer Pabon did not have the emergency lights and/or sirens on at the time of the collision.

A nearby liquor store’s surveillance tape confirmed that at the time of the crash, the cruiser lights and sirens were off. Ronald Parker, counsel for the Pappas’ family stated:

…an officer who arrived moments after the crash ran to Pabon’s car and turned on the emergency lights.

“We contend that had the officer had his siren and lights on when he was driving, our client would have seen or heard them,” Parker said.

A deputy states attorney for Baltimore County , Sue Schenning, later claimed that prosecutors had decided not to file charges of vehicular manslaughter. Grounds for this decision were claimed to be that lack of evidence could prove Officer Pabon acted with gross negligence, which is defined at times in Maryland as the conscious disregard for the high risk of others.

The Baltimore Sun reported that the civil suit was filed by Mr. Parker on behalf of the Pappas’ family, which sought $1 million in damages for Ms. Pappas’ estate and $50 million  for her two children. Although the suit was settled, the award and terms remain confidential. Keep in mind that Maryland ‘caps’ non-economic damages, such as pain and suffering and the distress and mental anguish of  loved ones who lose their beloved through the negligence of others.

Coming this Week: On the issue of ‘confidential settlement agreements,’ keep a lookout this week – should the public know? are they in the client’ s best interest? We’ll lay it out there for you to discuss and decide.

Florida’s doctor discipline system not tough enough, critics say

May 30, 2010

As a Florida-licensed attorney who spent 15 years working in consumer justice law firms in the ‘Sunshine State,’ I keep a watchful eye on trends and developments within various personal injury practice areas in Florida.  There is currently a real, legitimate concern regarding the system that is responsible for disciplining doctors who are licensed to practice medicine in Florida.  The Orlando Sentinel recently published an article how some believe there is much to be desired when it comes to how the  Florida Department of Health handles these matters.  

Consumer group Public Citizen last month ranked Florida the eighth most-lenient in the nation for disciplining doctors. The ranking stems from the number of serious actions per 1,000 doctors last year, when the state revoked the licenses of 94 and suspended 18 others. The toughest state disciplined doctors at rates three times as high. The trend has been true for a decade, the group said.

Critics contend the state does not act fast enough or toughly enough against the small share of practitioners accused of substandard care, negligence, crimes or improper behavior. Too often, they say, the state lets professionals such as Lan continue practicing while officials probe allegations of crimes or serious violations and injuries.

Regulators dismiss 90 percent of complaints that patients or others file against practitioners, more than 95 percent of those against doctors. When action is taken, the state rarely imposes serious punishments, such as revoking or suspending licenses.

There is ‘the other side’ of the story.  According to the article, some of the advocates for the way the system works take the following position:

State officials and some attorneys defend the system and say the criticisms are overstated. They say any system can be improved, but contend the state focuses on protecting the public from professionals who commit the most serious wrongs, and demands remedial training for professionals who make errors.

“I don’t see the evidence to support [the criticism]. We believe we are doing a good job,” said Lucy Gee, the health department’s director of medical quality assurance.

Gee said the process moves deliberately so it can be thorough. Cases remain secret because laws aim to keep baseless complaints from becoming public and unfairly tarnishing professionals, she said.

What about the doctors and individuals within the medical profession that repeatedly cause harm to patients or are charged with serious crimes (felonies) but are permitted to continue practicing medicine?  What about these same individuals within the profession, who do not receive ANY form of discipline whatsoever, or are allowed to continue practicing, while the investigation against them is pending. Here are just a few examples of such real world cases:

Dr. Stuart F. Tillman, a Tallahassee anesthesiologist arrested in July and charged with soliciting sex online from a police officer posing as a girl of 14.

Dr. Joseph M. Hernandez, formerly of Fort Lauderdale, who was arrested in Lake City in February and charged with trafficking narcotic pain pills and prescribing drugs for monetary gain. In 2006, records show the state banned him from doing surgery and temporarily suspended his license because his vision was severely impaired. In 2007, he was fined $5,000 for leaving part of an IV tube in a patient’s chest.

