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Marketing Malpractice By Tort “Reformers.”

Posted by Andrew J. Barovick | Apr 08, 2012 | 0 Comments

Professor Theodore Eisenberg of Cornell Law School has completed a study on the empirical effects of the so-called tort “reform” movement in the U.S.  This was brought to my attention by the TortsProfBlog , which features the article's abstract.  Among Eisenberg's sober findings: 1) punitive damages were never out of control and in need of reform; 2) proponents of tort “reform” have rarely sought to address the ever present problem of poor quality care; 3) caps on non-economic damages have decreased costs, but have also likely decreased pressure on hospitals to improve poor care; and 4) there is no consistent evidence that tort “reform” has had any impact on on physician behavior or supply.

My favorite part of the abstract, though, is it's superbly understated last sentence. “While one cannot rule out specific statutory reforms as achieving more favorable results for defendants, the national scope of plaintiffs' declining success supports an explanation based on the social construction of knowledge by well-funded industry groups.”  Let me take a moment to translate this  into more direct terms: The industry groups that founded, funded and perpetuated  tort “reform,” such as tobacco giant Phillip Morris, have created, or more accurately, purchased,  their own version of “knowledge” that unsuspecting members of the public have swallowed in increasing numbers. And the end result is that average Americans associate plaintiffs, and their laywers, with hucksterism, while those who injure, kill, poison and pollute us remain barely accountable.

In the products liability arena,   reports that health officials in the U.K. are expressing concerns about the DePuy MITCH/Stryker Accolade hip replacement.  These are metal-on-metal devices, and, according to the the post, the medical device alert issued in the U.K. added to growing calls for an industry-wide recall.

And now, a word about misbehaving lawyers.  Most lawyers–that is, those who have intact brain function–know that you must tread very carefully if you are going to invest in one of your clients.  This ABA monograph , at page 27, gives a good idea of the kinds of conflict of interest pitfalls that exist for such lawyers.  Apparently, some Virginia lawyers failed to appreciate the message, so that when they were sued for legal malpractice, their professional liability carrier declined to provide them with a defense–a story well told in the VLW Blog .  The lesson here is, it is one thing to invest in your client, but quite another to exploit that investment for personal gain.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.