Dr. John N. Mubang, an internist in the Tampa suburb of Seffner who was arrested and charged in July 2008 with drug trafficking and prescribing controlled substances for monetary gain.

All three have pleaded not guilty, with trials pending. Hernandez and Mubang are practicing, according to their offices. Hernandez declined to comment. Mubang and Tillman could not be reached for comment, despite calls or messages left at their offices.

What does this say about the system that disciplines doctors in Florida?  Sure, there are many great doctors in Florida, but for the ones who put their patients’ lives at risk (through negligent treatment or otherwise) or are charged with serious crimes that may have an impact on their practice/medical license, the question remains: Would YOU want to have a surgical procedure performed by a doctor that has a criminal investigation pending against him or her that may land them in jail? I suspect you would prefer your doctor to be completely focused on your surgical procedure and not thinking about other ‘outside distractions.’  Shouldn’t there be additional aggressive safeguards in place that will IMMEDIATELY prevent the medical provider from committing more harm?

We leave you with this: Yes, emergency suspensions were put into effect 248 times in 2009.  However, compare that with the approximate 24,000 complaints that were filed against doctors and other members of the medical profession the same year, by both individuals and other agencies.  Are we really to believe that only 248 of those 24,000 cases required emergency suspension of one’s practice…??

IV infiltration leads to $1.5 million verdict when patient loses thumb.

May 29, 2010

Recent news from Georgia (where the state’s cap on non-economic damages was recently overturned): A patient, Johnnie Jackson, age 47, was awarded $1.5 million for pain and suffering in addition to recovery of his medical expenses, for injuries he sustained when delay in treating an infiltration of his IV ultimately led to the loss  of his thumb.

Mr Jackson presented to Coffee Regional Medical Center for complications resulting from a pancreatic condition on April 30, 2005. Mr. Jackson had a known history of diabetes and chronic pancreatitis.

Upon presentation, a nurse administered Phenergan and Demerol through an IV, which had been inserted into Mr. Jackson’s right wrist. At approximately 3:00 a.mm on the morning of May1, Mr. Jackson complained of swelling and pain at the site of the IV causing it to be removed 45 minutes later.

After nine hours of complaints, Mr. Jackson was examined by his physician, who found that the medications had leaked into the surrounding tissues. Mr. Jackson’s physician elevated the arm in a failed attempt to reduce the swelling. On the afternoon of May 2, Mr. Jackson was transported to the South Georgia Medical Center for advanced treatment.

A pretrial order revealed that Mr. Jackson was transported to  the medical center for the treatment of a blood clot that was found near his thumb.  During Mr. Jackson’s 24 day admission at the medical center, he underwent a multiple surgeries by an orthopedic surgeon, who was unable to salvage Mr. Jackson’s thumb.

Mr. Jackson’s attorney, Laura Shamp, filed suit against Coffee Regional and five treating nurses in 2007 alleging that Mr. Jackson was unable to work due to frequent hospitalizations caused by diabetes and pancreatitis, but that:

…the hospital gave him a ‘job’ of living without his thumb for the rest of his life, so he should be paid for it.

“Their defense was that the IV did not infiltrate and that even if it did, that was not what caused the loss of his thumb,” said Shamp. “They said it was simply that strange things happen and this was a coincidental blood clot that ended up contributing clotting at the same time.”

With the plaintiff’s permission, the named nurses were dismissed with the hospital remaining as the sole defendant. The Coffee County jury awarded Mr. Jackson $53,026 for medical expenses and $1.5 million for pain and suffering.

Wife suffers second-hand asbestos exposure from husband’s clothes. CA jury awards her huge verdict.

May 28, 2010

Bobby Evans was a loyal employee of the Los Angeles County Department of Water and Power (DWP) for nearly 25 years. Little did he know, he was exposing his wife to second-hand asbestos.

Rhoda Evans, wife of retired DWP worker Bobby Evans, was diagnosed with mesothelioma after years of washing Mr. Evans’ clothing that had been coated daily in asbestos fibers. For nearly 25 years, Mr. Evans unknowingly worked cutting cement water pipes that contained asbestos and brought these dangerous fibers home with him on his clothing. Certain Teed Corporation, the supplier of the asbestos cement pipes, neglected to warn consumers of the risks in using their products containing harmful substances.

Certain Teed Corporation had known about the risk factors of working with asbestos materials since the 1960’s, yet never placed warning labels on their products until 1985. By 1985, it was too late for Rhoda Evans, who now suffers from  a life-threatening, incurable cancer.

Mrs. Evan filed suit against the Certain Teed Corporation with the following accusations:

Certain Teed actually concealed the risk of asbestos exposure from DWP officials “in an effort to protect the $40 million in annual revenues the company made on selling asbestos-containing cement pipe to the county.”

The LA Department of Water and Power was also held partially responsible for the compensatory portion of the award for its failure to adequately protect Bobby Evans on the job.

Mrs. Evans was awarded $8.8 million for compensatory damages and an additional $200 million to be paid by the Certain Teed Corporation for punitive damages.  Attorney’s for the Corporation feel that the punitive damages award is unconstitutional and plan to appeal the verdict.

Since 1929, an estimate of 600,000 lawsuit have been filed for mesothelioma and asbestos disease. Whether the punitive damage award is lessened in the case of Mrs. Evans is unknown; however, it is expected to encourage manufacturers to settle such cases out of court, as opposed to trying them before a jury. Hopefully, this message sent by the jury will resonant among the manufacturing community as well: if you are aware of potential dangers to the users of your product, you better warn people about that danger while you are taking pr0active steps to correct it!

Actor Dennis Quaid sues drug maker

May 27, 2010

Last month, we reported in a blog through our website, how actor Dennis Quaid is involved as a patient advocate, after his newborn twins nearly lost their lives back in 2007, from a medical error that could have very easily been prevented.  Put simply, the precious twins were given two doses of Heparin instead of Hep-lock (an anti-coagulant medication widely used for children).  Why is this significant?  Heparin is a drug one thousand times stronger than what the twins were supposed to have received.

Earlier this week, it was reported in the Contra Costa Times, that Mr. Quaid has filed a lawsuit on behalf of his children.  As far as the extent of his children’s injuries, the article states “The children suffered internal injuries and shock, but the extent of what happened to them will probably not be known for years, according to the suit.”  The lawsuit alleges that vials of the 10,000 unit Heparin should have been recalled previous to what happened to his children, because other infants had already died from similar medication errors.  The suit also claims that the company responsible for making the drug, Baxter Healthcare, “was obligated to warn healthcare providers of the previous medication mistakes.”

We wish the best for the Quaid family, and hope that the discovery in this case shines a light on not only finding out exactly what happened in this case, but also makes information available that may be able to save the lives of other children from future similar medical errors.  We will continue to monitor the course of this case.

Social Media and the Attorney-Client Privilege: Waiving Your Privilege – Be Forewarned and Use Common Sense!

May 17, 2010

Last week I attended a brown-bag lunch meeting conducted by the Baltimore City Bar Association entitled “Ethical Considerations for Social Networking for Lawyers.” (Yes, you cynics – we do have ethics – most of us do at least.)

As the crowd gathered in the bar library, I was somewhat fascinated by the demographics of the group attending. Many of the attendees were from my generation and beyond. No, I’m not going to make it easy, you can click on the ‘About Brian Nash‘ link on our blog page and figure out my age. Let’s put it this way – I’m not just out of law school.

Initially I was impressed that the older folks even knew what ‘social media’ meant. Well, it turns out many of them have a different definition than we Tweeps, Friends and Followers. Guess they thought it had to do with advertising in the Sears, Roebuck & Co. catalog. (Boy, I hope they’re not reading this! – chances are they are not since it would require a computer.)

Let’s get down to the subject at hand. One of the topics that surfaced during the discussion was the issue of whether or not a client could be found to have waived the attorney-client privilege by communicating with their friends, followers and/or connections on social media networks. Further time was devoted to how ‘those-in-the-know’ have been dealing with this potential nightmarish issue. I want to share some of the group’s thoughts and some of my own on further reflection. My hope is that these ‘tips, tricks and warnings’ will prove to be of some help – not only the public as clients but to my fellow lawyers, who may not have considered these issues before.

The Attorney-Client Privilege:

Let me start by giving the requisite disclaimer: No, you are not my client because we are Friends on Facebook or following each other on Twitter or you are reading this blog. No, this is not legal advice. That’s the short version.

What is this privilege? I could quote Black’s Law Dictionary, but in the spirit of the internet, here’s what version 1.0 and 2.0 of the cyberspace’s bible (read: Wikipedia) has to say:

The attorney-client privilege is one of the oldest recognized privileges for confidential communications. The United States Supreme Court has stated that, by assuring confidentiality, the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation.

So how could a tweet, a posting or a comment potentially waive such a sacred and revered protection?

While what constitutes a waiver can at times vary from jurisdiction to jurisdiction and certainly from one fact pattern to another, there are some common principles of law that seem to apply.

  • the disclosure must be voluntary and inconsistent with the confidential nature of the attorney-client relationship.
  • the disclosure of the communication with one’s attorney by a client has been made to “unnecessary third parties.”

While law libraries are filled with cases interpreting and ruling on issues of waiver of the privilege, these two elements (intentional disclosure to an unnecessary third party) are sufficient to frame the issue for our discussion.

Does voluntary mean ‘intentional’ – or put another way: “Geez, I didn’t mean to do that.” The short answer (albeit being overly simplistic) is “no, not necessarily.” One of the central issues is – was the disclosure voluntary. Some courts and legal writers suggest that if the disclosure is “inadvertent” (therefore, not voluntary) that this is not a waiver of the privilege. Well, as with most things in the law, there is a laundry list of factors that can be considered to determine if a defense of inadvertent will withstand a challenge to waiver. Some of these might be as follows:

  • the reasonableness (a favorite legal word that can mean anything to anyone) of the precautions taken to prevent inadvertent disclosure
  • the number of inadvertent disclosures
  • the extent of disclosure
  • the delay and measures taken to rectify the disclosure

Well what if you didn’t intend it – or so you say? First of all, I’m not quite sure I want to be standing in front of a judge arguing that when you broadcast a communication you had with your lawyer on Facebook, Twitter or whatever other networking site you live on, you really didn’t intend to type what you typed and then hit ‘enter.’

Can there also be an implied waiver? – another meaningful legal term that keeps all of us lawyers in business. Without getting into a dissertation (more the subject of a law review article) on what constitutes an implied waiver, suffice it to say that this can occur when the client places the communication with their lawyer which goes to the heart of the controversy.

Intent (just like reasonable) generally speaking is one of those fuzzy terms that breeds litigation. For purposes of this article, let’s just focus on whether you intended to put this disclosure out there for your friends and followers. Was the topic you were communicating to your friends/followers (i.e. more than likely defined as “unnecessary third parties”) a confidential communication you had with your lawyer or maybe with your lawyer’s staff?

If it meets these two tests, you will have a difficult if not impossible hurdle to overcome in defending a claim by the opposing lawyer that you waived the attorney-client privilege.

You have now been warned – don’t do it! I know the devil made  your fingers fly over the keyboard when you told your 482 friends about what your lawyer just told you –  about how your case is progressing, or key information your lawyer just discovered, or even your lawyer’s brilliant strategy for getting you a top dollar settlement in your case. The “devil defense” is probably not going to work.

The same goes for lawyers. First of all, the privilege is not the lawyer’s; it belongs in modern jurisprudence to the client. I fully realize that you are just dying to share with your network of legal eagles your most recent brilliant strategy that even Clarence Darrow would never have thought of; however, if you reveal the strategy of a client’s case on such a public forum and it is discovered, you can probably expect a letter from your local attorney grievance commission.

While there are a host of related issues that I will be writing about in the future (e.g. tips and tricks for lawyers during the intake process to identify social media platforms your clients are frequenting, notifications in your fee agreements, and the like), I leave you with one final piece of advice (free at that!!): DON’T DO IT! Keep your communications with your lawyer (clients) off the public social media platforms.

I’m sure you are confident that your user name is so ingenious – LegalBoy528AZ  or imgonnaberichsoon – that you will never get caught. You type away figuring that you’re smarter than any dumb opposing lawyer. Trust me – you don’t want to make that assumption. In fact, in a future blog, I’ll discuss court rulings on this topic of discovery of social media data that may surprise you  – and not in a good way.

To borrow a catchphrase from the TV show Hill Street Blues – “Let’s be safe out there!” I might also add – “Let’s be smart our there!”

Fatal Plastic Surgery Case Results in $3.1 Million Settlement, but Jury Returns Verdict in Favor of Non-Settling Anesthesiologist

May 12, 2010

In March of 2005, Kathleen Cregan left her home in Limerick, Ireland to embark on a journey to the United States. She was heading to New York where she underwent a face lift by Dr. Michael Sachs. Wanting this surgery to be a surprise for her husband, she had told him that she was leaving home for a few days to attend a business course in Dublin.

Just hours after the completion of the face lift procedure, Ms. Cregan collapsed in the clinic bathroom from a blood clot that had formed overnight, which had passed from her pharynx into her trachea. Ms. Cregan quickly developed breathing problems and went into cardiac arrest, which resulted in brain damage.  Ironically, as the New York Times reported, Ms. Cregan later died on Saint Patrick’s Day.

Her family sued Dr. Sachs, as well as an anesthesiologist, Dr. Subbaro,  and a nurse, Susan L. Alonzo-Francisco, who were part of the medical team, for malpractice in State Supreme Court in Manhattan.

Dr. Sachs’s settled his portion of the lawsuit for $2.1 million last month. The case involving the nurse, Susan L. Alonzo-Francisco, was settled for $1 million on Friday. Dr. Subbaro proceeded to trial remaining steadfast that he was not negligent in his care of this patient. Even though the nurse had settled, the issue of her liability was submitted to the jury for determination.

The plaintiffs alleged that Dr. Subbaro had left the clinic and turned-over Ms. Cregan’s post-procedure care to Nurse Alonzo-Francisco, who, plaintiffs alleged, did not know how to utilize an endotracheal tube to alleviate breathing difficulties. It was also claimed that Ms. Alonzo-Francisco failed to dial 911 in a timely fashion.

The verdict: “late Friday afternoon, a six-member jury cleared [Dr. Subbaro] of responsibility in Ms. Cregan’s death. Jurors, who began deliberating on Friday morning, did not know of Ms. Alonzo-Francisco’s settlement, so they delivered verdicts exonerating her of responsibility as well. The settlement, however, will stand.”

So how did this lady, who lived on a farm in Ireland, come to be a patient of Dr. Sachs in New York?

Ms. Cregan found out about Dr. Sachs after reading an article about him in The Sunday Independent of Ireland, her family said. The article described him as “a leading cosmetic and facial reconstruction surgeon” in the United States, with a “highly confidential client list.”

But here’s what she didn’t know when she consented to his operating on her:

The article did not mention that Dr. Sachs had settled more than 30 malpractice lawsuits. But he was known as a master of generating publicity, even appearing on “The Oprah Winfrey Show” twice in the early 1990s. Dr. Sachs surrendered his license to practice medicine in 2008.

We have addressed this very issue of ‘Top Doctor’ does not necessarily mean best doctor. You simply need to do some homework on whom you are choosing to care for you or operate on you. Be an advocate for yourself – ask questions, don’t be embarrassed to do so. If  you have the time, do some research on the person you are entrusting with your health and perhaps even your life.